Holding

The election of the returned candidate was not void because the petitioner failed to prove beyond reasonable doubt that the change of venue materially affected the result.

Summary

In the 2006 Assam Legislative Assembly election, polling station No.124 was initially set up at a non‑notified school and later shifted to the notified venue. The defeated candidate, Kalyan Kumar Gogoi, alleged that this change caused chaos, preventing 200‑300 voters from casting their votes and materially affected the result, seeking a declaration of void election and a re‑poll. The High Court dismissed the petition, holding that the breach of Sections 25, 56 of the Representation of the People Act and Rule 15 of the Conduct of Election Rules was committed by election officials, not the candidate, and that the petitioner failed to prove material effect. On appeal, the Supreme Court affirmed the High Court, emphasizing that under Section 100(1)(d)(iv) the petitioner must prove beyond reasonable doubt that the irregularity altered the outcome, and that hearsay evidence cannot be relied upon for this purpose. Consequently, the election of the returned candidate was upheld.

Issues considered

The change of venue of the polling station materially affected the result of the election under Section 100(1)(d)(iv) of the Representation of the People Act, 1951.
The standard of proof required to show material effect – whether beyond reasonable doubt or a lesser test.
Whether hearsay evidence is admissible for determining material effect in an election petition.
The allocation of the burden of proof in election petitions challenging a returned candidate.
Whether non‑compliance by election officials, absent fault of the candidate, can render the election void.

Legislation cited

Conduct of Election Rules, 1961s. Rule 15
Indian Evidence Act, 1872s. 60, s. 64
Representation of the People Act, 1951s. 100(1)(d)(iv), s. 25, s. 56, s. 57, s. 58, s. 80, s. 80A, s. 81, s. 87(2)

Subjects

election petitionchange of venuepolling stationmaterially affected resultburden of proofhearsay evidenceRepresentation of the People ActConduct of Election RulesIndian Evidence Actvoid election

Judgment

(2011) 1 S.C.R. 796

A KALYAN KUMAR GOGOi
v. ~'
ASHUTOSH AGNIHOTRI AND ANOTHER
(Civil Appeal No. 4820 of 2007)
JANUARY 18, 2011
B
[J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.]
,........
Representation of the People Act, 1951:

s. 100(i)(d)(iv)- Election petition -A/legation that change
c of venue of the polling station was illegal and deprived many
voters from exercising their right due to chaos - Declaration
sought to the effect that election of the returned candidate from
constituency was void and order directing re-polling in the
polling station notified be made - Petition dismissed by hligh
D Court - On appeal held: Defeated candidate totally failed to ~·
I
-
prove that the eleption of the returned candidate was materially
affected because of non-compliance with the provisions of the
1951 Act or Rules or orders made under it - Evidence
adduced by the defeated candidate does not establish
E beyond reasonable doubt that about 200 to 300 voters had
~gone away, without casting their votes when it was found that
no arrangements were made for casting votes at the notified .......
place - Non-compliance with the provisions of the 1951 Act
and Rules of 1961 was by the officers, in charge of the .conduct
F of the election and not by the elected candidates - Thus, order
passed by the High Court upheld - Conduct of Election Rules,
1961 - r. 15.

s. 100 (i)(d)(iv) - Grounds for declaring election to be
G void - Result of election of returned candidate whether ~

materially affected because of change of venue of the polling
station - Standard of proof to be adopted - Held: It would be
proof beyond reasonable doubt or beyond pale of doubt and
not test of proof - Election of a returned candidate should not
H 796
I
KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 797
AND ANR.
normally be set aside unless there are cogent and convincing A
reasons - Burden of proving that the votes not cast would
~
have been distributed in such a. manner between the
contesting candidates as would have brought about the defeat
of the returned candidate lies upon one who objects to the
validity of the election - Court has to see whether the burden B
has been successfully discharged by the election petitioner.

Election Laws - Trial of election petition - Rule of
~ appreciation of hearsay evidence - Application of - To
determine whether the result of the election of the returned
candidate was materially affected due to change of venue of
c
the polling station - Held: Rule of appreciation of hearsay
evidence would apply - Evidence - Hearsay evidence.

Evidence:
D
Hearsay evidence - Meaning of. ,'
-· '"T )'

Hearsay evidence - Not received as relevant evidence
- Reasons for - Explained.

The State Legislature Assembly Elections were held. E
The respondent No. 2 was declared elected. The
appellant-defeated candidate lodged a complaint before
~ _,,_ the Returning Officer demanding re-poll at one of the
polling station on the ground of shifting of the polling at
a non-notified area and its subsequent shifting to the F
notified place had materially affected the result of the
election of respondent No. 2. The complaint was not
entertained. The appellant then filed an election petition
ulss. 80, 80(A) and 81 of the Representation of the People
Act, 1951 seeking declaration that the election of G
_,_ respondent No. 2, the returned candidate from the said
constituency was void and to order directing repolling in
Polling Station notified be made. The Single Judge of the
High Court dismissed the election petition. Therefore, the
appellant filed the instant appeal.
H
798 SUPREME COURT REPORTS [2011] 1 S.C.R.

A Dismissing the appeal, the Court
HELD: 1.The heads of substantive rights in Section
100(1) of the Representation of the People Act, 1951 are
laid down in two parts: the first dealing with situations
8 in which the election must be declared void on proof of
certain facts and the second in which the election can
only be declared void if the result of the election, insofar
as it concerns the returned candidate, can be held to be
materially affected on proof of some other facts. The
C appellant-defeated candidate has totally failed to prove
that the election of the respondent No. 2, who is returned
candidate, was materially affected because of non-
compliance with the provisions of the Act of 1951, or
Rules or Orders made under it. On the facts and in the
circumstances of the case, the Single Judge of the High
D Court did not commit any error in dismissing the petition
filed by the appellant challenging the election of the
respondent No. 2. [Paras 25 and 26] [828-C-G]
2.1 Having read the evidence on record, the decision
E of the Single Judge of the High Court that by the change
of venue of casting votes, breach of the provisions of
Sections 25 and 56 of the Representation of the People
Act, 1951 read with Rule 15 of the Conduct of Election
Rules, 1961 was committed by the officials in charge of
. F. the conduct of the election at the constituency and not
by the elected candidate, is accepted. It is true that if
Section 100 (1) (d) (iv) is read in isolation, then one may
be tempted to come to the conclusion that any non-
compliance·with the provisions of the Constitution or of
G the Act of 1951 or any Rules of 1961 Rules or orders
made under the Act would render the election of the
returned candidate void, but clause (d) begins with a rider ·
that the result of the election, insofar as it concerns a
returned candidate, must have been materially affected.
This means that if it is not proved to the satisfaction of
H
KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 799
AND ANR.
800 SUPREME COURT REPORTS [2011] 1 S.C.R.

