PRADIP BURAGOHAINversusPRANATI PHUKAN

                         [2010) 7 S.C.R. 888


A                      PRADIP BURAGOHAIN
                                   v.
                          PRANATI PHUKAN
                   (Civil Appeal No. 5561 of 2008)
                             JULY 7, 2010
B
                [D.K. JAIN AND T.S. THAKUR, JJ.]

         Representation of the People Act, 1951:

c         ss. 80, 100(1)(b) and 123(1) - State Assembly elections
    - Election petition, challenging election of returned candidate
    on grounds of corrupt practices of bribery - Dismissed by
    High Court - HELD: Standard of proof required for
    establishing a charge of corrupt practices is the same as is
o   applicable to a criminal charge - In an election dispute it is
    unsafe to accept oral evidence at its face value unless it is
    backed by unimpeachable and incontrovertible documentary
    evidence - As regards election petitioner's explanation for
    non-production of documentary evidence that election petition
E   was filed hurriedly to save the limitation, presumption would
    be drawn against him as per s. 114, Illustration (g) of Evidence
    Act ..:: There is no sufficient material to upset the judgment of
    High Court - Evidence Act, 1872 - s. 11.4., Illustration (g).

        Maxim: Omnia praesumi.ntur contra spoliatorem -
F   Applicability of.

        The election of the respondent to the Assam
   Legislative Assembly held in Mar~h 2006 was challenged
   in an election petitiori before the High Court, by the
'3 appellant, who lost to the respondent by a margin of
   nearly 20,000 votes. The grounds of challenge alleged
   were seven acts of corrupt practices out of which six were
   alleged to have been committed by the respondent at
   different places where the voters residing in the localities
H                                 888
    PRADIP BURAGOHAIN v. PRANATI PHUKAN                889


within the Constituency had assembled and th~ A
respondent requested the gathering to t:ast their votes
in her favour and gave Rs.500/- each to the voters present
at the respective places. The seventh act of corrupt
practice stated to have been committed by the respondent
was that her party workers, with the help of the money B
given by her, organized a feast on the date of the poll in
the premises near a polling station within the
Constituency; that she visited the said premises with her
supporters, and inaugurated the feast. It was also alleged
that the respondent invited the voters to the feast and c
requested them to vote in her favour. The allegations
were refuted by the respondent in her written statement.
The High Court dismissed the election petition.
Aggrieved, the election petitioner filed the appeal.

    Dismissing the appeal, the Court                          D

     HELD: 1.1        From a conspectus of the
pronouncements of this Court, three distinct aspects
emerge that need to be kept in view while dealing with
an election dispute involving commission of corrupt           E
practices. Firstly, a charge of corrupt practice is in the
nature of a criminal charge and has got to be proved
beyond doubt. The standard of proof required for
establishing a charge of corrupt practice is the same as
is applicable to a criminal charge. This implies that a       F
charge of corrupt practice is taken as proved only if there
is clear cut evidence which is entirely credible by the
standards of appreciation applicable to such cases. [para
9) [898-A-C]

  \ Sarju Pershad Ramdeo Sahu v. Raja Jwaleshwari Pratap G
Narain Singh and Ors. 1950 SCR 781 =AIR 1951 SC 120;
Rahim Khan v. Khurshid Ahmed and Ors. 1975 (1) SCR
643 = (1974) 2 SCC 660; D. Vankata Redcjy v. R. Sultan and
Ors. 1976 (3) SCR 445 = (1976) 2 SCC 455 and Ramji
Prasad Singh v. Ram Bi/as Jha and Ors. 1977 (1) SCR 741 = .H
    890     SUPREME COURT REPORTS             (2010] 7 S.C.R.

