19. Ex.P/6, Ex.P/7, Ex.P/8 & Ex.P/9 are newspaper
cuttings comprising of news items with regard to alleged
distribution of currency notes by the respondent. A serious
objection has been raised as to the evidential value of these
documents, hence, it becomes necessary to examine the legal
position with regard to the evidential value of newspaper
reports. E.P. 03-2014 13
20. The learned Senior Counsel for the respondent has
cited Quamarul Islam vs. S.K. Kanta &Ors., reported in AIR
1994 SC 1733 and Samant N. Balkrishna vs. Jeorge
Fernadez & Ors., AIR 1969 SC 1201 in support of his
contention that a news item as such has no evidence in the
eyes of law, unless evidence of the reporter, editor or publisher
is brought before the Court who can testify as to how, when,
where and in what manner the material with regard to the
news item was collected and then in what manner it was
edited and modified.
21. In Quamarul Islam (supra), Hon’ble the apex
Court dealing with the issue of proof and evidential value of
newspaper report has held as under:-
" Newspaper reports by themselves are
not evidence of the contents thereof.
Those reports are only hearsay evidence.
These have to be proved and the manner
of proving a newspaper report is well
settled. Since, in this case, neither the
reporter who heard the speech and sent
the report was examined nor even his
reports produced, the production of the
newspaper by the Editor and publisher,
PW4 by itself cannot amount to proving
the contents of the newspaper reports.
Newspaper, is at the best secondary
evidence of its contents and is not
admissible in evidence without proper
proof of the contents under the Indian
Evidence Act."
22. In Samant N. Balkrishna (supra), Hon’ble the
apex Court has observed thus:
"......A news item without any further
proof of what had actually happened
through witnesses is of no value. It is at
best a second-hand secondary evidence. It
is well known that reporters collect
information and pass it on to the editor
who edits the news item and then
publishes it. In this process the truth
might get perverted or garbled. Such
news items cannot be said to prove
themselves although they may be taken
into account with other evidence if the
other evidence is forcible..."
23. It clearly emerges from the aforesaid enunciation of
law that a newspaper report by itself is no evidence of its
contents and that such report is only hearsay evidence. It
further emerges from the aforesaid pronouncements that to
prove the contents of the newspaper reports, the reporter,
editor or publisher who can testify as to how, when, from
where and in what manner the material published in the
newspaper was collected, should be examined .
From the averments made by the petitioner, it is
clear that he is not having any personal knowledge regarding
these allegations. Bharat Solanki – an independent candidate,
who allegedly, complained about the incident to the observer
of the Election Commission, has also not been examined
before the Court nor the complaint said to have been made by
him in this regard has been brought in evidence. Further, the
petitioner has neither adduced in evidence the alleged
newspaper clippings of ‘City Blast’ and ‘Balwas Times’ nor
the reporter, editor or publisher of these newspapers have been
examined in support of the allegation in this behalf. Thus, the
petitioner in terms of his pleadings, as such, has not adduced
any evidence to prove the allegations made in this regard in
para 17(2) of the petition.
High Court of Madhya Pradesh: Bench at Indore
Single Bench: Hon'ble Shri Justice Ved Prakash Sharma
Eelection Petition No.03/2014
Govind Sirvi
V
Smt. Ranjana Baghel
Dated: 23.01.2017.
Citation: AIR 2017 MP 41
This is a petition under Section 80 of the
Representation of the People Act, 1951 (for short ‘the Act’)
calling in question, the election of Smt. Ranjana Baghel
(sole respondent) – a returned candidate from constituency
No.199, Manawar (reserved for Scheduled Tribe), DistrictDhar,
in the general election for Madhya Pradesh
Legislative Assembly held in year 2013.
02. It is not disputed that in the general election-2013
for Madhya Pradesh Legislative Assembly, nine candidates,
including respondent Smt. Ranjana Baghel - the official
candidate of Bharatiya Janta Party and Shri Niranjan Dabar
– the official candidate of Indian National Congress, were
in the fray. The polling was held on 25.11.2013. Counting
of votes took place on 08/12/2013 and same day the result
was declared in which Respondent (Smt.) Ranjana Baghel,
who secured 55293 valid votes, was declared a returned
candidate. Her nearest contestant Shri Niranjan Dabar
secured 53654 votes.
03. Petitioner Govind Sirvi, claiming to be an elector
from constituency No.199, Manawar, has challenged the
election of the respondent alleging that during her election
campaign, she had indulged in corrupt practices within the
meaning of Section 123(1)(A)(b) of ‘the Act’ which
constitute a ground under Section 100(1)(b) of ‘the Act’ for
declaring her election to be void.
04. As many as five incidents of corrupt practices
have been alleged in para-15 of the petition which are
summarised as under:-
(i) That, on 24.11.2013, at around 11 a.m.,
the respondent visited village ‘Amlatha’ of Manawar
constituency and by way of gratification distributed
currency notes of Rs.1000/- to the villagers requesting
them to cast their votes in her favour; photographs of
this incident were taken by one Mukesh Nayak (P.W.2),
resident of Village ‘Amlatha’, on his mobile phone and
he after developing the photographs distributed them to
reporters of various newspapers; the incident was
widely published along with photographs in daily
newspapers of 25.11.2013 including ‘Dabang Duniya’
(copy Ex.P/6), ‘Jan Jan Jagaran’ (copy Ex.P/7), ‘Hello
Hindustan’ (copy Ex.P/8) and ‘Weekend Post’ (copy
Ex.P/9) published from Indore. It is further averred thatE.P. 03-2014 3
Gopal Kannoj (P.W.3) an independent contestant, had
complained in writing (vide Ex.P/1-C) about this
incident to the observer of the Election Commission.
As per the petitioner, he came to know about this
incident from news channel ‘Sahara Samay’,
newspaper reports, Mukesh Nayak (P.W.2) and Gopal
Kannoj (P.W.3).
(ii) That, on 25/11/2013 at around 11.40 a.m.,
the respondent visited Village-‘Kalikaray’ of Manawar
constituency and by way of gratification distributed
money to the electors to cast their votes in her favour;
Gangaram Singh Chouhan (P.W.10) – a Constable of
Police force, who was on official duty, took
photographs of this incident on his mobile, however,
the respondent and her supporters misbehaved with him
and after snatching his mobile destroyed the
photographs, regarding which same day he had lodged
FIR (copy Ex.P/10-C) at Police Station Manawar, on
the basis whereof Crime No.549/2013 was registered
against the respondent. It is further averred that, vide
Annexure P/11, Gopal Kannoj (P.W.3) also complained
same day in writing about this incident to the returning
officer of Manawar constituency; the incident was
published in various newspapers including ‘Nai Dunia’,
‘Dainik Bhaskar’, ‘Raj Express’, ‘Lok Swami’ and
‘News Today’, dated 26.11.2013. As per the petitioner,
he came to know about the incident from Gopal Kannoj
(P.W.3) who had also supplied to him the copy ofE.P. 03-2014 4
complaint made by him to the returning officer as well
as copy of FIR lodged by Gangaram Singh Chouhan
(P.W.10) with police.
