Holding

Allegations of corrupt practice must be pleaded strictly under Section 83 of the Representation of the People Act and proved beyond reasonable doubt; the petitioner failed to meet this burden, so the High Court's dismissal is affirmed.

Summary

In the 2001 Assam Legislative Assembly election, the respondent Premodhar Bora was declared elected. The petitioner, Borgaram Deur!, filed an election petition alleging that Bora and his agents committed corrupt practices under Sections 123(3) and 123(3A) of the Representation of the People Act, 1951, by urging voters not to vote for the petitioner because he belonged to a Scheduled Tribe, thereby spreading communal hatred. The Gauhati High Court dismissed the petition, holding that the allegations were not proved beyond reasonable doubt, the witnesses were partisan and lacked independent corroboration, and a newspaper report could not be admitted as evidence. On appeal, the Supreme Court affirmed the High Court’s decision, reiterating that allegations of corrupt practice must be pleaded strictly under Section 83 and proved beyond reasonable doubt, and that the petitioner failed to produce reliable, credible evidence. Consequently, the appeal was dismissed.

Issues considered

Whether the petitioner proved the alleged corrupt practices under Sections 123(3) and 123(3A) of the Representation of the People Act, 1951 beyond reasonable doubt.
Whether a newspaper report can be admitted as evidence of the content of alleged speeches.
Whether testimony of interested witnesses can be relied upon without independent corroboration.
Whether the High Court erred in its assessment of the evidence and its dismissal of the election petition.

Legislation cited

Representation of the People Act, 1951s. 123(3), s. 123(3A), s. 83

Subjects

election petitioncorrupt practiceRepresentation of the People Actburden of proofreasonable doubtinterested witnesshearsayscheduled tribecommunal hatred

Judgment

BORGARAM DEUR! A
v.
PREMODHAR BORA AND ANR.

JANUARY 5, 2004

[V. N. KHARE, CJ AND S.B. SINHA, J.] B

Representation of the People Act, /9jl~Sections 123(3), 123(3A) and
83-Eleclion petilion-Allegations of corrupt praclice-Spreading hatred on
communal basis-High Court holding that charges not proved beyond C
reasonable doubt-Correctness of-Held: Allegations ofcorrupt practice must
be pleaded strictly in lerms of Section 83 and proved beyond all reasonable
doubt-Election petilioner failed to prove charges of corrupt practice against
re/urning candidate by adducing reliable and credible evidence-Hence order
of High Courl justified.
D
Legislative Assembly Elections were held and from one of the
constituencies, the first respondent was declared elected. Appellant filed
election petition alleging corrupt practice under Sections 123(3) and
123(3A) of the Representation of the People Act against respondent No. I.
It was alleged that in various meetings respondent No. I and his agents
delivered speeches before the gathering appealing them to vote for E
respondent No.I and refrain from voting in favour of petitioner as he
belonged to scheduled tribe community. High Court analyzing the evidence
on record held that the charge was not proved beyond reasonable doubt
and dismissed the petition. Hence the present appeal.

Appellant contended that the High Court erred in observing that F
charge of corrupt practice was not proved beyond reasonable doubt; that
the High Court even did not refer to the news item published in the
newspaper which would prove the contents of the speech delivered by
respondent No. I wherein the speakers asked the voters not to cast their
votes in favour of the appellant which was made to spread hatred against G
members of a Scheduled Tribe amounting to corrupt practice; and that
the interestedness of a witness cannot its.elf be a ground to disbelieve him
as certain witnesses may also be interested in speaking the truth.

Dismissing the appeal, the Court
103 H
104 SUPREME COURT REPORTS [2004] I S.C.R.