A occurred and proper poll had taken place. at the notified
polling station. (Para 16] (820-C-D]

Vashisht Narain Sharma vs. Dev Chandra (1955) 1 SCR
509; Paokai Haokip vs. Rishang and Ors. AIR 1969 SC 663
- relied on.
8
3.1 The word 'evidence' is used in common parlance
in three different senses: (a) as equivalent to relevant (b)
as equivalent to proof and (c) as equivalent to the
material, on the basis of which courts come to a
C conclusion about the existence or non-existence of
disputed facts. Though, in the definition of the word
'evidence' given in Section 3 of the Evidence Act one
finds only oral and documentary evidence, this word is
also used in phrases such as: best evidence,
D circumstantial evidence, corroborative evidence,
derivative evidence, direct evidence, documentary I
evidence, hearsay evidence, indirect evidence, oral
evidence, original evidence, presumptive evidence,
primary evidence, real evidence, secondary evidence,
E substantive evidence, testimonial evidence, etc. The idea
of best evidence is implicit in the Evidence Act. Evidence
under the Act, consists of statements made by a witness
or contained in a document. If it is a case of oral evidence,
the Act requires that only that person who has actually
F perceived something by that sense, by which it is ·
capable of perception, should make the statement about
it and no one else. If it is documentary evidence, the
Evidence Act requires that ordinarily the original should
be produced, because a copy may contain omissions or
mistakes of a deliberate or accidental nature. These
G principles are expressed in Sections 60 and 64 of the
Evidence Act (Para 18] (820-F-H] [821-A-C]

3.2 The term 'hearsay' is used with reference to what
is done or written as well as to what is spoken and in its
H

·-
I
,.. KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 801
AND ANR.
legal sense, it denotes that kind of evidence which does A
.-'( not derive its value solely from the credit given to the
witness himself, but which rests also; in part, on the
veracity and competence of some other person. The
word 'hearsay' is used in various senses. Sometimes it
means whatever a person is heard to say. Sometimes it 8
means whatever a person declares on information given
by someone else and sometimes it is treated as nearly
synonymous with irrelevant. The sayings and doings. of
4 third person are, as a rule, irrelevant, so that no proof of
them can be admitted. Every act done or spoken which c
is relevant on any ground must be proved by someone
who saw it with his own eyes and heard it with .his own
ears. [Para 19] [821-D-F]
3.3 It cannot be said that the rule of appreciation of
hearsay evidence would not apply to determination of D
~-"y" the question whether change of venue of polling station
has materially affected the result of the election of the
returned candidate, since this question has to be
' determined in a properly constituted election petition to
be tried bY, a High Court in view of the provisions E
contained i~ Part VI of the Representation of the People
Act, 1951 and Section 87(2) of the Act of 1951, which
... _,,., specifically provides that the provisions of the- Evidence
Act, 1872, shall subject to the provisions of the Act, be
deemed to apply in all respects to the trial of an election F
· petition. No provision of the Act of 1951 could be pointed
out, which excludes the application of rule of appreciation
of hearsay evidence to the determination of the said
question. [Para 20] [821-G-H; 822~A-B]
G
~
3.4 Hearsay evidence is excluded on the ground that
it is always desirable, in tile interest of justice, to get the
person, whose statement is relied upon, into court for his
examination in the regular way, in order that many
possible source~ of inaccuracy and untrustworthiness
H
802 SUPREME COURT REPORTS [2011] 1 S.C.R.

A can be brought to light and exposed, if they exist, by the
test of cross-examination. The phrase 'hearsay evidence'
is not used in the Evidence Act because it is inaccurate
and vague. It is a fundamental rule of evidence under the
Indian Law that hearsay evidence is inadmissible. A
B statement, oral or written, made otherwise than a witness
in giving evidence and a statement contained or recorded
in any book, document or record whatever, proof of
which is not admitted on other grounds, are deemed to
be irrelevant for the purpose of proving the truth of the
c matter stated. An assertion other than one made by a
person while giving oral evidence in the proceedings is
inadmissible as evidence of any fact asserted. This
species of evidence cannot be tested by cross-
examination and that, in many cases, it supposes some
better testimony which ought to be offered in a particular
0
case, are not the sole grounds for its exclusion. Its-
tendency to protract legal investigations to an
embarrassing and dangerous length, its intrinsic
weakness, its incompetency to· satisfy the mind of a judge
about the existence of a fact, and the fraud which may
E be practiced with impunity, under its cover, combine to
support the rule that hearsay evidence is inadmissible.
[Para 21] [822-C-H]

3.5 The reasons why hearsay evidence is not
F received as relevant evidence are: (a) the person giving
such evidence does not feel any responsibility. The-law
requires all evidence to be given under personal
responsibility, i.e., every witness must give his testimony,
under such circumstance, as expose him to all the
G penalties of falsehood, (b) truth is dHuted and diminished
with each repetition and (c) if permitted, gives ample
scope for_ playing fraud by saying "someone told me
that.•..•..•..•". It would be attaching importance to false
rumour flying from one foul lip to another. Thus,
H
- KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI
AND ANR.
statement of witnesses based on information received
from others is inadmissible. [Para 22] [823-A-C]
803

A
,-'(
4.1 The analysis of the evidence tendered by the
witnesses of the appellant makes it very clear that none
of them had seen big number of voters, i.e., 200/300
8
returning back without casting their votes, because the
polling station was initially arranged at a non-notified
place and was subsequently shifted to the notified place.
...\.._ A close analysis of the evidence tendered by the
witnesses of the appellant indicates that they have
exaggerated the facts. It means that the witnesses are not c
only unreliable but have tendency to state untrue facts.
[Para 24] [823-G-H]
4.2 One of the grounds mentioned by the Single
_Judge of the High Court for disbelieving the witnesses D
~ y \ of. the appellant is that they were illiterate, but their
'affidavits were got prepared in English language through
'•~ I

lawyer which were treated as their examination-in-chief.
There is no denial by the appellant that the witnesses
were illiterate and that their affidavits were prepared by E
the lawyer and were presented before the court. The
persons, who had put their thumb marks on the affidavits,

- _,.... which were in English language, could have been hardly
made aware about the English contents of the affidavits
sworn by them. [Para 24] [825-E-Gl F
4.3 The election in question took place on 3.4.2006
and the result was declared on 11.5.2006. However, for
the first time the appellant filed a complaint regarding
polling having taken place at a non-notified place only on
12.5.2006. Further, in the belatedly filed complaint, it was G
...._
..... never claimed by the appellant that casting of the votes
l had taken place initially at a non-notified place and,
therefore, about 200 to 300 voters, who had gone to the
notified place to cast their votes, had returned back
without casting their votes, when they had learnt that the H
SUPREME COURT RE~:PORTS (2011] 1 S.C.R.
-
A polling station was not set up at the notified place,
• Similarly, in the election petition the said fact is nowhere
mentiof!_ed. [Para 24] (826-8-D]

4.4 The evidence adduced by the appellant does not
establish beyond reasonable doubt that about 200 to 300
8
voters had gone away, without casting their votes when
it was found by them that no arrangements were made
for casting votes at the notified place. The finding
recorded by the Single Judge of the High Court on this
C poinfis eminently just and is upheld. The Single Judge·
of the High Court had advantage of observing
demeanour of the witnesses. On re-appreciation of the
said evidence, it has not inspired confidence of this Court
also. Under the circumstances, it is hazardous to rely
upon the evidence adduced by the appellant for coming
D to the conclusion that because of specification of wrong
place as polling station, the result of respondent No. 2, r -
was materially affected. It is relevant to notice that out of
1050 voters, whose names were registered at the notified
polling station, 557 voters had cast their votes. -It means
E that the voting percentage was 53.8%. The assertion
made by the witnesses of the appellant that roughly about
200 to 300 voters could not cast their votes because of
shifting of official polling station, cannot be believed for
the other weighty reason that the general pattern of 1