(iii) That, one Virendra Jain, a famous
Businessman of utensils of Manawar locality and a
strong supporter of the respondent, on the basis of slip
issued by the respondent, by way of illegal
gratification, distributed utensils from his shop to the
electors to elicit their support for the respondent and
that in this regard the respondent herself made promises
to the voters to cast their vote in her favour, regarding
which a complaint in writing by one Om Solanki
(P.W.11), an election agent of Shri Niranjan Dabar, was
made on 24.11.2013 at around 11.50 a.m. to the
Election Commission, pursuant to which officials of the
Election Commission, same day, had visited the shop of
Virendra Jain and the incident was recorded by them as
well as by some other persons from the media present
over there. As per petitioner, he came to know about
this incident from Om Solanki (P.W.11) and one Sohan
Kaag S/o Shankar, resident of Village – Jagam Khedi,
Tehsil-Manawar, who had provided Compact Disc
(C.D.) of the incident to him.
(iv) That, on 11.11.2013, the respondent visited
village ‘Kali Bavdi’ of Manawar constituency and
when one Hemraj (Hansraj) Chouhan (P.W.5) the then
Village Sarpanch, and other villagers refused to support
her complaining that no developmental work was doneE.P. 03-2014 5
in the village, she threatened them to face consequences
for not supporting her in the election. It is further
averred that at the instance of the respondent, same
night, one Niraj Birthare, In-charge, Police Post -
Bakaner, P.S. Dharampuri, visited Village – Kali Bavdi
with police force and misbehaved with the villagers,
including Guddu @ Sukhram (P.W.6), who were
assaulted and arrested and that the police authorities
threatened the voters to support the respondent in the
election. It is further alleged that in this regard Hemraj
(Hansraj) Chouhan (P.W.5) and Guddu @ Sukhram
(P.W.6) next day i.e. on 12/11/2013 had made a
complaint to I.G. Police, Indore, and that the incident
was also published in newspapers – ‘Nai Dunia’,
‘Patrika’, ‘Dabang Dunia’, dated 13.11.2013; and the
villagers of ‘Kali Bavdi’ also called a ‘Bandh’ on
12.11.2013 to protest against this incident. As per
petitioner, he received information about this incident
from newspapers as well as from Hemraj (Hansraj)
Chouhan (P.W.5) and Guddu @ Sukhram (P.W.6).
(v) That, the respondent using her position as
Cabinet Minister got Abhay Singh Ahoriya, her brother
through custom of ‘Rakhi Dhaga’, posted at Manawar
Constituency as S.D.O. in order to obtain and procure
his assistance for furtherance of her prospects in the
election. It is further pleaded that Abhay Singh Ahoriya
directly and indirectly supported the respondent by
refusing to accept complaints against her and byE.P. 03-2014 6
overlooking illegal activities and corrupt practices on
her part. It is also averred, that a photograph showing
the respondent tying ‘Rakhi Dhaga’ to Abhay Singh
Ahoriya was published along with news items on
23/11/13 in daily newspaper ‘Balwas Times’ and ‘City
Blast’ published from Indore, through which, the
petitioner came to know about the same. Apart this, one
Bharat Solanki, an independent contestant also
informed him about this.
05. It is averred that the aforesaid acts on the part of
the respondent amounted to ‘Corrupt Practice’ within the
meaning of Section 123(1), 123(2) and 123(7) r/w Section
100(1)(b) of ‘The Act’ and, therefore, her election is liable to
be declared void.
06. The respondent in her written statement denied that
on 24.11.2013 she had distributed or offered money to the
electors of villagers ‘Amlatha’ in order to persuade them to
cast their vote in her favour. It was also denied that Mukesh
Nayak (P.W.2) had captured photographs of any such incident
including photograph Ex.P/5-C. The respondent averred that
photograph Ex.P/5-C is not an authentic document and that the
same is of ‘Vikas Yatra Rally’ held in February, 2013. The
respondent denied that on 25.11.2013 she had distributed
money to the villagers of Village – ‘Kalikaray’ and that
photographs of any such incident were taken by Gangaram
Singh Chouhan (P.W.10). It was further denied that the
respondent and her supporters had snatched the mobile from
Gangaram Singh Chouhan (P.W.10). The respondent averredE.P. 03-2014 7
that Gangaram Singh Chouhan (P.W.10) had lodged a false
report with police and a closure report has been filed by the
police in the matter before the Judicial Magistrate First Class,
Manawar which has already been accepted.
07. The allegation with regard to distribution of
utensils to the electors from the shop of Virendra Jain on the
basis of slip allegedly, issued by the respondent was also
denied. It was also denied that any video shooting was carried
out by officers of the Election Commission or other persons.
The respondent averred that the C.D., said to have been
procured from Sohan Nayak (P.W.4) with regard to alleged
incident of distribution of utensils, is false and concocted
having no evidential value. Though, the respondent did not
dispute that during election campaign, she had gone to Village
‘Kali Bavdi’, however, it is averred that around 50 supporters
of independent candidate Gopal Kannoj (P.W.3), who were
under the influence of liquor, obstructed her vehicle and tried
to damage it and further hurled abuses upon her shouting –
‘Gopal Bhopal Jayega Aur Ranjana Dholiya Jayegi’.The
respondent further averred that one of her supporters Shri
Kailash Rathore, came to her rescue and that in the meantime
police arrived there to control the mob. It is averred that in this
regard Kalash Rathore had lodged a report with the police
regarding which, a case is still pending before the court
against the supporters of Gopal Kannoj (P.W.3).
08. Denying the averments that Abhay Singh Ahoriya
is her brother by customary relation of ‘Rakhi Dhaga’, the
respondent averred that she celebrates the festival of ‘RakshaE.P. 03-2014 8
Bandhan’ on a large scale tying ‘Rakhi’ to various persons
and in the process, she had also tied ‘Rakhi’ to Abhay Singh
Ahoriya. It was denied that any support was solicited by the
respondent from Shri Abhay Singh Ahoriya or that he himself
helped or assisted the respondent in an unlawful manner
during the election.
09. The respondent also disputed that petitioner is an
elector of Manawar Constituency. Apart this, the respondent
averred that material facts with regard to the alleged ‘Corrupt
Practices’ have not been stated in the petition along with full
particulars and that there is a defect of non-joinder of parties
in as much as remaining contestants, who were in the election
fray, the Election Commission and Virendra Jain, against
whom, allegations have been made with regard to distribution
of utensils, have not been made party, though they happen to
be necessary party, therefore, there is a defect of non-joinder
of parties. The respondents further averred that newspaper
reports have no evidential value and that the alleged
photographs/video recordings are prone to manipulation,
editing and super-imposition etc., and, therefore, have no
evidential value. With the aforesaid, the respondent prayed for
dismissal of the petition with costs.
10. The Objection with regard to lack of material facts
and full particulars in the petition as well as non-joinder of
parties were also raised by way of I.A. No. 232/2014, which
was disposed of by this Court, vide order dated 16/03/15,
holding that necessary particulars with regard to allegedE.P. 03-2014 9
‘Corrupt Practices’ have been given in para-15 and that
Virendra Jain is not a necessary party.
11. Following issues were framed on 08/05/2015 in the
matter on the basis of pleadings of the parties:-
ISSUES FINDINGS
1. Whether Respondent with the
object of inducing the voters for
casting vote in her favour:-
1(i) On 24/11/2013 at Village
‘Amalatha’ of Manawar
constitutency distributed / offered
the currency notes to the voters as
gratification?
1(ii) On 25/11/2013 at Village
‘Kalikaray’ of Manawar
constitutency distributed / offered
the currency notes to the voters as
gratification?
1(iii) With the assistance of
Virendra Jain distributed/offered
utensils to the voters as
gratification?