A HELD: I. The allegations of corrupt practice must conform to the
provisions confained in Sections 123(3) and 123(3A) of the Representation
of the People Act, 1951. It must be pleaded strictly in term~ of Section 83
of the Act and proved beyond all reasonable doubt. The allegations of
corrupt practices are considered to be quasi-criminal in nature. The
B standard of proof required for proving corrupt practice for all intent and
purport is equated with the standard expected in a criminal trial. The
difference between an election petition and a criminal trial is, whereas an
accused has the liberty to keep silence, during the trial of an election
petition the returned candidate has to place before the Court his version
and to satisfy the Court that he had not committed the corrupt practice
C as alleged in the petitiQn. The election petitioner must disclose the source
of his information in the election petition fully. His burden can be said to
have been discharged only if and when he leads cogent and reliable
evidence to prove the charges levelled against the returned candidate. The
charges must be proved beyond reasonable doubt and not merely by
preponderance of probabilities as in civil action. 1110-A-CI
D
Gajanan Krishnaji Bapat and Anr. v. Dattaji Raghobaji Meghe and Ors.,
AIR 119951 SC 2284; Surinder Singh v. Hardial Singh and Ors., 119851 I
SCR I 059; R. P. Moidutty v. P. T. Kunju Mohammed and Anr., 1200 I] I SCC
481 and Mercykutty Amma v. Kadavoor Sivadasan and Anr., 120031 AIR
E sew 6306, relied on.
2. In the instant case, the witnesses examined by the appellant-
elcction petition1!r in support of his allegation was found to be unworthy
of any trust by, the High Court. No independent witness from the village
had been examined by the election petitioner. Spreading of hatred on
F communal basis is an offence, but the appellant did not lodge any First
Information Report and no contemporaneous documentary evidence was
brought on record. The contents of the news item was not proved by
examining the reporter, the same could not have been exhibited legally
on the statement of the witness that the report had been published in the
newspaper. Therefore, was inadmissible in evidence. Even otherwise the
G manner iu which the alleged corrupt practice has taken place does not
inspire confidence. Also the listed witness had not been examined. The
names of the other witnesses examined by the appellant did not figure in
the list of the witnesses filed earlier by the appellant. Furthermore,
applying the test that the Court should be on its guard while evaluating
H the testimony of interested witnesses and they must be subjected to a closer
BORGARAM DEUR! v. PREMODHAR BORA [SINHA, J.] 105
scrutiny, High Court disbelieved the evidence of witness. Therefore, the A
appellant had not been able to prove the charges of corrupt practice
against the first respondent by adducing clear-cut evidence which can be
said to be wholly credible and reliable. They failed to prove the charges
of corrupt practice beyond reasonable doubt. Hence, the judgment of the
High Court cannot be faulted with. (110-D-H; 111-F-G; 112-A-CJ
B
Birbal Singh v. Kedar Nath, [19761 4 SCC 691, relied on.

Quamarul Islam v. S.K. Kanta and Ors., (19941 Supp. 3 SCC 5,
referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1300 of2003. C
From the Judgment and Order dated 19.12.2002 of the Gauhati High
Court in E.P. No. 8 of 200 I.

S.B. Sanyal, Manish Singhvi and Rameshwar Prasad Goyal for the
Appellant. D
P.K. Goswami, Rajiv Mehta, Rajiv Malhotra and B. Aggarwala for the
Respondents.

The Judgment of the Court was delivered by
E
S.B. SINHA, J. The election petitioner is the appellant herein. He filed
the said petition questioning the election held on 10.5.2001 and the result
whereof was declared on 13th May, 2001 declaring the first respondent herein
as having been elected from I 09 Bihpuria Constituency in the Assam
Legislative Assembly General Elections.
F
The appellant attributed corrupt practices against the first respondent
herein purported to be under Section 123(3) and Section 123(3A) of the
Representation of the People Act, 1951.

The full particulars of alleged corrupt practices had been set forth in the G
petition which are as under :

(i) "On 25.4.100! at about 2 P.M. when the petitioner was coming
from Bahgora Deurigaon to Biphuria Town in a Tata Sumo (hired)
vehicle accompanied by his wife and workers of the party Sri
Lakhi Kanta Hazarika and Sri Giridhar Gohain after paying a H
..
!06 SUPREME COURT REPORTS (2004] I S.C.R.