F polling not only in this constituency but in the whole of
India is that all the voters do not always go to the polls.
Voting in India is not compulsory and, therefore, no
minimum percentage of votes has been prescribed either
for treating an election in a constituency as valid or for
G securing the return of a candidate at the election. The
voters may not turn up in large number to cast their votes
'
for variety of reasons such as an agitation going on in
the State concerned on national and/or regional issues
f
or because of boycott call given by some of the
H recognized State parties, in the wake of certain political
- KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI
AND ANR.
805

developments in the State or because of disruptive A"
. -{ activities of some extremist elements, etc. It is common
knowledge that voting and abstention from voting as also
the pattern of voting, depend upon complex and variety
of factors, which may defy reasoning and logic.
Depending on a particular combination of contesting B
candidates and the political party fielding them, the same
_...._
set of voters may cast their votes in a particular way and
may respond differently on a change in such combination.
Voters, it -is said, have a short lived memory and not an
inflexible allegiance to political parties and candidates. c
Election manifestos of political parties and candidates in
a given election, recent happenings, incidents and
speeches delivered before the time of voting may
persuade the voters to change their mind and decision
to vote for a particular party or candidate, giving up their D
, "( previous commitment or belief. Therefore, 200 to 300
voters not casting their votes can hardly be attributed to
·change of venue of the polling station, though the
evidence on record does not indicate at all that about 200
to 300 voters had gone back without casting their votes.
E
Even if it assumed for sake of argument that about 200
to 300 voters had gone away without casting their votes
... -1' on learning that no polling station was set up at the
notified place, no evidence relating to the pattern of voting
as was disclosed in the various polling booths at .which
the voters had in fact gone, was adduced by the F
appellant. Therefore, it is very difficult to accept the ipse
dixit of the appellant and his witnesses that if 200 to 300
had not gone away without casting their votes due to
non-setting up of notified polling station, they would have
* voted in favour of the appellant. There is no warrant for G
drawing presumption that those, who had gone away
without casting votes, would have cast their votes in
favour of the appellant, if there had been no change of
..
H
806 SUPREME COURT REPORTS [2011] 1 S.C.R. -
A venue of voting. The matter cannot be considered on
possibility. There is no room for a reasonable judicial
guess. [Para 24] [826-E-H; 827-A-H; 828-A-C]

Paokai Haokip vs. Rishang AIR 1969 SC 663 - relied
on.p
8
Case Law Reference:
(1955) 1 SCR 509 Relied on Para 14
AIR 1969 SC 663 Relied on Paras 15, 24
c
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
4820 of 2007.

From the Judgment & Order dated 28.08.2007 of the High
Court of Gauhati in Election Petition No. 4 of 2006.
D
Rajiv Dhavan, Anupam Chowdhury, Anupam Lala Das,
Raktim Gogoi for the Appellant.

Nagendra Rai, Amit Yadav, Smarhar, Sanjay Kumar Visen,
E Bijender Singh, Ambar Qamaruddin for the Respondent.

The Judgment of the Court was delivered by

J.M. PANCHAL, J. 1. This appeal, filed under Section
116A of the Representation of People Act, 1951 ("the Act" for
F short}, is directed against judgment dated August 28, 2007,
rendered by the learned Single Judge of the Gauhati High Court
in Election Petition No. 4 of 2006, by which the prayers made
by the appellant to declare the election of the respondent No.
2, who is returned candidate from Legislative Assembly
G Constituency of Dibrugarh, to be void and to order repoll in
Polling Station No. 124 Manik Dutta LP. School (Madhya) of
116 Dibrugarh Legislative Assembly Constituency, are rejected.

2. The facts emerging from the record of the case are as
under: -
H
- KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI
AND ANR. [J.M. PANCHAL, J.]
807

A notice was published inviting nominations from eligible A
candidates to contest the Assam State Legislative Assembly
Election for 116 Dibrugarh Constituency as required by Section
31 of the Act read with Rule 3 of the Conduct of Election Rules,
1961, notifying the schedule of the election, which was as under:
B
1. Issue of notification 10.3.2006

2. Last date for making nomination 17.3.2006

3. Scrutiny of nomination papers 18.3.2006 c
4. Last date for withdrawal of candidature 20.3.2006

5. Date of poll 03.4.2006

6. Counting of votes 11.5.2006 D
7. Date before which election process
Shall be completed 20.5.2006

The appellant filed his nomination papers _to contest the
Assam State Legislative Assembly Elections from 116 E
Dibrugarh Legislative Assembly Constituency as an approved
candidate of the Indian National Congress. Along with him, the
respondent No. 2 herein filed his nomination papers as the
candidate of Bhartiya Janata Party for the said constituency.
There were six other candidates also, who were in fray and had F
filed their nomination papers for contesting the said election.
Upon scrutiny of the nomination papers of the eight candidates,
papers of seven candidates including those of the appellant and
the respondent No. 2 were declared valid by. the Returning
Officer. The polling took place for the Constituency in question G
on April 3, 2006. It may be mentioned that in 116 Dibrugarh
Legislative Assembly Constituency, in. all there were 126
notified polling stations, names/particulars of which were
published under Section 25 of the Act. On the date of polling
one notified polling station, i.e., Polling Station No. 124 was not H
~.

808 SUPREME COURT REPORTS [2011) 1 S.C.R.

A set up in the notified sch9ol, namely, Manik Dutta LP. School
(Madhya) and instead, the polling was conducted in another
school, namely, Chiring Gaon Railway Colony LP. School,·
which was admittedly not a notified polling station. It is not in
dispute that the polling in the said non-notified polling station
B started at 7.00 A.M. The case of the appellant is that as the
polling in the non-notified polling station continued up to 12.30
P.M., there was confusion and chaos amongst the voters and
many of them went away without casting their votes. The
appellant .claims that his election agent lodged complaint
c before the Deputy Commissioner, Dibrugarh, who was also the
Returning Officer, for the constituency concerned and, therefore,
the polling station was shifted to the notified school and was
made functional later on. It is necessary to mention that out of
the t~tal 1050 voters whose names were registered at the
D polling station located at the school notified, 557 voters had
cast their votes, which constitute, according to the appellant, Y ~
53.8% of votes while the total polling percentage in the entire
constituency was 67.23%. The counting of the votes for the
election .of the said constituency took place on May 12, 2006
and results were declared on the same day. The respondent
E No. 2 was declared elected having polled 28,424 votes as the
appellant could secure 28,249 votes out of total valid votes of
79, 736. Thus the margin of the votes between the appellant and
the respondent No. 2 was of 175 votes.