Not proved
Not proved
Not proved
2) Whether on 11/11/2013
respondent with the help of Police
Officer Neeraj Birthare and other
police officers has directly or
indirectly threatened the voters of
Village ‘Kali Bavdi’ of Manawar
constituency for casting votes in
her favour?
Not proved
3) Whether at the instance of
respondent on 02/01/2013 Abhay
Singh Ahoriya was posted as
S.D.O. (Police) Manawar to
obtain and procure assistance for
the furtherance of the prospects of
respondent’s election and Shri
Not provedE.P. 03-2014 10
Ahoriya directly or indirectly
supported the respondent in her
election?
4) Relief and cost. Dismissed
Maintainability of petition:
12. Though no formal issue has been framed with
regard to the respondent’s plea that the petitioner is not an
elector from Manawar constituency, hence, this petition,
preferred under Section 81 of ‘the Act’, is not maintainable;
however, considering that the objection pertains to
maintainability of petition, the same requires to be decided
first.
13. The aforesaid plea has been made on the ground
that the right to prefer an Election Petition under Section 81 of
'the Act' has been conferred only on a candidate contesting the
election or an elector and allegedly, as the petitioner is not an
elector from Manawar constituency, the petition is not
maintainable,
14. In the instant case, the petitioner has specifically
averred in para-1 of the petition that he is an elector from
constituency No.199, Manawar, Distt. Dhar and that his name
in the voter list of the constituency is reflected at Sl. No.115,
'Bhag' No.97, Village-‘Nigrani’ with voter I.D.
No.MTD0605956. The petitioner in support of his averments
has filed Ex.P/11-C, a certified copy of the electoral roll of
Village Nigarni of Manawar constituency for year 2013.
Nirmal Sharma (P.W.15), Naib Tehsildar – Manawar, has
deposed in this regard that in the electoral role of 'Bhag'E.P. 03-2014 11
No.97, Village-Nigrani, the name of Govind S/o Rukhdu, aged
35 is recorded at Serial No.115 and that Ex.P/11-C is the
certified copy of the electoral roll. It is not the case of the
respondent that Ex.P/11-C is a false or fabricated document.
15. Learned Senior Counsel Shri A.K. Sethi, appearing
on behalf of the respondent, has invited the attention of this
Court to cause title of the petition, wherein age of the
petitioner – Govind has been shown as 50 years. Further
attention is drawn to Ex.P/11-C in which at serial No.115, the
age of the elector Govind S/o Rukhdu is recorded as 35 years.
It is submitted by Shri Sethi that a wide gap of 15 years as
regards age of the petitioner, between the age mentioned in the
petition and recorded in the entry at serial No.115 in Ex.P/11-
C creates a serious doubt about veracity of Ex.P/11-C,
therefore, on the basis of Ex.P/11-C, it cannot be held that the
petitioner is an elector from Village-‘Nigarni’ of Manawar
constituency.
16. The aforesaid argument carries no force because
the entries in the electoral role with regard to age etc, are not
updated on year to year basis. Of-course, revision of electoral
roll is carried out regularly, but then usually it is not with
regard to age of the electors. Suffice to say that entry at serial
No.115 in Ex.P/11-C, which is a certified copy of public
record and, therefore, admissible under Section 76 of the
Indian Evidence Act, clearly shows that petitioner Govind S/o
Rukhdu, r/o Village-‘Nigrani’ with voter I.D.
No.MTD0605956 is an elector from constituency No.199,
Manawar and, therefore, the objection raised in this regardE.P. 03-2014 12
deserves to be rejected. Accordingly, it is held that in 2013 the
petitioner was an elector from village ‘Nigrani’ falling in
Manawar constituency and, therefore, it cannot be said that the
petition has not been preferred by a competent person.
Issue No.1(i):
17. It is alleged that on 24.11.2013, at around 11 a.m.,
the petitioner visited Village ‘Amlatha’ and in a meeting of
electors held near a temple, by way of gratification, distributed
currency notes in the denomination of Rs.1000/- to electors in
order to solicit votes in her favour which amounts to “corrupt
practice” within Section 123(1) of 'the Act’.
18. The petitioner in order to prove his case as regards
issue No.1(i) has adduced following evidence:
i) Newspaper reports – Ex.P/6, Ex.P/7, Ex.P/8 &
Ex.P/9.
ii) Ocular Evidence.
iii) Photograph Ex.P/5-C.
The evidence adduced in this regard needs to be
examined and appreciated.
EVIDENTIAL VALUE OF NEWSPAER REPORTS
19. Ex.P/6, Ex.P/7, Ex.P/8 & Ex.P/9 are newspaper
cuttings comprising of news items with regard to alleged
distribution of currency notes by the respondent. A serious
objection has been raised as to the evidential value of these
documents, hence, it becomes necessary to examine the legal
position with regard to the evidential value of newspaper
reports. E.P. 03-2014 13
20. The learned Senior Counsel for the respondent has
cited Quamarul Islam vs. S.K. Kanta &Ors., reported in AIR
1994 SC 1733 and Samant N. Balkrishna vs. Jeorge
Fernadez & Ors., AIR 1969 SC 1201 in support of his
contention that a news item as such has no evidence in the
eyes of law, unless evidence of the reporter, editor or publisher
is brought before the Court who can testify as to how, when,
where and in what manner the material with regard to the
news item was collected and then in what manner it was
edited and modified.
21. In Quamarul Islam (supra), Hon’ble the apex
Court dealing with the issue of proof and evidential value of
newspaper report has held as under:-
" Newspaper reports by themselves are
not evidence of the contents thereof.
Those reports are only hearsay evidence.
These have to be proved and the manner
of proving a newspaper report is well
settled. Since, in this case, neither the
reporter who heard the speech and sent
the report was examined nor even his
reports produced, the production of the
newspaper by the Editor and publisher,
PW4 by itself cannot amount to proving
the contents of the newspaper reports.
Newspaper, is at the best secondary
evidence of its contents and is not
admissible in evidence without proper
proof of the contents under the Indian
Evidence Act."
22. In Samant N. Balkrishna (supra), Hon’ble the
apex Court has observed thus:
"......A news item without any further
proof of what had actually happened
through witnesses is of no value. It is at
best a second-hand secondary evidence. It
is well known that reporters collect
information and pass it on to the editor
who edits the news item and then
publishes it. In this process the truth
might get perverted or garbled. Such
news items cannot be said to prove
themselves although they may be taken
into account with other evidence if the
other evidence is forcible..."
23. It clearly emerges from the aforesaid enunciation of
law that a newspaper report by itself is no evidence of its
contents and that such report is only hearsay evidence. It
further emerges from the aforesaid pronouncements that to
prove the contents of the newspaper reports, the reporter,
editor or publisher who can testify as to how, when, from
where and in what manner the material published in the
newspaper was collected, should be examined .
24. In the instant case, though newspaper reports
(Ex.P/6 to Ex.P/9) have been filed in support of the averments
that the respondent had distributed currency notes to electors
on 24.11.2013 in Village-‘Amlatha’, however, in view of the
aforesaid legal position, considering the fact that no reporter,
editor or publisher in connection with any of the news items
has been examined before this Court by the petitioner, the
evidence in the shape of newspaper reports, being hearsay in
character, deserves to be and is, therefore, excluded from
consideration.