A    (1977) 1 sec 260, relied on.
        1.2. Secondly, in an election dispute it is unsafe to
    accept c>ral evidence at its face value unless the same is
    backed by unimpeachable and incontrovertible
    documentary evidence. [para 10) [898-E]
8
       Rahim Khan v. Khurshid Ahmed and Ors. 1975 (1) SCR
  643 = (1974) 2 SCC 660; M. Narayana Rao v. G. Venkata
  Reddy & Ors. 1977 (1) SCR 490 = (1977) 1 sec 771;
  Dadasaheb Dattatraya Pawar & Ors. v. Pandurang Raoji
C Jagtap & Ors. 1978 (2) SCR 524 = (1978) 1 SCC 504; and
  Laxmi Narayan Nayak v. Ramratan Chaturvedi & Ors. 1989
  (2) Suppl. SCR 581 = (1990) 2 SCC 173; and Thakur Sen
  Negi v. Dev Raj Negi and Anr. 1993 Supp (3) SCC 645 -
    relied on.
D
      1.3. The third aspect is that while as a court of first
  appeal there are no limitations on the powers of this Court
  in reversing a finding of fact or law which has been
  recorded on a misreading or wrong appreciation of the
E evidence or law, it would not ordinarily disregard the
  opinion by the trial Judge more so when he happens to
  be a High Court Judge who has recorded the evidence
  and hai; had the benefit of watching the demeanour of
  the witnesses in forming first-hand opinion regarding their
F credibility. [para 14) [901-F-G]
        Sarju Pershad Ramdeo Sahu v. Raja Jwaleshwari Pratap
    Narain Singh and Ors. 1950 SCR 781 =AIR 1951 SC 120;
    and P.C. Thomas v. P.M. Ismail & Ors. (2009) 10 SCC 239,
    relied on.
G
      1.4. In the instant case, the evidence adduced by the
  appellant to substantiate the charges leveled against the
  respondent comprises oral depositions only. The High
  Court has critically evaluated the said evidence and given
H reasons why the same was insufficient to prove the
    PRADIP BURAGOHAIN v. PRANATI PHUKAN               891


charge of corrupt practice leveled against the A
respondent. The High Court rightly noted that the
evidence adduced by the appellant did not inspire
confidence and was, therefore, insufficient to establish
the charge of corrupt practice leveled against the
respondent. There is no reason much less any B
compelling reason to take a view different from the one
taken by the High Court regarding credibility or
sufficiency of the evidence led by the appellant to prove
the charge. [para 17) [903-A-D]

    2.1 It is significant to note that neither the appellant C
nor his election agent (PW 30) claims to have been a
witness to any act of corrupt practice alleged against the
respondent. The entire case of the appellant as set up
before the High Court and even before this Court is that
the acts of corrupt practice allegedly committed by the D
respondent were reported to the appellant or his election
agent by different individuals from time to time. [para 17)
[903-E-F]

     2.2. Further, the affidavit sworn by the witnesses in E
regard to each incident of alleged corrupt practice is a
carbon copy of the other. The witnesses have admitted
in their cross-examination that the affidavits were drawn
by the counsel for the appellant in his chamber. A parrot
like story has thus emerged from the depositions of the· F
witnesses in regard to each one of the incidents which
is unsafe to believe for purposes of setting aside an · ..
electoral process in which the appellant has lost the
election by a huge margin of nearly 20000 votes. [para 17)
[903-F-H; 904-A]
                                                            G
     2.3. Besides, the witnesses examined by the
appellant appear to be partisan in character. Suffice it to
say that the depositions of the witnesses have been
evaluated by the High Court and rejected for cogent
reasons. In the absence of a palpable error in the H
    892      SUPREME COURT REPORTS             [2010] 7 S.C.R.


A appreciation of the said evidence, there is no reason to
  strike a discordant note. [para 18)

        3.1. There is no documentary evidence to show that
  any complaints were filed by the appellant or his election
8 agent before the Election Commission of India or any
  other authority upon receipt of reports regarding
  commission of the corrupt practice by the respondent.
  The appellant's version in cross-examination and that
  given by his election agent is that such complaints were
C filed before the Chief Election Commission, the Chief
  Election Officer of the District, the Returning Officer and
  the Constituency Magistrate in writing and against proper
  acknowledgement. But neither any copy of complaint so
  made nor the acknowledgment regarding their receipt by
  the authorities concerned has been produced at the trial.
D What is important is that copies of the alleged complaints
  relating to the incident of bribery were said to be available
  with the election agent of the appellant but the same were
  not annexed to the petition nor were they produced at the
  trial. The explanation offered for this omission on the part
E of the appellant and his election agent that the election
  petition had been filed hurriedly, has been rightly rejected
  by the High Court as totally unacceptable. [para 19) [904-
  H; 905-A-E]