F On the same day, the appellant lodged a complaint before.
the Returning Officer demanding repoll at the polling station
concerned inter alia making grievance that the shifting of the
polling station from the notified area to Chiring Gaon Railway
Colony LP. School was illegal and deprived many voters from
G exercising their right of franchise due to utter confusion and/or );-
chaos. The appellant also made grievance about the manner
in which the Electronic Voting Machines were shifted from
Chiring Gaon Railway Colony L,P. School to Manik Dl.!tta LP.
School (Madhya). In response to this complaint the Deputy
H Commissioner and District Election Officer, Dibrugarh,
KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 809
AND ANR. [J.M. PANCHAL, J.]
addressed a letter dated May 20, 2006 to the appellant A
,.-4 mentioning that the problem about~he functioning of Polling
Station notified was solved imme iately on the day of the
polling under the guidance of the Election Observer in the
presence of the Zonal Officer, Sector Officer of the Constituency
Magistrate and Polling Agents arid as the complaint lodged by B
the appellant was found to be an after thought, the same was
not entertained. '
~
3. Thereupon, the appellant filed Election Petition No. 4 of
2006 on June 21, 2006 before the Gauhati High Court under
Sections 80, 80(A) and 81 of the Act seeking a declaration that
c
the election of the respondent No. 2 from constituency
concerned was void and an order directing repolling in Polling
Station notified be made.

... -y 4. The respondent No. 2 filed his written statement D
. mentioning amongst other facts that the shifting of the polling
station from a notified place to a non-notified place and
.thereafter rectifying the defect did not vitiate the election nor
had materially affected his result of the election. The respondent
· No. 1, i.e., Mr. Ashutosh Agnihotri, who was then District E
Election Officer, Dibrugarh ahd Returning Officer, filed his reply
mentioning, inter alia, that though in the morning polling was
~ held at a non-notified polling station, namely, Chiring Gaon
Railway Colony LP. School instead of Manik Dutta LP. School
(Madhya), voters were not deprived of their right of casting vote. F
The respondent No. 1 further stated that the appellant had never
raised, prior to the declaration of the result, any objection or
made any complaint about initial voting having taken place at
the polling station which was not notified or about subsequent
shifting of the polling station to the notified place.
~ G
5. On the basis of pleadings of the parties, necessary
issues for determination were framed and evidence was led
by the parties. The appellant examined in all twelve witnesses
whereas the respondent No. 2 examined six witnesses.
H
810 SUPREME COURT REPORTS (2011] 1 S.C.R.

A 6. According to the learned Judge since the election:
petition was filed challenging the result of the returned candidate
on the ground of non-compliance of the provisions of the Act
and the Rules of 1961, the election petitioner, i.e., the appellant
was required to prove such non-complianc'e and also that such
B non:-eompliance had materially affected the result of the election
as proof of mere non-compliance of any of the provisions of
the Act or the Rules framed thereunder by itself without showing
that such non-compliance had materially affected the result of A-
the election of the returned candidate would not be sufficient
c to declare the election of the respondent No. 2 void under
Section 100(1)(d)(iv) of the Act. The learned Judge held that
the evidence adduced established that the distance between
the two schools was hardly about 100 meters. The learned
Judge also noticed that the evidence established that polling
in the Chiring Gaon Railway Colony LP. School had continued
0
only up to 9.30 A.M. and after shifting the polling station to the.
notified school at around 9.45 A.M., the polling was resumed/
had restarted at about 9.55 A.M. On consideration of the
evidence, the learned Judge concluded that the Polling Station
E No. 124 was not set up in the notified place initially but was
subsequently set up at the notified place and thus there was
breach of provisions of Sections 25 and 56 of the Act as well
as Rule 15 of the Rules of 1961. The learned Judge examined
the contention of the appellant that the Presiding Officer having
found that the Polling Station No. 124 was set up in a non~
F notified place was duty bound to adjourn the polling which was
takii:ig place at the said polling station in exercise of powers
conferred by Section 57(1) of the Act and the Presiding Officer
having not done so, the election of the respondent No. 2 was
liable to be set aside. However, the learned Judge found that
G the appellant had neither pleaded violation of any of the
provisions of Section 57 of the Act nor led evidence to prove
that the setting up of the Polling Station in a non-notified place
and its subsequent shifting to the notified place amounted to
'sufficient cause' within the meaning of Section 57 of the Act
H and, therefore, concluded that it was not necessary to decide
;
KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 811
AND ANR. [J.M. PANCHAL, J.]
the said contention. On examination, the contention of the A
....; appellant, that the error and/or irregularity, namely, setting up
I of the polling station at the wrong place and subsequent shifting
of the same at the notified place, committed during the conduct
/ of the election, should have been reported by the Returning
1

Officer forthwith to the Election Commission and failure to so B
report, has vitiated the election of the respondent No. 2, was
found to be without any substance because, according to the
-+-- learned Judge, there was no pleading relating to breach of
Section 58(1 )(b) or commission of irregularity and/or error likely
to vitiate the poll and it was further held that question of taking c
steps under Section 58 of the Act would arise only in a case
where destruction of ballot boxes, E.V.M. is pleaded and
proved and not otherwise. The case of the appellant that shifting
was made to the notified place without sealing the EVM and
other election materials also, was not accepted by the learned
,. ''( Judge because except the appellant, no other person present D
at that point of time at Chiring Gaon Railway Colony LP.
School had stated anything about the non-sealing of the EVM
and other election materials.

7. Having held that there was non-compliance of the E
provisions of Sections 25 and 56 of the Act and Rule 15 of
1961 Rules, the learned Judge further examined the question
'!''
whether such non-compliance had materially affected the result
of the election. After noticing that the question as to whether
the infraction of law has materially affected the result of the F
election or not, is purely a question of fact, it was held that no
presumption or any inference of fact can be raised that the result
of the election of the returned candidate must have been
materially affected and the fact that such infraction had
-"'* materially affected the result of the election, must be proved by G
adducing cogent and reliable evidence. The learned Judge
thereafter discussed the evidence on record and concluded that
none ofthe witnesses had stated that a large number of voters
had left the notified place without casting their votes because . \ \
of non..:availability of the polling facility at the notified place. In H
812 SUPREME COURT REPORTS [2011) 1 S.C.R.

A view of the above mentioned conclusions, the learned Judge
held that initially voting, which had taken place at the non-
notified place, had not materially affected the election result of
the respondent No. 2 and dismissed the election petition by the
impugned judgment, giving rise to the instant appeal.
B
8. This Court has heard the learned counsel for the parties
at length and in great detail. This Court has also considered
the documents forming part of the present appeal.