25. Next, we look at the testimony of Mukesh Nayak
(P.W.2) and his father Sohan Nayak (P.W.4), both residents ofE.P. 03-2014 15
village ‘Amlatha’. Their testimony assumes significance
because they claim to be the eye witnesses of the alleged
incident of distribution of currency notes by the respondent to
electors on 24/11/2013 in front of the temple at village
‘Amlatha’. Mukesh Nayak (P.W.2) has deposed in para-2 that
on 24/11/2013, respondent – (Smt.) Ranjana Baghel came to
village ‘Amlatha’ and that the electors from the village had
assembled there nearby a temple and that the respondent
distributed currency notes in the denomination of 1000/- to
“all those persons”. To quote, this witness has stated that –
{Vernaculars omitted}
26. The testimony of Mukesh Nayak (P.W.2) that the
respondent distributed currency notes of Rs.1,000/- to ‘all
those persons’, who had assembled near the temple, does not
find support from Sohan Nayak (P.W.4), who, in para-2 of
his cross-examination has deposed that though, apart himself,
40 to 50 persons including Dadhu s/o Mittu, Omkar s/o Rama,
Rajaram s/o Bavu, Madiya s/o Chatriya, Hariom s/o
Naharsingh were present on the spot, but these persons
(named) had not received the money and that he only saw one
Raju s/o Mittu accepting money.The relevant part of the
testimony of Sohan Nayak (P.W.4) runs as under:
{vernaculars omitted}
27. Thus, there is material discrepancy in the testimony
of Mukesh Nayak (P.W.2) and Sohan Nayak (P.W.4) as regards
the persons to whom currency notes were distributed by the
respondent on 24/11/2013 in village ‘Amlatha’. Noticeably,
as per Sohan Nayak (P.W.4) – (para-2), he was not offered
money by the respondent. It is further noticeable that Mukesh
Nayak (P.W.2) has not stated name of even a single person to
whom currency note was given in his presence by the
respondent on 24/11/2013, therefore, his bald and general
statement that the respondent distributed currency notes to
many persons, bereft of specific details, carries no credibility,
particularly in the background of the testimony of Sohan
Nayak (P.W.4), who names only one person - Raju s/o Mittu,
as recipient of currency note. The petitioner has produced
neither Raju s/o Mittu, nor any other person, who can testify
that he was offered or given currency notes of Rs.1000/- by
the respondent on 24/11/2013, in village ‘Amlatha’.
28. The law is well settled that the allegation with
regard to corrupt practice is a serious allegation and the
standard of proof is akin to criminal charge where allegations
are required to be proved beyond reasonable doubt. The
observations made by the apex Court in P.C. Thomas vs Adv.
P.M. Ismail, (2009) 10 SCC 239, can usefully be referred in
this respect which are as under:
“Before we proceed to examine the facts
of the case to consider the question as to
whether charges of corrupt practices were
established against the appellant, we
deem it necessary to reiterate that a
charge of corrupt practice envisaged by
the Act is to be equated with a criminal
charge and the standard of proof thereof
would not be preponderance of
probabilities as in a civil action but proof
beyond reasonable doubt as in a criminal
trial.”
29. Thus, the allegations of corrupt practice are
required to be proved beyond reasonable doubt and that the
evidence should further exclude possibility of any other
interpretation. In the instant case, the testimony of Mukesh
Nayak (P.W.2) and his father Sohan Nayak (P.W.4), claimed
to be eye witnesses, is not at all inspiring, because it suffers
from a number of improbabilities, infirmities and anomalies,
therefore, the same cannot be relied upon.
30. Next, we need to consider Ex.P/5-C, the
photograph said to have been captured at village ‘Amlatha’ by
Mukesh Nayak (P.W.2) on 24/11/2013, while the respondent,
allegedly, was distributing money to the electors. As regards
Ex.P/5-C, the petitioner was required to prove that this
photograph was taken on 24/11/2013, as averred in the
petition, by Mukesh Nayak (P.W.2) and thereafter, he had
developed it and handed over its copy to the reporters of
newspapers. However, the testimony of Mukesh Nayak
(P.W.2) and petitioner Govind Sirvi (P.W.1) on this point does
not clearly establish that it happened in that very manner for
the reasons discussed herein after.
31. In this connection, it is noticeable that though
petitioner Govind Sirvi (P.W.1) has averred in para-15(1) of
his petition that he received photographs from Mukesh Nayak
(P.W.2), however, Mukesh Nayak (P.W.2), in para-7 of his
deposition, has denied that he provided photographs to
Govind Sirvi. In this connection, it is further noticeable that
though, it has been averred in para-15(1) of the petition that
photographs of the incident of village ‘Amlatha’ were
developed by Mukesh Nayak (P.W.2), however, Mukesh
Nayak (P.W.2), does not say that he had developed the
photograph; rather he has deposed that nether he has a
photography shop, nor he is involved in the profession of
photography and that the photographs captured by him were
provided to the newspapers through blue-tooth technology.
Obviously, the mobile, by which the alleged photographs were
taken, along with its memory card would have been the best
evidence in the matter, however, the same has not been
produced. The reason for non-production, as assigned by
Mukesh Nayak (P.W.2), is that he had thrown away the mobile
phone because the same had turned out of order. It appears
quite improbable that the mobile phone, having such a vital
piece of evidence, like the photograph of distribution of
currency notes by the respondent , will be thrown away by
Mukesh Nayak (P.W.2), that too after the filing of the petition,
simply because it had turned defective,. Therefore, the reason
assigned for non-production of mobile phone is not credible.
32. The reporters, who allegedly, were provided with
the soft copy of photograph of alleged incident of 24/11/2013,
by Mukesh Nayak (P.W.2), could have been brought before
the Court to prove that not only the photographs were
captured by Mukesh Nayak (P.W.2), but that the same were
also provided by him to the newspaper reporters, however, no
witness in this regard has been examined before the Court.
33. Shri C.L. Yadav, learned Senior counsel, appearing
on behalf of the petitioner, inviting the attention of this Court
to para-7 of the reply filed by the respondent, has submitted
that the respondent has not disputed photograph – Ex.P/5-C,
which was filed as annexure-P/3 with the petition, therefore,
the onus to prove that the same did not pertain to the alleged
incident dated 24/11/2013, but pertained to 'Vikas Yatra Rally',
February 2013, was upon her, which has not been discharged
in this case, therefore, it must be taken as proved that the
respondent in a meeting held on 24/11/2013, has distributed
currency notes to the electors in village ‘Amlatha’.
34. Per contra, Shri A.K. Sethi, learned Senior
counsel appearing on behalf of the respondent, has contended
that the facts are to be proved in a positive manner and that
negative burden of proof that photograph-Ex.P/5-C did not
pertain to alleged incident dated 24/11/2013, but, was of
'Vikas Yatra Rally', February 2013, cannot be put on the
respondent. It is further submitted that the photograph
Ex.P/5-C by itself does not establish that the respondent had
distributed currency notes of Rs.1,000/- to electors by way of
gratification for casting their votes in her favour.
35. The law relating to burden of proof is well settled.
In the instant case, as regards Ex.P/5-C, the question is
whether it is photograph of the meeting allegedly, held by the
respondent on 24/11/2013 in village ‘Amlatha’ near the
temple. The burden to prove a fact is always on the person
who has averred about such fact. If the initial burden is
discharged, then the onus is shifted to the opposite party to
prove the contrary. Unless the initial burden is discharged,
the question of shifting of onus will not arise. Further, the
facts are to be proved in a positive manner and not in a
negative manner. The petitioner has not been able to prove
the averment made in this regard in his petition; therefore,
the question of shifting of onus does not arise. Apart this, the
contention raised by the learned Senior counsel for the
respondent that the facts are to be proved in a positive
manner carries much weight. Obviously, the petitioner was
required to prove that Ex.P/5-C is of the incident which,
allegedly, occurred on 24/11/2013 in village ‘Amlatha’ near
the temple. The petitioner was required to prove the positive
fact and, therefore, the respondent cannot be expected to
prove that the photograph is not of the incident, which,
allegedly, occurred on 24/11/2013 in village ‘Amlatha’ near
the temple. Thus, the contention made on behalf of the
petitioner cannot be accepted.