F     3.2. Illustration (g) to s.114 of the Evidence Act, 1872
  permits the Court to draw an adverse presumption
  against the party in default to the effect that evidence
  which could be but is not produced would, if produced,
  have been unfavourable to the person who withholds it.
G The rule is contained in the well-known maxim : omnia
  praesumuntur contra spo/iatorem. If a man wrongfully
  withholds evidence, every presumption to his
  disadvantage consistent with the facts admitted or
  proved will be adopted. [para 19) [905-G-H; 906-A]

H         3.3. In an election dispute where oral evidence is
     PRADIP BURAGOHAIN v. PRANATI PHUKAN                893


generally partisan in character, as has been                   A
demonstrated in the instant case, non-production of
documentary material that could lend support to the
appellant's charge of bribery against the respondent
would assume great importance. Absence of a plausible
explanation for non-production of the documentary              B.
evidence would completely discredit the version which
the oral evidence attempts to support. [para 19] [906-A-
C]
     3.4. Besides, in her deposition the respondent has C
denied her presence on 29th and 31st March, 2006 at the
places alleged. She also denied in no uncertain terms that
she had organized any public feast on 3rd April, 2006 at
the place alleged. It is significant that these statements
and denials of the respondent have not been seriously
questioned in cross-examination, which would imply that D
the statement made by the respondent has not been
seriously disputed by the appellant. At any rate, there is
nothing in the cross-examination to discredit the version
of the respondent. [para 20] [906-D-G]
                                                               E
     4. Even taking the most charitable view of the
  evidence which the appellant has adduced in support of
  his case, all that may be said is that a second opinion on
  the same material was possible. That, however, is not by
  itself sufficieµt for this Court to upset the judgment of the F
  High Court or interfere with the result of a hard earned
  electoral victory.Having regard to the seriousness of the
  charge of corrupt practice, and the nature of the evidence
  that has been adduced by the appellant, it is a fit case
  where this Court ought to give the benefit of doubt to the G
  respondent and leave her election untouched. [para 21-
; 22] [907 -8-F]

     Ram Singh and Ors. v. Col. Ram Singh 1985 (Supp)
 sec 611 - relied on.
                                                               H
    894      SUPREME COURT REPORTS                [2010] 7 S.C.R.


A                        Case Law Reference:

    1950 SCR 781                     relied on           para 9

    1975 (1) SCR 643                 relied on           para 9

    1976 (3) SCR 445                 relied on           para 9
B
    1977 (1) SCR 741                 relied on           para 9

    1977 (1) SCR 490                 relied on           para 11

    1978 (2) SCR 524                 relied on           para 12
c
    1989 (2) Suppl. SCR 581          relied on           para 12

    1993 Supp (3) sec 645            relied on           para 13

    (2009) 1o sec 239                relied on           para 16
D   1985 (Supp) sec 611              relied on           para 21

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5561 of 2008.

        From the Judgment & Order dated 21.07.2008 of the High
E   Court of Gauhati in Election Petition No. 5 of 2006.

        K.V. Viswanathan, Manish Goswami, Abantee Dutta,
    Subramanyan P.B., Abhishek Kaushik (for Map & Co.) for the
    Appellant.
F
        Anoop G. Chaudhary, Navneet Kumar (for Corporate Law
    Group) for the Respondent.

          The Judgment of the Court was delivered by

          T.S. THAKUR, J. 1. This appeal under Section 116 A of
    the Representation of People Act, 1951 arises out of an order
    passed by the High Court of Assam at Gauhati whereby election
    petition No.5 of 2006 filed by the appellant herein challenging
    the election of the respondent to the Assam State Legislative
H   Assembly has been dismisser!. The factual backdrop in which
     PRADIP BURAGOHAIN v. PRANATI PHUKAN                       895
                [T.S. THAKUR, J.]

the election petition and the present appeal came to be filed          A
may be summarised as under:

      2. General elections to the Assam Legislative Assembly
were held in March 2006 in terms of a schedule announced by
the Election Commission of India. The appellant was an 8
independent candidate for No.120 Naharkatiya Assembly
Constituency that went to poll on 3rd April, 2006. The result
announced by the Returning Officer for the said constituency,
however, declared the respondent Smt. Pranati Phukan set up
by the National Congress Party elected by a margin of nearly C
20,000 votes over the appellant who emerged as her nearest
rival. Aggrieved by the outcome of the electoral contest the
appellant filed election petition No.5 of 2006 before the High
Court at Gauhati assailing the election of the respondent on the
ground that the same was vitiated by several acts of corrupt
practice allegedly committed by the respondent. The appellant D
enumerated seven specific instances of corrupt practices in
support of his case. The first of these acts of corrupt practices
alleged by the appellant was committed on 29th March, 2006
at Langherjan Tea Estate where some voters residing in the
said locality and enrolled in the electoral rolls for po.lling stations E
no.38 and 39 of the constituency had assembled. According
to the appellant, when the respondent arrived at the place
mentioned above she requested the gathering to cast their
votes in her favour and gave Rs.500/- each to the voters present
there.                                                                  F