9. The first grievance made by Dr. Rajiv Dhavan, learned
C senior counsel for the appellant, was that a wrong test of burden
of proof, namely, absolute test was adopted by the learned
Judge of the High Court, which could not have been adopted
in view of the provisions of Section 100(1 )(d)(iv) of the Act and
the test of either broad probabilities or the test of sufficiency
D of evidence should have been applied while considering the
question whether polling at the non-notified place and curtailing
of time of voting had materially affected the result of the '
election. According to the learned counsel for the appellant, the
hearsay rule on appreciation of evidence cannot be made
E applicable while determining the question whether polling at the
non-notified place and curtailing of time of voting· had materially
affected the result of the election, so far as a candidate
contesting election and his agents are concerned and, therefore,
reliable testimony of the appellant and that of his agents should
F have been accepted by the· learned Judge. According to the
learned counsel for the appellant, one of the reasons given by
the High Court for disbelieving some of the witnesses was that
though they were illiterate, they had filed affidavits in English
language through their lawyer and on being asked about the
contents of the affidavit, they had stated that they were not in
G position to explain the same, forgetting the material fact that
they had acted through their lawyer and the lawyer on the basis
of instructions given by them had prepared their affidavits. The
learned counsel argued that the reasons assigned by the
learned Judge in the impugned judgment for dismissing the
H
. KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 813
AND ANR. [J.M. PANCHAL, J.]
Election Petition filed by the appellant are not only erroneous A
,-/ but contrary to the evidence on record and, therefore, this Court
should accept the appeal.·
10. Mr. Nagendra Rai, learned counsel for the respondent
No. 2, argued that burden of proof was rightly placed on the B
appellant in view of several reported decisions of this Court,
which firmly lay down the principle that the ground pleaded for
setting aside an election, .must be proved beyond reasonable
~ doubt and, therefore, no error can be said to have been
committed by the learned Judge in applying the principle.of
burden of proof to the facts of the case. According to the learned
c
counsel for the respondent No. 2, hearsay evidence remains
hearsay and the said rule has !O be applied to all matters
including the determination of the question whether voting at the
non-notified place and curtailing of time of voting had materially
affected the rP-sult of the election of the respondent No. 2. It was, D
~ '"'f'
therefore, pleaded that it is not correct to argue that hearsay
rule cannot be made appliGable while determining the validity
of election of the returned candidate under Section 100(1 )(d)(iv)
of the Act. What was maintained before this Court by the
learned counsel for the respondent No. 2 was that on behalf of E
the illiterate people, affidavits were prepared by lawyer without
making the illiterate people aware about the contents of the
y affidavits and, therefore, the High Court was justified in brushing
aside the evidence of those witnesses while considering the
question whether polling at a non-notified place had, in fact, F

- -affected the result of election materially. The learned counsel
submitted that cogent and convincing reasons have been given
by the learned Judge in the impugned judgment for dismissing
the election petition filed by the appellant and, therefore, this
Court should not interfere with the same in the instant appeal, G
-* more particularly, when the period left at the disposal of the
respondent No. 2, so far as his term as MLA is concerned, is
less than a year.

11 : The first question to be considered is whether there
.1-1,
I
814 SUPREME COURT REPORTS [2011] 1 S.C.R.

A had been or not a breach of the Act and the Rules in the
conduct of the election at this constituency. It is hardly necessary
for this Court to go over the evidence with a view to ascertaining
whether there was or was not a breach of the Act and the Rules
in the conduct of the election concerned. Having read the
B evidence on record, this Court is in entire agreement with the
decision cif the learned Single Judge that by the change of venue
of casting votes, breach of the provisions of Sections 25 and
56 of the Act read with Rule 15 of the Rules of 1961 was
committed by the officials who were in charge of the conduct ~
c of the election at this constituency.
12. This shows that the matter is governed by Section
100(1 )(d)(iv) of the Act. The question still remains whether the
condition precedent to the avoidance of the election of the
returned candidate which requires proof from the election
D petitioner, i.e., the appellant that the result of the election had
been materially affected insofar as the returned candidate, i.e., y •
the respondent No. 2, was concerned, has been established
in this case.

E 13. This Court finds that the learned Judge has recorded
a finding that cogent and reliable evidence should be adduced
by an election petitioner when election of the successful
candidate is challenged on the ground of breach of provisions
of Section 100(1)(d)(iv) of the Act. The contention advanced by
F Dr. Rajiv Dhavan, learned counsel for the appellant, that the-test
of either broad probabilities or the test of sufficiency of
evidence should be applied while deciding the question whether
the result of the elected candidate is materially affected or not
cannot be accepted. Section 100(1)(d)(iv) of the Act reads as
G under: -
"100. Grounds for declaring election to be void. - (1)
Subject to the provisions of sub-section (2) if the High
Court is of opinion -

H (a) to (c)
KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 815
AND ANR. [J.M. PANCHAL, J.]
(d) that the result of the election, in so far as it concerns A
, --../ a returned candidate, has been materially affected -

(i) to (iii)

(iv) by any non-compliance with the provisions of the
Constitution or of this Act or any rules or orders B
made under this Act, the High Court shall declare
the election of the returned candidate to be void."

14. It may be mentioned that here in this case non-
compliance with the provisions of the Representation of People c
Act, 1951 and the Election Rules of 1961 was by the officers,
who were in-charge of the conduct of the election and not by
the elected candidate. It is true that if clause (iv) is read in
isolation, then one may be tempted to come to the conclusion
that any non-compliance with the provisions of the Constitution D
or of the Act of 1951 or any Rules of 1961 Rules or orders made
under the Act would render the election of the returned
candidate void, but one cannot forget the important fact that
clause (d) begins with a rider, namely, that the result of the
election, insofar as it concerns a returned candidate, must have E
been materially affected. This means that if it is not proved to
the satisfaction of the Court that the result of the election insofar
as it concerns a returned candidate has been materially
affected, the election of the returned candidate would not be
liable to be declared void notwithstanding non-compliance with
the provisions of the Constitution or of the Act or of any Rules F
of 1961 Rules or orders made thereunder. It is well to remember
that this Court has laid down in several reported decisions that
the election of a returned candidate should not normally be set
aside unl.ess there are cogent and convincing reasons. The
success of a winning candidate at an election cannot be lightly G
interfered with. This is all the more so when the election of a
successful candidate is sought to be set aside for no fault of
his but of someone else. That is why the scheme of Section
100 of the Act, especially clause (d) of sub-Section (1) thereof
clearly prescribes that in spite of the availability of grounds H
.'t816 ·SUPREME COURT REPORTS (2011) 1 S.C.R.

A contemplated by sub-clauses (i} to (iv} of clause (d}, the election
of a returned candidate shafl not be voided unless and until it
is proved that the result of the election insofar as it concerns a
returned candidate is materially affected. The volume of opinion
expressed in judicial pronouncements, preponderates in favour
B of the view that the burden of proving that the votes not cast
would have been distributed in such a manner between the ,
contesting candidates as would have brought about the defeat
of the returned candidate lies upon one who objects to the
validity of the election. Therefore, the standard of proof to be
c adopted, while judging the question whether the result of the
election insofar as it concerns a returned candidate is materially
affected, would be proof beyond reasonable doubt or beyond
pale of doubt and not the test of proof as suggested by the
learned counsel for the appellant.

D This part of the case depends upon the ruling of this Court
in Vashisht Narain Sharma vs. Dev Chandra (1955) 1 SCR
509: AIR 1954 SC 513. In that case, there-was a difference of
111 votes between the returned candidate and the candidate
who had secured the next higher number of votes. One
E candidate by name of Dudh Nath Singh was found not
competent to stand election and the question arose whether the
votes wasted on Dudh Nath Singh, if they had been polled in
favour of remaining candidates, would have materially affected
the fate of the election. Certain principles were stated as to how·
F the probable effect upon the election of the successful
candidate, of votes which were wasted (in this case effect of
votes not cast} must be worked out. Two witnesses were
brought to depose that if Dudh Nath Singh haa not been a
candidate for whom no voting had to be done, the voters would
G have voted for the next successful candidate. Ghulam Hasan,
J. did not accept this kind of evidence. It is observed as follows:

"It is impossible to accept the ipse dixit of witnesses
coming for one side or the other to say that all or some of
H
l<ALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 817
AND ANR. [J.M. PANCHAL, J.]
the votes woyld have gone to one or the other on some A
supposed or imaginary ground. The question is one of fact
and has to be proved by positive evidence. If the petitioner
is unable to adduce evidence in a case such as the
present, the only inescapable conclusion to which the
Tribunal can come is that the b1,1rden is not discharged and B
the election must stand."
·'
While interpreting the words "the result of the election has been
materially affected" occurring in Section 100{1)(c), this Court
in the said case notified that these words have been the
. subject of much controversy before the Election Tribunals and C
the opinions expressed were not uniform or consistent. While
putting the controversy at rest, it was observed as under: -

"These words seem to us to indicate that the result should
not be judged by the mere increase or decrease in the total D
number of votes secured by the returned candidate but by
proof of the fact that the wasted votes would have been
distributed in such a manner between the contesting
candidates as would have brought about the defeat of the
returned candidate." E

In another para in the said decision it is observed: -

"It will not do merely to say that all or a majority of the
wasted votes might have gone to the next highest
candidate. The casting of votes at an election depends F
upon a variety of factors and it is not possible for any one
to predicate how many or which proportion of the votes will
go to one or the other of the candidates. While it must be
recognized that the petitioner in such a case is confronted
with a difficult situation, it is not possible to relieve him of G
1he duty imposed upon him by Section 100(1)(c) and hold
without evidence that the duty has been discharged."

15. Again, in Paokai Haokip vs. Rishang and others AIR
1969 SC. 663, the appellant who was the returned candidate H
818 SUPREME COURT REPORTS [2011) 1 S.C.R.

A from the Outer Manipur Parliamentary Constituency had ·
received 30,403 votes as against the next candidate, who had
received 28,862 votes. There was thus a majority of1541 votes.

The candidate, who had secured the second largest
8 number of votes, had filed election petition. The main ground
of attack, which had succeeded in the Judicial Commissioner's
Court, was that polling was disturbed because of numerous
. circumstances. These were that the polling centres were, in
some cases, changed from the original buildings to other
C buildings of which due notification was not issued earlier, with
the result that many of the voters who had gone to vote at the
old polling booths had found no arrangement for voting and
rather than going to the new polling station, had gone away
without casting their votes. The second ground was that owing
to firing by the Naga Hostiles, the voting at some of the polling
D stations was disturbed and almost no votes were cast. The third
ground was that the polling hours, at some stations, were
reduced with the· result that some of the voters, who-had gone
to the polling station, were unable to cast their votes.

E This Court considered the evidence led in the said case
and after concluding that by the change of venue and owing to
the firing, a number of voters had, probably failed to record their
votes, held that the matter was governed by Section _
100(1 ){d)(iv) of the Act. Having held so, the Court then
F proceeded to consider the question whether the condition
precedent to the avoidance of the election of the returned
candidate, which requires proof from the election petitioner that
the result of the election had been materially affected insofar
as the returned candidate was concerned, was established.
After extensively quoting from Vashisht Narain Sharma's case
G the Court noticed that witnesses were brought forward to state
that a number of voters did not vote because of change of
venue or because of firing and that they had decided to vote
en bloc for the election petitioner. This Court, on appreciation
of evidence led in that case held that the kind of evidence
H
KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 819.
. AND ANR. [J.M.".PANCHAL, J.]
adduced was merely an assertion on the part of the witn€!sses, A
who could not have spoken for 500 voters for the simple reason
that casting of votes at an election depended upon a variety of ·
factors and it was not possible for anyone to predict how many
or which proportion of votes would .have gone to one or the other
of the candidates. Therefore, the Court refused to accept the · B
statement even of a Headman that the whole village would have
voted in favour of one candidate to the exclusion of the others.
The Court in the said case examined the polling pattern in the
election and after applying the law of averages, concluded that
it was demonstrated at once that the election petitioner could c
not have expected to wipe off the large arrears under which he
was labouring and that he could not have, therefore; made a
successful bid for the seat, even with the assistance of the
voters who had not cast their votes. Noting that the learned
Judicial Commissioner had reached the conclusion by
0
committing the same error, which was .criticized in Vashisht . .
Narain Sharrna's case, this Court observed that the learned
Judicial Commissioner had taken the statement of the
witnesses at their worth and had held on the basis of those
statements that all the votes that had not been cast, would have
gone to the election petitioner. This Court ruled in the said case E
that for this approach adopted by the learned Judicial.
Commissioner there was no foundation in fact, it was a surmise
and it was anybody's guess as to how these people who had
not voted, would have actually voted. This Court, on
appreciation 9f evidence, held that the decision of the learned F
Judicial Commissioner that the election was in contravention
_of the Act and the Rules was correct, b1:1t that did not alter the
position with regard to Section 100(1)(d)(iv) of th¢ Act, which
required that election petitioner must go a little further and prove
that the result of the election had been materially affected. After G
holding that the election petitioner had failed to prove that the
result of the election insofar as it concerned the returned
candidate, had been materially affected, the appeal was
1

allowed and it was declared that the election of the returned
candidate would stand. What is important to notice is that whUe H
820 SUPREME COURT REPORTS [2011) 1 S.C.R. ...
A allowing the appeal of the returned candidate, the Court has
made following pertinent observations regarding burden of )... ,
proof which hold the field even today: -

It is no doubt true that the burden which is placed by law
is very strict; even if it is strict it is for the courts to apply it.
B
It is for the Legislature to consider whether it should be
altered. If there is another way of determining the burden,
the law should say it and not the courts. It is only in given
~
instances that, taking the law as it is, the courts can reach
the conclusion whether the burden of proof has been
c successfully discharged by the election petitioner or not."

16. In the light of the principles stated above what this
Court has to see is whether the burden has been successfully
· discharged by the election petitioner by demonstrating to the
D Court positively that the poll would have gone against the
returned candidate if the breach of the provisions of the Act and 'r'
the Rules had not occurred and proper poll had taken place at
the notified polling station.

17. Before considering the question posed above, it would
E
be relevant to deal with the argument raised by the learned
counsel for the appellant that hearsay rule of appreciation of.
evidence would not be applicable to the determination of the '7".
question whether the result of the election of the respondent No.
2 was materially affected because of change of venue of the
F polling station.

18. The word 'evidence' is used in common parlance in
three different senses : (a} as equivalent to relevant (b} as
equivalent to proof and (c} as equivalent to the material, on the
G basis of which courts come to a conclusion about the existence
or non-existence of disputed facts. Though, in the definition of
+
the word "evidence" given in Section 3 of the Evidence Act one
finds only oral and documentary evidence, this word is also
used in phrases such as : best evidence, circumstantial
H evidence, corroborative evidence, derivative evidence, direct
-
....
KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI
AND ANR. [J.M. PANCHAL, J.]
821

A
evidence, documentary evidence, hearsay evidence, indirect
.A evidence, oral evidence, original evidence, presumptive
evidence, primary evidence, real evidence, secondary
evidence, substantive evidence, testimonial evidence, etc. The
idea of best evidence is implicit in the Evidence Act. Evidence
under the Act, consists of statements made by a witness or B
contained in a document. If it is a case of oral evidence, the
Act requires that only that person who has actually perceived
-t. something by that sense, by which it is capable of perception,
should make the statement about it and no one else. If it is
documentary evidence, the Evidence Act requires that ordinarily c
the original should be produced, because a copy may contain
omissions or mistakes of a deliberate or accidental nature.
These principles are expressed in Sections 60 and 64 of the
Evidence Act.