36. From Ex.P/5-C, it can be gathered that the
respondent is sitting in a chair holding currency notes in her
hand and one person is standing on the right side, while two
persons are standing on the left side. The respondent in para
12 of her cross-examination has not disputed that in Ex.P/5-C,
she figures in front of the temple of ‘Amlatha’ having
currency notes in her hand, however, she has denied that she
was distributing notes to the voters. This photograph at best
goes to show that the respondent was holding currency notes
in her hand and one person on her right side and two persons
on her left side were standing, but then the photograph does
not further show that the currency notes are being given to any
person .
37. The persons who allegedly, were given currency
notes could have been the best witness to testify about the
allegation that currency notes were distributed by the
respondent to solicit their votes. However, not a single person
of village ‘Amlatha’ has been examined who can say that he
was given or offered currency notes by the respondent by way
of gratification to cast vote in her favour. As discussed in
earlier part of this judgment, the charge with regard to corrupt
practice has to be proved beyond reasonable doubt. Ex.P/5-C,
by itself, does not show that the persons who figure in the
photograph on the right and left flank of the respondent are
electors of village ‘Amlatha’. It further, does not show that
the respondent, who figures in the picture sitting on a chair, is
offering or distributing money to solicit votes in her favour.
Therefore, on the basis of Ex.P/5-C, it cannot be said that the
respondent offered or distributed currency notes of Rs.1000/-
to electors of village ‘Amlatha’ in a meeting held on
24/11/2013.
38. Thus from the evidence on record it is not proved
that on 24.11.2013, at around 11 a.m., the petitioner in a
meeting of electors at village ‘Amlatha’ held near a temple,
by way of gratification, distributed currency notes in theE.P. 03-2014 22
denomination of Rs.1000/- to electors in order to solicit votes
in her favour.
39. Issue No.1(i) is decided, accordingly.
Issue No.1(ii):
40. This issue pertains to the incident which, allegedly,
occurred on 25.11.2013 near 'Lony Fatta', village Kalikarai at
around 11-40 a.m. As per petitioner's averments, Constable
Gangaram Singh Chouhan (P.W.10), who was on official duty,
reached at the spot and took photograph of petitioner
distributing currency notes to voters, however, the respondent
and her supporters snatched his mobile phone and destroyed
the photograph regarding which, same day he had lodged a
report with police station Manawar, pursuant to which Crime
No.549/13 was registered. As per petitioner, the information
regarding this incident came to his notice through daily
newspaper reports of 26.11.2013 and also from Gopal Kannoj
(P.W.3), an independent candidate, who told that he had also
lodged a complaint with the Election Authorities and had also
supplied a copy of the report and the copy of FIR to the
petitioner (para 15.2 of the petition).
41. Obviously, the petitioner is not an eyewitness of the
alleged incident nor it is his claim that Gopal Kannoj (P.W.3)
had witnessed the same. As regards pleadings, the petitioner
has not stated that except Gangaram Singh Chouhan (P.W.10)
who, allegedly, took photographs on the spot, any other person
had witnessed the incident. Gangaram (P.W.10), who is said
to be an eyewitness of the alleged incident, has not deposed
anything to the effect that on 25.11.2013 at around 11.30 a.m.
or so he saw the respondent distributing currency notes to
voters. This witness has deposed that on 25.11.2013, while
going on his motorcycle to collect information , near 'Lony
Fatta', village ‘Kalikarai’, he saw 2-4 persons standing near a
vehicle holding currency notes of Rs.500 denomination in
their hand, therefore, he took their photographs on his mobile,
however, those persons had snatched away his mobile,
regarding which report (Ex.P/10) was lodged by him same day
at Police Station Manawar. In para-4 of his cross-examination,
this witness has stated that neither he knows those persons
who were standing near the vehicle nor he knows the name of
the persons who were holding currency notes of Rs.500
denomination in their hand. This witness has deposed in a
contradictory manner as regards presence of the respondent on
the spot. While in para-5 he has deposed that the respondent
was sitting in the vehicle, hence he had assumed that the
persons present over there were party workers of respondent
(Smt.) Ranjana Baghel; on the contrary, in para-9 of his crossexamination
this witness has stated that he did not see (Smt.)
Ranjana Baghel on the spot nor he knew the names of the
persons regarding whom he had earlier stated that they were
the workers of Ranjana Baghel.
42. It is argued by Shri Champalal Yadav, learned
Senior Counsel for the petitioner that at the relevant time the
respondent was a Cabinet Minister in the Madhya Pradesh
Government, therefore, it is not unusual that Gangaram Singh
Chouhan (P.W.10), who is an employee of the M.P.PoliceE.P. 03-2014 24
Force, had deposed in a contradictory manner and on the
adjourned date, retracting his previous statement, had come
with a new version that he did not see (Smt.) Ranjana Baghel
(respondent) on the spot.
43. Per contra, it is contended by Shri A.K. Sethi,
learned Senior Counsel appearing for the respondent, that on
29.10.2015, when Gangaram Singh Chouhan (P.W.10) was
examined for the first time, and subsequently on 18.10.2016
when he was further cross-examined, the respondent was not
holding the post of Cabinet Minister, therefore, it cannot be
said that Gangaram Singh Chouhan (P.W.10) changed the
version under duress. It is further contended that as per police
manual, police officers are required to make entry while
leaving and coming back to the police station. Gangaram
Singh Chouhan (P.W.10) in para-2 of the cross-examination
has admitted that a register was being maintained in the
Special Branch for recording despatch and return and that on
25.11.2013 after his return around 7-30 to 8.00 pm, he
recorded 'Amad' in the register with regard to the incidents of
the day, however, the incident narrated by him with regard to
village ‘Kalikarai’ was not recorded by him in the 'Amad’
report. It is contended that the conduct of this witness in this
regard is sufficient to hold that he is not at all reliable.
44. On careful examination of the testimony of
Gangaram Singh Chouhan (P.W.10), it emerges that this
witness has deposed inconsistently on very vital points. His
failure to record the incident in daily diary further creates
serious doubt regarding truthfulness of the version put forth byE.P. 03-2014 25
him with regard to the incident said to have occurred near
‘Loni Fata’ , village ‘Kalikarai’.
45. As regards First Information Report Ex.P/10,
Ranjit Singh Baghel (P.W.9) the Station House Officer, Police
Station Manawar, has stated that report Ex.P/10 was lodged by
Gangaram Singh Chouhan (P.W.10) on 25.11.2013 at 12.15
noon in the Police Station Manawar, on the basis whereof
Crime No.549/13 was registered. As deposed by Ranjit Singh
Baghel (P.W.9), the police had filed a closure report in the
matter because the persons interrogated in that regard had not
supported the alleged incident.