A visit to Shiv Mandir (Kundi Mama Mandir) the petitioner and
his superiors on their way themselves saw a gathering of about
200 men who were being addressed by the respondent No. I Sri
Premodhar Bora from the stage platform of Rangamanch situated
at Santhapur within Biphuria Police Station as a part of his election
campaign. The petitioner halted there for a while and hear the
B respondent No. I, the returned candidate urging upon appealing
to the gathering to vote for the respondent/ returned candidate
and to refrain from voting for the petitioner on the ground that
the petitioner belongs to the Scheduled Tribe Community, he
fmther shouted a slogan "Biphuria Bachao". The respondent No.
c I also appealed to the members of the gathering to refrain from
voting in favour of any candidate belonging to 'Scheduled Tribe
Community'. The respondent No. I made this appeal to promote
a feeling of enmity and hatred between different classes of the
people of I09 Biphuria Legislative Assembly Constituency. It
may be mentioned here that in the meeting aforesaid the
D respondent No. I was accompanied by his agents namely Sri
Ghanakanta Baruah and Sri Monoranjan Sharma and they also
delivered speeches before the gathering with specific slogan to
vote for the respondent No. I and to refrain from voting in
favour of the petitioner on the ground that the petitioner belongs
E to Scheduled Tribe Community. The respondent No. I and his
aforesaid two agents made the aforesaid slogan appealed to the
members to caste vote for the respondent No. I and to refrain
from voting in favour of the petitioner for furtherance of the
prospect of the election of respondent No. I and for prejudicially
affecting the election of the petitioner.
F
(ii) On 1.5.2001, respondent No. I Sri Premadhar Boralong with
Shri Monoranjan Sharma and Ghanakanta Baruah both are
counting agents of Mr. Premodhar (Respondent No. I) and also
Government servants both are teachers of Nehru Higher
Secondary School, Jamuguri under Bihpuria Constituen·cy
G organized a meeting at village Raidongia Namghar at about I
P.M. where about 200 voters attended the meeting. In the meeting,
the respondent No. I Sri Premodhar Bora and two other persons
mentioned above delivered speeches in succession and appealed
to the persons present in the meeting and to the people at large
H with the use of loud speakers to vote for him i.e. the respondent
BORGARAM DEUR! v. PREMODHAR BORA (SINHA, J.) 107
No. I and to refrain from voting in favour of the petiiioner on A
the ground that the petitioner belongs to Scheduled Tribe
Community. This appeal was made by the respondent No. I and
his two agents present there for the furtherance of the prospects
of the election of respondent No. I and for prejudicially affecting
the election of the petitioner, Sri Giridhar Gohain, Dlbyajyoti B
Bhuyan and other Congress workers witnessed the meeting and
clearly saw the respondent No. I hurling the above language
prejudicially affecting the prospect of the election of the
petitioner.\
(iii) On 7.5.2001, respondent No. I accompanied by Sri Ghanakanta
Baruah and Monoranjan Sharma and others held a meeting at C
Bihpuria Town at Ward No. 4 in a market house at about 6 P.M.
which was attended by about 150 voters of the said locality. In
the said meeting respondent No. I specifically appealed to persons
present in the meeting and the traders of the market to vote for
him and to refrain from voting in favour of the petitioner on the D
ground that the petitioner is a S. T. candidate and if he is elected
from the constituency, the constituency will be made reserved
for S.T. Community. By this words respondent No. I promoted
a feeling of enmity and hatred between different classes of persons
of that locality prejudicially affecting the election of the petitioner.
One Sri Rohini Bhuyan, working President Block Congress E
Committee, Bihpuria and Sri Salauddin a Congress Worker
witnessed the meeting and heard the speeches of Ghanakanta
Barua and Monoranjan Shanna."

The first respondent herein in his written statement denied and disputed
the said allegations. The parties adduced their respective evidences before the F
High Court. The High Court proceeded on the basis that the allegations made
in the election petition would amount to corrupt practice within the meaning
of Sections 123(3) and 123(3)(A) of the Act.

As regard the meeting dated 25.4.200 I, it was held:
G
"8. An analysis of the evidence and counter evidence adduced by the
parties in so far as the meeting held at Santapur Rang Manch on 25-
4-200 I and the alleged speeches made therein, are. concerned, reveals
that the evidence of both sides are replete with inconsistencies and
improbabilities. Certain unnatural aspects are noticeable in the evidence H
108 SUPREME COURT REPORTS (2004] I S.C.R.

A adduced by both the sides. There is nothing on record to make one
version inherently improbable and the other version eminently
acceptable. The witnesses examined by both sides are also partisan in
character and no independent witness has been examined by either
party. Keeping in mind, the principles laid down in an earlier part of
the judgment for determining the correctness of a charge of
B commission of corrupt practice by the returned candidate in an election
and having regard to the fact that such charge must be proved beyond
all reasonable doubt, I am of the considered view that the evidence
on rec<)rd being what it is, the first issue must be answered in the
negative and against the election petitioner."
c In relation to the second meeting held on 1.5.200 I, it was held:

"I 0. The arguments and counter arguments advanced on behalf of the
rival parties have been duly considered. Once again, the ultimate
picture that emerges from an analysis of the evidence on record is a
c case of affirmation by one side of an event having taken place and
denial of such event by the other side. There is nothing in the evidence
of the witnesses examined by either side which would make one story
wholly acceptable and the other inherently incredible. The charge
being one of the commission of corrupt practice and the standard of
proofrequired to establish such charge being proof beyond reasonable
E doubt, on the state of the evidence on record, the charge brought has
to fail. This issue, therefore, is decided against the election petitioner."