• . ,.. 19. The term 'hearsay' is used with reference to what is D
done or written as well as to what is spoken and in its legal
sense, it denotes that kind of evidence which does not derive
its value solely from the credit given to the witness himself, but
which rests also, in part, on the veracity and competence of
some other person. The word 'hearsay! is used in various E
senses. Sometimes it means whatever a person is heard to
say. Sometimes it means whatever a person declares on
T' information given by someone else and sometimes it is treated
as nearly synonymous with irre1evant. The sayings and doings
of third person are, as a rule, irrelevant, so that no proof of them F
can be admitted. Every act done or spoken which is relevant
on any ground must be proved by someone who saw it with his
own eyes and heard it with his own ears.

20. The argument that the rule of appreciation of hearsay G
~ · evidence would not apply to determination of the question
whether change of venue of polling station has materially
affected ttie result of the election of the returned candidate,
cannot be accepted for the simple reason that, this question
has to be determined i.1 a properly constituted election petition
H
to be tried by a High Court in view of the provisions contained
822 SUPREME COURT REPORTS [2011) 1 S.C.R.

A in Part VI of the Representation of the People Act, 1951 and
Section 87(2) of the Act of 1951, which specifically provides
that the provisions of the Indian Evidence Act, 1872, shall
subject to the provisions of the Act, be deemed to apply in all
1espects to the trial of an election petition. The learned counsel
B for the appellant could not point out any provision of the Act of
1951, which excludes the application of rule of appreciation of
hearsay evidence to the determination of question posed for
consideration of this Court in the instant appeal.

21. Here comes the rule of appreciation of hearsay
C evidence. Hearsay evidence is excluded on the ground that it
is always desirable, in the interest of justice, to get the person,
whose statement is relied upon, into court for his examination
in the regular way, in order that many possible sources of
inaccuracy and untrustworthiness can be brought to light and
D exposed, if they exist, by the test of cross-examination. The
phrase "hearsay evidence" is not used in the Evidence Act
because it is inaccurate and vague. It is a fundamental rule of
evidence under the Indian Law that hearsay evidence is
inadmissible. A statement, oral or written, made otherwise than
E a witness in giving evidence and a statement contained or
recorded in any book, document or record whatever, proof of
which is not admitted on other grounds, are deemed to be
irrelevant for the purpose of proving the truth of the matter
stated. An assertion other than one made by a person while
F · giving oral evidence in the proceedings is inadmissible as
evidence of any fact asserted. That this species of evidence
cannot be tested by cross-examination and that, in many cases,
· it supposes some better testimony which ought to be offered
in a particular case, are not the sole grounds for its exclusion.
G Its tendency to protract legal investigations to an embarrassing
. and dangerous length, its intrinsic weakness, its incompetency
to satisfy th'e mind of a Judge about the existence of a fact, and
the fraud which may be practiced with impunity, Linder its cover,
combine to support the rule that hearsay evidence is
H inadmissible.
- KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI
AND ANR. [J.M. PANCHAL, J.]
823

22. The reasons why hearsay evidence is not received as A
relevant evidence are: (a) the person giving such evidence
does not feel any responsibility. The law requires all evidence
to be given under personal responsibility, i.e., every witness
must give his testimony, under such circumstance, as expose
him to all the penalties of falsehood. If the person giving hearsay· B
evidence is cornered, he has a line of escape by saying "I do
not know, but so and so told me", (b) truth is diluted and
diminished with each repetition and (c) if permitted, gives
ample scope for playing fraud by saying "someone told me
that.. ........ ~". It would be attaching importance to false rumour c
flying from one foul lip to another. Thus statement of Witnesses ,
based on information received from others is inadmissible.

23. In the light of the above stated principles of law, this
Court will have to decide the quE;!stion whether it is proved by
the appellant, beyond reasonable doubt that the result of the . D
election, insofar as the respondent No. 2 is coocerned, was
materially affected because of change of venue of the polling
station. The first attempt made by the appellant is to establish
that about 200 to 300 voters had gone away without casting
their votes when they found thatno arrangements were made E
for casting votes at the notified place.

24. The evidence in this case; which has been brought out
by the election petitioner, is the kind of evidence which has
been criticized by this Court in several reported decisions. The F
analysis of the evidence tendered by the witnesses of the
appellant makes it very clear that none of them had seen big
number of voters, i.e., 200/300 returning back without casting
their votes, because the polling station was initially arranged
at a non-notified place and was subsequently shifted to the G
notified place. In fact, a close analysis of the evidence tendered
.by the witnesses of the appellant indicates that they have
exaggerated the facts. For example, Dr. Kalyan Kumar Gogoi,
i.e., the appellant as PW-1, had stated in his evidence that the
distance between Manik Dutta LP. School (Madhya) and H
·•
824 SUPREME COURT REPORTS [2011] 1 S.C.R.

A Chiring Gaon Railway Colony LP. School was about one and
half kilometers whereas as a material fact, the distance found
was hardly 440 feet and the schools were visible from each
other. What· is relevant to notice is that his evidence further
discloses that he was informed by his workers, i.e., Durlav
B Kalita and Pushpanath Sharma that a large number of voters
could not cast their votes. He does not claim that he himself
had seen the voters returning because of specification of non-
notified place as place for voting. The worker Durlav Kalita has
not b.een examined by appellant and the second worker
c Pushpanath Sharma, who has been examined as PW3, has not
been found to be reliable by this Court, hence the assertion of
the appellant that he was told by his abovenamed two workers
that a large number of voters had gone away without casting.
their votes when they found that no arrangements for casting
votes at the notified place were made, will have to be regarded
0
as hearsay evidence and, therefore, inadmissible in evidence.
The evidence of Dugdha Chandra Gogoi PW-2 establishes that
he was the election agent of the appellant and according to him
he had il)formed the appellant that about 200 to 300 voters had
gone away when they had found that no arrangements were
E made for voting at the notified venue. However, he has in no
uncertain terms stated during his cross-examination that he had
set up booths at Manik Dutta LP. School {Madhya) Polling
Station as well as Chiring Gaon Railway Colony L.P. School. If
that was so, those who had come for voting at Manik Dutta L.P.
F School {Madhya) Polling Station between 7.00 A.M. to 9.45 -
A.M., could have been directed to go to Chiring Gaon Railway
Colony L.P. School Polling Station and vice versa after the
polling station was shifted from non-notified place to the notified
place. Therefore, his assertion that he had informed. the
G appellant that about 200 to.300 voters had gone away without
casting their votes when it was found by them that no voting
arrangements were made at the notified venue, does not .
.. Inspire confidence of this Court. Similarly, witness Pushpanath .
Sharma, examined by the appellant as PW-3, has stated that
H on reaching Manlk Dutta L.P. School {Madhya), he had learnt .
KA~YAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 825
AND ANR. [J.M. PANCHAL, J.]
that the polling station was not set up there and there was utter A
.~ confusion. The witness has thereafter stated that he had
enquired about non-setting up of polling station at the notified
place and learnt that, unable to locate the polling station set up
at a place which was not notified, many voters had left without
casting their votes. This is nothing else but hearsay evidence . B
and it would be hazardous to act upon· such an evidence for
the purpose of setting aside the election of an elected
...
_ candidate. Moreover, this Court finds that PW-6, i.e., Sri Pranjal
Borah, has stated that on the day of the poll, i.e., on April 3,
2006 at about 11.30 O'clock in the morning when he went to c
cast his vote at 124 Manik Dutta LP. School (Madhya) polling
station, i.e., the notified place, he found that the polling station
· was not set up there. This has turned out to be utter lie because
as per the finding recorded by the learned Single Judge on
·appreciation. of evidence with which this Court completely D
.. ..., agrees on re-appreciation of evidence, is tha.t by 9.45 A.M. the
notified Polling Station had started functioning fully and the
voters were found standing in queue to cast their votes. Similar
is the state of affairs so far as evidence of witness No. 8 Smt.
Subarna Borah and witness No. 9 Smt. Pratima Borah are
concerned. It means that the witnesses are not only unreliable E
but have tendency to state untrue facts. One of the grounds
mentioned by the learned Single Judge of the High Court for
'""!"
,disbelieving the witnesses of the appellant is that they were
· illiterate, but their affidavits were got prepared in English
language through lawyer which were treated as their F
examination-in-chief. There is no denial by the appellant that
the witnesses were illiterate and that their affidavits were
prepared by the lawyer and were presented before the Court. ·
The persons, who had put their thumb marks on the affidavits,
G ·.
't· which were in English language, could have been hardly made
··.aware about the English contents of the affidavits sworn by
them. The evidence tendered by the appellant to establish that
about 200 to 300 voters had gone back on not finding the
polling station at the notified place has nof ln'Splred the
confidence of the learned Single Judge of the Hig~ 'Court, who H
826 SUPREME COURT REPORTS [2011] 1 S.C.R.