46. Though it has been contended on behalf of the
petitioner that FIR (Ex.P/10C) was lodged by Gangaram
Singh Chouhan (P.W.10) against the respondent, however,
column No.7 of this report shows that report was lodged
against 3-4 unknown workers of Bharatiya Janta Party
candidate Smt. Ranjana Baghel. As per the contents of para-12
of Ex.P/10-C, Gangaram Singh Chouhan (P.W.10) had
informed that 5-7 persons and 'the candidate' were
distributing money near village ‘Kalikarai’, which was
photographed by him, however, 3-4 workers snatched his
mobile phone after scuffle. Here it is noticeable that in the
written report made by Gangaram Singh Chouhan (P.W.10),
which has been reproduced in Ex.P/10-C, it is stated that he
found 5-7 persons standing near a vehicle who were talking
about 10-15 persons being taken to cast their vote and he
further saw these persons distributing currency notes of
Rs.500 denomination and that when he took a photograph,E.P. 03-2014 26
(Smt.) Ranjana Baghel and 2-3 other persons came to him and
snatched his mobile phone. Obviously, material contradictions
are there in the first and second part of the narration of column
-12. While in the first part, it is stated that currency notes
were distributed by "the candidate”, in the later part it is
stated that 5-7 persons were distributing the notes. In the first
part, there is no mention that the mobile phone was snatched
by Smt. Ranjana Baghel, in the second part the allegation is
that the mobile was snatched by respondent (Smt.) Ranjana
Baghel and her 2-3 party workers. Gangaram Singh Chouhan
(P.W.10) has deposed that only 2-4 persons were present on
the spot which again is contradictory to what has been stated
in Ex.P/10-C, therefore, the testimony of Gangaram Singh
Chouhan (P.W.10), being full of anomalies, cannot be
considered as reliable.
47. Om Solanki (P.W.11) ,who also claims to be an
eye-witness, has deposed that on 25.11.2013 around 11.30
a.m. near village ‘Kalikarai’ he saw the respondent
distributing currency notes in the denomination of Rs.500 to
some persons and that when a person tried to capture
photograph of this incident, the workers of (Smt.) Ranjana
Baghel scuffled with him and that the respondent herself
alighted from the vehicle and had snatched mobile phone of
that person. Om Solanki (P.W.11) has further deposed that
later on he had spoken to Gangaram Singh Chouhan (P.W.10)
who told him that he is a police constable and will report the
matter to the police. As per this witness, he also informed
about this incident to election observer Shri Solbade. E.P. 03-2014 27
48. Noticeably, there is no reference in the election
petition regarding presence of Om Solanki (P.W.11) at the time
of alleged incident of village ‘Kalikaray’. Secondly,
Gangaram Singh Chouhan (P.W.10) had not stated that Om
Solanki (P.W.11) had spoken to him about the incident. No
question has been put to Gangaram Singh Chouhan (P.W.10)
regarding presence of Om Solanki (P.W.11) at the time of
alleged incident. While Om Solanki (P.W.11) says that mobile
phone was snatched by the respondent, Gangaram Singh
Chouhan (P.W.10) says that 3-4 other persons have snatched
his mobile phone. Again, despite the fact that this witness was
election agent of (Shri) Niranjan Dabar, a candidate sponsored
by congress party, he did not made a complaint either to the
election commission or to the election observer or to the
police regarding this incident, which appears to be quite
unusual, particularly, for a person who was working as
election agent of a candidate of the election Therefore,
considered in totality, it cannot reasonable be said that Om
Solanki (P.W.11) was present on the spot and that he had
witnessed the alleged incident, in the manner as stated by
him in para-2 and 3 of his deposition.
49. Here we can also have a look at the testimony of
Gopal Kannoj (P.W.3) who contested as an independent
candidate and had lodged written complaint (Ex.P/1) with the
election commission with regard to alleged incident of
25.11.2013 near village ‘Kalikarai’. Gopal Kannoj (P.W.3) has
deposed in para-3 that, as per information received by him,
respondent Smt. Ranjana Baghel had scuffled with ConstableE.P. 03-2014 28
Gangaram Singh Chouhan (P.W.10) and also slapped him
regarding which he had made complaint (Ex.P/1) to Chief
Election Commissioner. Obviously, Gopal Kannoj (P.W.3) is
not an eyewitness of the alleged incident, as admitted by him
in para-9 of cross-examination. He says that information
regarding the incident was derived by him from Ramesh
Akhade, meaning thereby Ramesh Akhade had witnessed the
incident, however, he was not examined before the Court.
Therefore, the testimony of Gopal Kannoj (P.W.3), being of
hearsay character, has no evidential value.
50. In the aforesaid premises, the evidence adduced by
the petitioner does not establish that on 25.11.2013 around
11.40 a.m., the Respondent had distributed currency notes to
the villagers of village ‘Kalikarai’, so as to persuade them to
cast their votes in her favour.
51. Issue No.1(ii) is decided accordingly.
Issue No.1(iii) :
52. Pleadings as regards issue No.1(iii) have been
made in para-15(3) of the petition. As per the pleadings, the
petitioner himself had not witnessed the alleged incident of
distribution of utensils to the electors. The information in
this regard is said to have been derived from Om Solanki
(P.W.11) and Sohan s/o Shankar Kaag, resident of village
Jajam Khedi. The petitioner has averred that Om Solanki
(P.W.11) made a detailed complaint (copy Ex.D/2), in this
regard to the observer of the Election Commission,
whereupon, officers of Election Commission inspected theE.P. 03-2014 29
shop of Virendra Jain and caught him red handed
distributing utensils to the voters along with slip issued by
the respondent.
53. Sohan s/o Shankar Kaag, who allegedly, was
present on the spot and prepared a C.D. of the incident has
not been examined before the Court, nor the compact disc
said to have been prepared in respect of the alleged incident
has been brought in evidence, therefore, the testimony of Om
Solanki (P.W.11), who, allegedly , complained in writing
regarding distribution of utensils and the testimony of
Dinesh Patel (P.W.13), a government official, who is said to
have inspected the shop of Virendra Jain, in order to enquire
about the complaint, is required to be looked into.
54. As per Om Solanki (P.W.11), who claims to be an
eye witness, the slip , allegedly, issued by the respondent
was seized by the officials, who inspected the shop to enquire
about the complaint. Neither any slip has been produced by
way of evidence, nor Dinesh Patel (P.W.13), who allegedly,
inspected the shop of Virendra Jain on 24/11/2013, to
enquire into the complaint, has deposed that he had seized or
recovered any slip from persons found present in the shop of
Virendra Jain.
55. The evidence with regard to contents of the slip is
also anomalous. As per Om Solanki (P.W.11) – (para-7), he
had looked into the slip on which it was written –‘Virendra
Bai has given utensils worth Rs.5-6000’; “Usme likha tha ki
Virendra Bhai ne 5-6000 hazaar ke bartan diye the”.
Contrary to this, in para-6, this witness says that the slip boreE.P. 03-2014 30
the description that – ‘Virendra Bhai delivered utensils of
Rs.5-6000/- to them’. Thus, the evidence, as to what was
written on the slip, being anomalous, the same cannot be
considered as reliable.