As regard the third meeting dated 7.5.2001, the High Court observed:

"I I. While the witnesses examined on behalf of the election petitioner
F are contended to be partisan and, therefore, unworthy of credit, the
evidence tendered by the said witnesses have also been challenged as
unnatural. P.W. 8 is the General Secretary of the District Congress
and P.W.7 is admittedly his constant companion. Both the witnesses
did not report to anybody about the meeting held at Bihpuria Bazar
and incriminating speeches made therein. Their evidence, therefore,
G is unworthy of credit and no reliance ought to be placed on the same,
it is contended on behalf of the returned candidate.

In so far as the witnesses examined on behalf of the returned
candidate are concerned, the learned counsel for the election petitioner
contends that the said witnesses not being named in the list of witnesses
H
BORGARAM DEUR! v. PREMODHAR BORA (SINHA, J.] 109

filed by the returned candidate and that too, belatedly i.e., on A
25.10.200 I, after closure of evidence of the election petitioner, no
reliance should be placed on the testimony of P.W. 9 and P.W. 10.
The said witnesses have come to depose in court on their own which
makes them highly interested, it is argued. That apart, the reasons
l cited by the returned candidate, in his application for leave to examine B
P.W. 9 and P.W. IO i.e. their names could not be mentioned in the
list of witnesses filed earlier due to inadvertence is incorrect inasmuch
as the two witnesses have deposed that they had informed the returned
candidate of their knowledge as to what had transpired in the meeting
held at Bihpuria Bazar only about a week prior to the date of their
deposition. If the evidence of P.W. 9 are discarded, the evidence of C
the election petitioner with regard to the meeting held at Bihpuria
Bazar and speeches delivered therein stand unrebutted, contends the
learned counsel for the election petitioner."

Mr. S.B. SanyaL the learned senior counsel appearing on behalf of the
appellant would submit that the High Court committed a manifest error in D
arriving at the aforementioned conclusions insofar as it applied wrong legal
tests as regard appreciation of evidence. The learned counsel wou Id contend
that the High Court even did not refer to the news item dated 19.4.2001
published in the newspaper "Azir Assam" which would prove the contents of
the speecl1 delivered by the President of the Coordination Parishad wherein E
the speakers asked the voters not to caste their votes in favour of the appellant
and Shri Kesoram Boro from wherever and from which party they contest.
Such and appeal, Mr. Sanyal would contend, was evidently made to spread
hatred against members of a Scheduled Tribe which amounts to corrupt
practice. Relying on the decisions of this Cou1t in Birbal Singh v. Kedar
Nath, [1976] 4 sec 691, Mr. Sanyal would argue that the interestedness of F
a witness cannot itself be a ground to disbelieve him as certain witnesses may
also be interested in speaking the truth.

The allegations of corrupt practices. must conform to the provisions
c·ontained in Sections 123(3) and J23(3)(A) of the Act. It is not in dispute
that Section 83 of the Representation of People Act is mandatory in nature. G
It is imperative that the election petitioner must disclose the source of his
information in the election petition fully.

The allegations of corrupt practices are viewed seriously. They are
considered to be quasi-criminal in nature. The standard of proof required for H
proving corrupt practice for all intent and purport is equated with the standard
I JO SUPREME COURT REPORTS [2004] I S.C.R.

A expected in a criminal trial. However, the difference between an election
petition and a criminal trial is, whereas an accused has the liberty to keep
silence, during the trial of an election petition the returned candidate has to
place before the Court his version and to satisfy the Court that he had not
committed the corrupt practice as alleged in the petition. The burden of the
B election petitioner, however, can be said to have been discharged only if and
when he leads cogent and reliable evidence to prove the charges levelled
against the returned candidate. For the said purpose, the charges must be
proved beyond reasonable doubt and not merely by preponderance of y
probabilities as in civil action. (See Gajanan Krishnaji Bapat and Anr. v.
Dallaji Raghobaji Meghe and Ors., AIR (1995) SC 2284, Surinder Singh v.
C Hardial Singh and Ors., [1985] I SCR 1059, R.P. Moidutty v. P. T. Kunju
Mohammad and Anr., [2001] I SCC 481 and Mercykut1y Amma v. Kadavoor
Sivadasan and Anr., (2003) AIR SCW 6306.