A had advantage of observing demeanour of the witnesses. On
re-appreciation of the said evidence it has not inspired ~ ~
confidence of this Court also. Under the circumstances, this
Court finds that it is hazardous to rely upon the evidence
adduced by the appellant for coming to the conclusion that
B because of specification of wrong place as polling station, the
result, so far as the same concerns respondent No. 2, was
materially affected. It is relevant to notice that the election in
question had taken place on April 3, 2006 and the result was \.-
declared on May 11, 2006. However, for the first time the
c appellant filed a complaint regarding polling having taken place
at a non-notified place only on May 12, 2006. Further, in the
belatedly filed complaint, it was never claimed by the appellant
that casting of the votes had taken place initially at a non-
notified place and, therefore, about 200 to 300 voters, who had
gone to the notified place to cast their votes, had returned back
0
without casting their votes, when they had learnt that the polling 11" ~
station was not set up at the notified place. Similarly, in the
Election Petition it is nowhere mentioned by the appellant that
before the shifting of the notified place polling station, voters,
who were roughly 200 to 300 in number, had to return back
E without casting their votes. The evidence adduced by the
appellant does not establish beyond reasonable doubt that
about 200 to 300 voters had gone away, without casting their
votes when it was found by them that no arrangements were
made for casting votes at the notified place. The finding
F recorded by the learned Single Judge on this point is eminently
just and is hereby upheld. What is relevant to notice is that out
of 1050 voters, whose names were registered at the notified
polling station, 557 voters had cast their votes. It means that
the voting percentage was 53.8%; The assertion made by the
· G wit~sses of the appellant that roughly about 200 to 300 voters
could not cast their votes because of shifting of official polling
station, cannot be believed for the other weighty reason that the
general pattern of polling not only in this constituency but in the
whole of India is that all the voters do not always go to the polls.
H Voting in India is not compulsory and, therefore, no minimum
KALYAN KUMAR GOGOi v. ASHUTOSH AGNIHOTRI 827'
AND ANR. [J.M. PANCHAL, J.]
percentage of votes has been prescribed either for treating an A
.-< election in a constituency as valid or for securing the return of
a candidate at the election. The voters may not turn up in large
number to cast their votes for variety of reasons such as an
agitation going on in the State concerned on national and/or
regional issues or because of boycott call given by some of the B
recognized State parties, in the wake of certain political
developments in the State or because of disruptive activities
4.
of some extremist elements, etc. It is common knowledge that
voting and abstention from voting as also the pattern of voting,
depend upon complex and variety of factors, which may defy c
reasoning and logic. Depending on a particular combination of
contesting candidates and the political party fielding them, the
same set of voters may cast their votes in a particular way and
may respond differently on a change in such combination.
Voters, it is said, have a short lived memory and not an inflexible
.. y D
allegiance to political parties and candidates. Election
manifestos of political parties and candidates in a given
election, recent happenings, incidents and speeches delivered
before the time of voting may persuade the voters to change
their mind and decision to vote for a~particular party or \
candidate, giving up their previous commitment or belief. tn E
Paokai Haokip vs. Rishang AIR 1969 SC 663, this Court has
.'"""" taken judicial notice of the fact that in India all the voters do not
always go to the polls and that the casting of votes at an election
depends upon a variety of factors and it is not possible for
anyone to predicate how many or which proportion of votes will .F
go to one or the other of the candidate. Therefore, 200 to 300 ·
voters not casting their votes can hardly be attributed to change
of venue of the polling station, though the evidence on record
does not indicate at all that about 200 to 300 voters had gone
)'
back without casting their votes. Even if it assumed for sake G
of argument that about 200 to 300 voters had gone away
without casting their votes on teaming that no polling station
. was set up at the notified place, this Court finds that no evideni::e
relating to the pattern of voting as was disclosed in the various
polling booths at which the voters had in fact gone, was H.
828 SUPREME COURT REPORTS (2011] 1 S.C.R.

A adduced by the appellant, as was adduced in case of Paokai
Haokip (supra) on the basis of which the law of averages was
arrived at against the election petitioner therein. Therefore, it
is very difficult to accept the ipse dixit of the appellant and his
witnesses that if 200 to 300 had not gone away without casting
e their votes due to non-setting up of notified polling station, they
would have voted in favour of the appellant. There is no warrant
for drawing presumption that those, who had gone away without
casting votes, would have cast their votes in favour of the
appellant, if there had been no change of venue of voting.
c Vashisht Narain's case insists on proof. In the opinion of this
Court, the 111atter cannot be considered on possibility. There
. is no room for a reasonable judicial guess.
25. The heads of substa·nuve rights in Section 100(1) are
laid down in two parts: the first dealing with situations in which
D the election must be declared void on proof of certain facts and
the second in which the election can only be declared void if
the result of the election, insofar as it concerns the returned
candidate, can be held to be materially affected on proof of
some other facts. The appellant has totally failed to prove that
E the election of the respondent No. 2, who is returned candidate,
was materially affected because of non-compliance with the
provisions of the Representation of the People Act, 1951, or
Rules or Orders made under it.
F 26. On the facts and in the circumstances of the case this
Court is of the firm opinion that the learned Single Judge of the
High Court did not commit any error in dismissing the petition
filed by the appellant challenging the election of the respondent
· No. 2. Therefore, the appeal, which lacks· merits, deserves to
be dismissed.
'G
27. For the foregoing reasons, the appeal fans and Is
dismissed. There shall be no order as to costs.
. NJ. ..
, :..
Appeal dismissed.
'· H' •',,