     3. The second act of corrupt practice allegedly committed
by the respondent was on the same day at about 9.00 p.m.
when she along with her supporters and party workers went to
Line No.9, Baghmara village near M/s Makum Motors and G
requested the voters of polling stations no.77, 78 and 79
assembled there to cast their votes in her favour by offering
Rs.500/- each to those present there.

     4. T"e third act of corrupt practice allegedly committed by
the respondent was at about 12.00 noon on 31st March, 2006             H
    896     SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A   when she is alleged to have visited labour line of Desam Tea
    Estate situated near the playground of Desam Tea Estate and
    induced the voters present there to cast their votes for her by
    offering them Rs.500/- each. Shri Hiranya Mantri, election agent
    of the respondent, is also alleged to have offered Rs.500/- each
B   to some of the voters named in the petition when he visited the
    labour line of Desam Tea estate on the same at about 4.00
    p.m., constituting the fourth act of corrupt practice committed
    in the course of the electoral process.

C        5. The fifth act of corrupt practice is alleged to have been
    committed by the respondent at Chakalia Harimandir at
    Panibura village at about 1.30 p.m. on 1st April, 2006 when she
    offered Rs.500/- each to the voters named in the petition to
    induce them to vote for her. Shri Hiranya Mantri, the election
    agent of the respondent, accompanied by Shri Rajen Lahon is
D   also allEiged to have visited Nabajyoti LP. School premises at
    Panibura Pathar village on the same day and offered Rs.500/
    - each to some of the voters named in the petition who were
    present there, constituting the sixth act of corrupt practice.

E         6. The seventh act of corrupt practices committed by the
    respondent was in the form of a feast allegedly organized by
    her on the date of the poll i.e. 3rd April, 2006 in a premises
    belonging to a garden employee of Namrup Tea Estate near
    polling station no.88 of the constituency. According to the
F   averments made in the election petition the respondent visited
    the aforesaid place with her supporters Smt. Runu Arandhara,
    President of Dibrugarh Zila Parishad at about 10.00 a.m. and
    inaugurated the feast. The feast was enjoyed by the voters of
    polling station no.88 and was arranged by congress workers
G   with the help of the money allegedly given by the respondent. It
    is also alleged that the respondent herself invited the voters to
    the feast and requested them to vote in her favour.

         7. In the written statement filed by the respondent the
    allegations made in the election petition were strongly refuted
H   giving rise to fifteen issues. Six out of these issues pertained
     PRADIP BURAGOHAIN v. PRANATI PHUKAN                      897
                [T.S. THAKUR, J.]

to the maintainability of the election petition while the remaining   A
nine dealt with the commission of the corrupt practices alleged
against the respondent and the consequences flowing from the
same.