The witnesses examined by the appellant in support of his allegation in
relation to the first meeting was found to be unworthy of any trust by the
D High Court. The witnesses though admitted that they were the residents of
the locality and had been present in the meeting, could not recognize any of
the persons present therein. Admittedly, no independent witness from the
village had be1m examined by the election petitioner. The High Court, however,
although found fault with the nature of the evidence adduced by the first
E respondent herein but in making the observations as in paragraph 8 of the
judgment and, as noticed hereinbefore, the High Court must be held to have
meant that the appellant has not. been able to discharge heavy burden.

Spreading of hatred on communal basis is an offence. The appellant
herein did not lodge any First Information Report. No contemporaneous
F documentary evidence has been brought on record to show that the first
respondent had spread hatred towards member of another community or caste.
The contents of the news item whereupon Mr. Sanyal relied having not been
proved by examining the reporter, the same could not have been exhibited
legally on the statement of the witness that the report had been published in
the newspaper. It was, therefore, inadmissible in evidence.
G
Even otherwise the manner in which the alleged corrupt practice has
taken place does not inspire confidence. Normally a candidate would not
commit an offence in presence of another candi~ate. It is also wholly unlikely I.-
that such statements would be made openly. Even if it had been done, it is
H expected that independent witnesses wou Id come forward to testify the veracity
BORGARAM DEUR! v. PREMODHAR BORA [SINHA . .I.] I 11
thereof. A
In Quamarul ls/am v. S.K. Kanta and Ors., (1994] Supp. 3 SCC 5, this
Court held:

"48. Newspaper reports by themselves are not evidence of the contents
thereof. Those reports are only hearsay evidence. These have to be B
proved and the manner of proving a newspaper report is well settled."

So far as the allegations as regard the meeting held on 1.5.200 I is
concerned, the High Court, for valid and cogent reasons, did not accept the
testimonies of the witnesses examined on behalf of the appellant. P.W. 4 Shri
Kushal Baruah in cross-examination could name only P.W. 5 and P.W. 6 to C
be present in the meeting although he is a resident of the same village. P.W.
5 and P. W. 6 admittedly belong to another village. He also admitted that only
the first respondent spoke in the meeting. The evidence of P.W. 5 was not
believed on the ground that he was a chance witness. He furthermore
contradicted P.W. 4 by saying that even the two agents of the first respondent D
delivered speech. He further admitted that he is related to the election
petitioner. The High Court noticed that one of the listed witness Shri Raidangia
Namghar had not been examined and the witnesses examined on behalf of
the election petitioner only named each other as the person present in the
meeting and nobody else.
E
So far as the third meeting dated 7.5.2001 is concerned, the entire case
of the appellant rested on two witnesses viz. P.W. 8 and P.W. 7. P.W. 8
admittedly was the General Secretary of the District Congress and P.W. 7
admittedly was his constant companion. The names of the other witnesses
examined by the appellant did not figure in the list of the witnesses fil~d F
earlier by the appellant.

In Birbal Singh (supra) this Court while holding that the court should
be on its guard while evaluating the testimony of interested witnesses observed
that they must be subjected to a closer scrutin>'.
G
This Court in no uncertain terms stated that in a given case the Court
would be justified in rejecting that evidence unless it is corroborated from an
independent source. Applying the said test also, the evidence of P.W. 7 and
P. W. 8 cannot be believed.

The High Court itself while disbelieving the said witnesses noticed that H
112 SUPREME COURT REPORTS (2004] I S.C.R.

A they did not report to anybody about the meeting held at Bihpuria Bazar and •
incriminating speeches made therein. The findings of the High Court, therefore,
are in consonance with the legal tests laid down by this Court in Birbal Singh
(supra).

On analyzing the materials on record, it is, therefore, evident that the
B appellant had not been able to prove the charges of corrupt practice against
the first respondent herein by adducing clear-cut evidence which can be said
to be wholly credible and reliable. The charges of corrupt practice were
needed to be proved beyond doubt which the first respondent failed to do.

C It is beyond any cavil that the allegations of corrupt practice must be
pleaded strictly in terms of Section 83 of the Representation of People Act
and proved beyond all reasonable doubt.

For the aforementioned reasons, we are of the opinion that the judgment
of the High Court cannot be faulted.
D
This appeal, therefore, being devoid of any merit is dismissed. No
costs.

N.J. Appeal dismissed.