56. Here is noticeable that the petitioner has not
pleaded that Om Solanki (P.W.11) was present at the time of
inspection. Further, the testimony of Om Solanki (P.W.11),
who says that he was present at the time of inspection of the
shop and the testimony of Dinesh Patel (P.W.13), who,
allegedly, inspected the shop, is quite conflicting as regards
number of persons found present in the shop. While Dinesh
Patel (P.W.13) has deposed that he found only two male and
two female persons in the shop; Om Solanki (P.W.11) says
that as many as 20 persons were present in the shop (para 20-
25). Further, Dinesh Patel (P.W.13), deposes that when he
reached the shop on 24/11/2013 to verify the complaint
received with regard to distribution of utensils to voters, he
found that the two female persons had purchased 13 bowls
for cash, while the two male persons told him that they had
come to fetch articles worth Rs.5000/- to 6000/- and that
they have been sent to procure the articles by ‘madam’. This
witness has further stated in para-7 that Virendra Jain was the
shop keeper and that though he cannot say as to whether the
two male persons had come to the shop to purchase the
utensils, however, it was revealed that they had come from
village ‘Thangaon’ and ‘Kankadpura’. This witness further
says that he did not find any worker of Bharatiya Janata Party
in the shop, something contrary to the testimony of OmE.P. 03-2014 31
Solanki (P.W.11), who has deposed in para-11 that Bharatiya
Janata Party worker Narayan Singh Soni and one other party
worker were present in the utensil’s shop.
57. The aforesaid evidence simply reveals that a
complaint was made by Om Solanki (P.W.11) regarding
distribution of utensils by Virendra Jain on the basis of
written slip, allegedly, issued by the respondent, however, no
slip was recovered. The evidence with regard to the contents
of the slip is also anomalous. The evidence with regard to
persons, who were present on the shop, at the time of
inspection by Dinesh Patel (P.W.13) is also anomalous.
Though it is stated that at the time of inspection, the
proceedings were video-graphed, however, no evidence in
this regard has been produced before the Court. Even the
memorandum, said to have been prepared by Dinesh Patel
(P.W.13), has not been brought in evidence. On the basis of
the evidence so adduced, it cannot be said to be proved that
on the alleged date, utensils were distributed to the voters by
Virendra Jain from his shop on the basis of the slip issued by
the respondent, so as to gratify them to cast their vote in her
favour.
58. Issue No.1(iii) is, accordingly, decided.
Issue No.2:
59. The allegation is that on 11/11/2013, the
respondent with the help of a Police Officer Neeraj Birthare
and other police officers has directly or indirectly threatened
the voters of Village Kali Bavdi of Manawar constituency toE.P. 03-2014 32
cast their votes in her favour. The testimony of Hansraj
Chouhan (P.W.5), Guddu @ Sukhram (P.W.6) and Rakesh
Suryavanshi (P.W.7), who are said to be eye witness of the
alleged incident is relevant in this regard. It is noteworthy that
the respondent, denying the averments of the petitioner in this
regard, has averred that she was not only obstructed by
supporters of Gopal Kannoj (P.W.3) from entering village
Kali Bavdi but they had also hurled abuses upon her and
further tried to damage her vehicle, regarding which Kailash
Rathor, her supporter, had lodged an FIR with the police.
Noticeably, Hansraj Chouhan (P.W.5) in para-15 has admitted
that pursuant to the report lodged by Kailash Rathor, District
General Secretary of Bharatiya Janta Party, a First Information
Report against him and 50 other persons was registered by
police and after investigation a charge-sheet has also been
filed against them, regarding which a case is still pending in
the Court.
60. The ocular testimony of Hansraj Chouhan (P.W.5),
Guddu @ Sukhram (P.W.6) and Rakesh Suryavanshi (P.W.7)
is required to be examined particularly on the point whether
the respondent had threatened the villagers of village ‘Kali
Bavdi’ to face consequences for not supporting her in the
election and further as to whether at her instance some police
officers from Bakaner-Police Post, including Police Post Incharge,
Niraj Birthare, visited Village ‘Kali Bavdi’ and asked
the electors to support the respondent in the election and also
arrested some electors and assaulted them.E.P. 03-2014 33
61. Though Rakesh Suryavanshi (P.W.7) and Guddu
@ Sukhram (P.W.6) have stated that they along with Hansraj
Chouhan (P.W.5) and other villagers were shouting slogans in
favour of Gopal Kannoj (P.W.3) and that the respondent asked
them not to raise slogans in favour of Gopal Kannoj (P.W.3)
and further asked them to support her, however, Hansraj
Chouhan (P.W.5) has admitted in para-1 that on 11.11.2013 on
arrival of the respondent to Village-‘Kali Bavdi’ for ‘Jan
Sampark’, he himself and some other villagers had shouted
slogans against her, as no developmental work was done in the
village. Guddu @ Sukhram (P.W.6) in para-4 has admitted that
he and Hansraj Chouhan (P.W.5) were working in favour of
Gopal Kannoj (P.W.3), an independent candidate. It further
transpires from the testimony of Hansraj Chouhan (P.W.5)
that slogans were shouted against (Smt.) Ranjana Baghel
when she tried to solicit their support in the election.
62. As regards the allegation that the respondent had
threatened Hansraj Chouhan (P.W.5) and other villagers, the
evidence of Hansraj Chouhan (P.W.5), Guddu @ Sukhram
(P.W.6) and Rakesh Suryavanshi (P.W.7) lacks consistency.
Hansraj Chouhan (P.W.5) says that the respondent asked them
to support her and not to work for Gopal Kannoj (P.W.3) and
that on their refusal she threatened to ‘put them into jail’. To
quote, this witness has stated that –
“muds }kjk dgk x;k Fkk fd ;fn ge yksx muds i{k esa
dk;Z ugha djsaxs rks os iqfyl ls dk;Zokgh djokdj gesa tsy
esa can djok nsaxsA”E.P. 03-2014 34
63. Guddu @ Sukhram (P.W.6), however, does not say
that any threat to put the supporters of Gopal Kannoj (P.W.3)
into jail was held by the respondent. He simply says the that
the respondent asked them not to shout slogans in favour of
Gopal Kannoj (P.W.3) and to work for her, else they will be
‘taught a lesson’ through police. To quote, this witness has
stated that:
"Jherh jatuk c?ksy us dgk fd] xksiky dUukSt ds i{k esa
ukjs er yxkvks] gekjs lkFk esa dke djks ,slk ugha djksxs
rks ge iqfyl ls lcd fl[kk,axsA"
64. In this regard, Rakesh Suryavanshi (P.W.7) has
deposed that the respondent simply solicited their support and
said that if they will not work for her, the ‘results will not be
good’. To quote, this witness has stated that –
"mUgksaus xkao okyksa ls dgk Fkk fd] vki yksx xksiky
dUukSt dk dke D;ksa dj jgs gSa mUgksaus dgk Fkk fd esjs fy;s
dke djks vkSj ;fn muds fy, dke ugha fd;k rks mldk
ifj.kke cqjk gksxkA eSa blds ckn ?kj pyk x;k FkkA"
65. Obviously, there is no reference in the testimony
of Rakesh Suryavanshi (P.W.7), that respondent had extended
a threat to teach lessons to the villagers through police or to
put them into jail in case of their failure to support her.
Therefore, the version put forth by Hansraj Chouhan (P.W.5),
and Guddu @ Sukhram (P.W.6), both being interested
witnesses as working for independent candidate Gopal Kannoj
(P.W.3), to the contrary is not at all inspiring.
66. Though it is alleged that in the midnight, one Niraj
Birthare, the then In-Charge, Police Post Bakaner, came to the
village with police force and had arrested some villagers andE.P. 03-2014 35
also assaulted Hansraj Chouhan (P.W.5) and Guddu @
Sukhram (P.W.6) and the matter was reported to the police as
well as I.G. Indore, however, the testimony of Hansraj
Chouhan (P.W.5), Guddu @ Sukhram (P.W.6) and Rakesh
Suryavanshi (P.W.7) regarding the manner in which matter
was reported to the police is quite anomalous. While Guddu
@ Sukhram (P.W.6) says (para-2 of the cross-examination)
that no written report regarding this incident was submitted by
him and other persons at Police Station Dharamapuri, where
they had gone to complain about the matter, and that
complaint to I.G. was also made orally, Hansraj Chouhan
(P.W.5) says that a written report was given at Police Station
Dharampuri and when they were not properly heard a
memorandum 'Gyapan' was submitted to I.G., Indore. Here it
is noteworthy that the copy of written report said to have been
given at the police station or the copy of the memorandum
said to have been submitted to I.G. Police, Indore, has not
been adduced in evidence. It is also noticeable that no
complaint was made to S.P. Dhar under whose jurisdiction
Niraj Birthare, In-charge, Police Station Bakaner was
working. There is further anomaly with regard to making
report in writing because Rakesh Suryavanshi (P.W.7) says
that Online complaint was lodged with I.G. Indore, however,
copy of such Online report has also not been filed. Further,
though Guddu @ Sukhram (P.W.6) says that he was assaulted
by police and was medically examined in the Government
Hospital, Dharampuri from where a treatment slip was also
issued which is in his possession, however, no record either
from the possession of Guddu @ Sukhram (P.W.6) nor fromE.P. 03-2014 36
the hospital with regard to examination and treatment of
Guddu @ Sukhram has been brought before this Court by way
of evidence.
67. As regards allegation of extending threats by Niraj
Birthare, In-charge, Police Station Bakaner, again the
evidence on this point is anomalous . As per Hansraj Chouhan
(P.W.5), Niraj Birthare said that if in future there is any slogan
shouting against the respondent then strict action shall be
taken which could lead them to jail. Thus, Hansraj Chouhan
(P.W.5) does not say that he was asked to support the
respondent, rather as stated by him, he was asked not to shout
slogans against the respondent. Guddu @ Sukhram (P.W.6)
also does not say that he was asked or threatened or
pressurised by Niraj Birthare to support the respondent. This
witness has deposed in para-1 that police asked them not to
conduct in such a manner in the future, else they will be
subjected to higher degree of assault. This witness has further
stated that the police had asked them as to why they have
‘hurled abuses’ against ‘madam’ and had done ‘marpit’ with
her. From this it clearly emerges that as such the police did
not pressurise the electors to support the respondent, so as to
further her prospects in the election. As regards Rakesh
Suryavanshi (P.W.7) as per his own admission in para-7 he is
not an eyewitness of the incident which allegedly occurred in
the mid night.
68. Thus from the evidence led by the petitioner with
regard to the alleged incident of village ‘Kali Bavdi’, it is not
established beyond reasonable doubt that either the respondent
had threatened the electors to support her or to face
consequences at the hands of the police or that the police
personnel of Police Post - Bikaner had pressurised or
threatened them to extend support to the respondent in the
election, else they will have to suffer adverse consequences.
69. Issue No.2 is decided accordingly.
ISSUE NO.3:
70. The petitioner with regard to issue No.3 has
averred in para-17(2) of the petition that the respondent
misusing her position as Cabinet Minister managed posting of
Shri Abhay Singh Ahoriya, her brother through custom of
‘Rakhi Dhaga’, as Sub-Divisional Officer of Manawar, for
procuring his assistance for furtherance of her prospects in the
election. It is further averred that Shri Ahoriya directly and
indirectly supported the respondent by refusing to accept
complaints against her and by neglecting her illegal activities
of corrupt practices. As per petitioner, he received information
about this incident through daily newspaper ‘Balwas Times’
and ‘City Blast’, published from Indore in which news in this
regard was published and also through Bharat Solanki – an
independent candidate, who had complained about it in
writing, vide Annexure P/25, to the observer of Election
Commission.
71. From the averments made by the petitioner, it is
clear that he is not having any personal knowledge regarding
these allegations. Bharat Solanki – an independent candidate,
who allegedly, complained about the incident to the observer
of the Election Commission, has also not been examined
before the Court nor the complaint said to have been made by
him in this regard has been brought in evidence. Further, the
petitioner has neither adduced in evidence the alleged
newspaper clippings of ‘City Blast’ and ‘Balwas Times’ nor
the reporter, editor or publisher of these newspapers have been
examined in support of the allegation in this behalf. Thus, the
petitioner in terms of his pleadings, as such, has not adduced
any evidence to prove the allegations made in this regard in
para 17(2) of the petition.
72. It is not a matter of dispute that during general
election 2013 Shri Abhay Singh Ahoriya was posted at
Manawar as Sub-Divisional Officer, however, this Court can
take judicial notice of the fact that on issuance of notification
of the election, postings and transfers of administrative
officers, who have to play a role in administrative matters
pertaining to election, are made under the directions, control
and supervision of Election Commission, therefore, simply
because the respondent was Cabinet Minister at the relevant
time, it cannot be inferred that she managed posting of Shri
Ahoriya as S.D.M. Manawar.
73. As regards tying of ‘Rakhi’ by the respondent to
Shri Abhay Singh Ahoriya, the respondent has averred that she
celebrates ‘Raksha bandhan’ festival at a large scale and that
during such celebration ‘Rakhi Dhaga’ is tied by her to
various persons and that in that process she had also tied
‘Rakhi’ to Abhay Singh Ahoriya. No evidence has been
brought before the Court that because of some social custom
the respondent in order to have relationship of sister and
brother has tied ‘Rakhi Dhaga’ to Abhay Singh Ahoriya, and,
therefore, both are having relationship of brother and sister.
Thus, it cannot be said that the respondent was having
customary relationship of brother-sister with Shri Ahoriya.
74. The allegation that Shri Ahoriya had refused to
accept complaints against the respondent and had also
neglected her alleged illegal activities of corrupt practices
appears to be baseless because the petitioner himself in para-7
of his deposition has stated that he had not made any
complaint against the respondent to Shri Ahoria and it is also
not within his knowledge as to whether Shri Ahoriya has taken
any action on any complaint made to him against the
respondent.
75. Here we can refer to the testimony of Om Solanki
(P.W.11) who was an election agent of Congress candidate
Shri Niranjan Dabar (Para-2). Though this witness has
deposed that he had made certain complaints to Shri Abhay
Singh Ahoriya on which no action was taken by him, however,
he stands contradicted by his own subsequent statement made
in para-6 in which he has testified that Shri Abhay Singh
Ahoriya, who was ‘Returning Officer’, had directed the
concerned officials to take immediate action with regard to his
complaint about alleged distribution of utensils by a
shopkeeper. Here it is also noteworthy that not a single
complaint made by Om Solanki (P.W.11), on which action was
not taken by Shri Ahoriya, has been brought in the evidence
before this Court.
76. Resultantly, the evidence adduced by the petitioner
does not at all indicate that either Shri Ahoriya was posted at
Manawar at the instance of the respondent or that he neglected
the alleged illegal activities of the respondent, so as to further
her prospects in the election. Issue No.3 is decided
accordingly.
Issue No.4: Relief and cost:
77. In view of the findings (supra) recorded by this
Court with regard to issue No.1(i), 1(ii), 1(iii), 2 and 3, it is
clear that the petitioner has not been able to prove his case,
therefore, this petition deserves to be dismissed.
78. Accordingly, this petition is hereby dismissed. The
parties to bear their own costs.
79. The Registry is directed to send an authenticated
copy of this judgment to the Election Commission of India
and the Speaker of Madhya Pradesh Legislative Assembly
under Section 103 of the Representation of the People Act,
1951, at the earliest .
CC as per rules.
No comments:
Post a Comment