     8. In support of his case the appellant examined as many B
as twenty nine witnesses apart from getting his own deposition
recorded. The respondent also stepped into the witness box
but remained content with examining her election agent as RW.
2. By the judgment impugned in this appeal, the High Court
decided Issues 1 to 6 in favour of the appellant Issue nos.7 to       c
13 relating to the acts of corrupt practices alleged by the
appellant were, however, decided against the appellant and in
favour of the respondent, resulting in the dismissal of the
election petition. The High Court held that the oral evidence
adduced by the appellant in support of his allegations did not
                                                                 0
establish the truthfulness thereof. The High Court was also of
the view that although complaints wt::re alleged to have been
made to the authorities conducting and supervising the election
process yet copies of the said complaints had not been
produced. The explanation offered by the appellant for non-
production of the said complaints was rej_ected by the High E
Court as unacceptable. The witnesses examined by the
appellant were found to be either partisan or untrustworthy on
account of their association with the appellant and the
Naharkatia Sports Association of which he is the President.
Relying upon the decisions of this Court, the High Court held F
that a corrupt practice ought to be established by cogent and
reliable evidence which evidence the appellant had failed to
adduce. The present appeal assails the correctness of the said
order, as noted above.
                                                                 G
     9. The law relating to proof of corrupt practices under the
Representation of People Act has been authoritatively declared
by this Court in a long line of decisions starting with Sarju
Pershad Ramdeo Sahu v. Raja Jwaleshwari Pratap Narain
Singh and Ors. (AIR 1951 SC 120). It is not, in our opinion, H
    898       SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A necessary to refer to all the decisions that have been delivered
  by this Court on the subject over the past six decades since
  Sarju Pershad's case (supra). Reference to some of them only
  should suffice. From a conspectus of the pronouncements of
  this Court three distinct aspects emerge that need to be kept
B in view while dealing with an election dispute involving
  commission of corrupt practices. The first and foremost of these
  aspects to be borne in mind is the fact that a charge of corrupt
  practice is in the nature of a criminal charge and has got to be
  proved beyond doubt. The standard of proof required for
C establishing a charge of corrupt practice is the same as is
  applicable to a criminal charge. This implies that a charge of
  corrupt practice is taken as proved only if there is clear cut
  evidence which is entirely credible by the standards of
  appreciation applicable to such cases. (See Rahim Khan v.
D Khurshid Ahmed and Ors. (1974) 2 SCC 660, D. Vankata
  Reddy v. R. Sultan and Ors. (1976) 2 SCC 455 and Ramji
  Prasad Singh v. Ram Bi/as Jha and Ors. (1977) 1 SCC 260.)

       10. The second aspect that distinctly emerges from the
E pronouncements of this Court is that in an election dispute it is
  unsafe to accept oral evidence at its face value unless the same
  is backed by unimpeachable and incontrovertible documentary
  evidence. The danger underlying acceptance of such oral
  evidence in support of a charge of corrupt practice was lucidly
  stated by this Court in Rahim Khan's case (supra) in the
F following words:

          "We must emphasize the danger of believing at its face
          value oral evidence in an election case without the backing
          of sure circumstances or indubitable documents. It must
G         be remembered that corrupt practices may perhaps be
          proved by hiring half-a-dozen witnesses apparently
          respectable and dis-interested, to speak to short and
          simple episodes such as that a small village meeting took
          place where the candidate accused his rival of personal
H         vices. There is no X-ray whereby the dishonesty of the
    PRADIP BURAGOHAIN v. PRANATI PHUKAN                       899
               [T.S. THAKUR, J.]

    story can be established and, if the Court were gullible          A
    enough to gulp such oral versions and invalidate elections,
    a new menace to our electoral system would have been
    invented through the judicial apparatus. We regard it as
    extremely unsafe, in the present climate of kilkenny-cat
    election competitions and partisan witnesses wearing              B
    robes of veracity, to upturn a hard won electoral victory
    merely because lip service to a corrupt practice has been
    rendered by some sanctimonious witnesses. The Court
    must look for serious assurance, unlying circumstances or
    unimpeachable documents to uphold grave charges of                c
    corrupt practices which might not merely cancel the
    election result, but extinguish many a man's public life."

    11. To the same effect is the decision of this Court in M.
Narayana Rao v. G. Venkata Reddy & Ors. (1977) 1 SCC 771
where this Court observed:                                            D

    "A charge of corrupt practice is easy to level but difficult
    to prove. If it is sought to be proved only or mainly by oral
    evidence without there being contemporaneous document
    to support it, court should be very careful in scrutinizing the   E
    oral evidence and should not lightly ac;cept it unless the
    evidence is credible, trustworthy, nat;miiand showing
    beyond doubt the commission of corrupt practice, as
    alleged."

     12. Reference may also be made to ttie decision of this
                                                                      F
Court in Dadasaheb Dattatraya Pawar & Ors. v. Pandurang
Raoji Jagtap & Ors. (1978) 1 SCC 504 where this Court
expressed a similar sentiment and Laxmi Narayan Nayak v.
Ramratan Chaturvedi & Ors. (1990) 2 SCC 173 where this
Court upon a review of the decisions on the subject held the          G
following principles applicable to election cases involving
corrupt practices:

    "(I) The pleadings of the election petitioner in his petition
    should be absolutely precise and clear containing all             H
    900      SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A         necessary details and particulars as required by law vide
          Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (1987)
          Supp. SCC 93 and Kana Prabhakara Rao v. M.
          Seshagiri Rao (1982) 1 SCC 442.

          (II) The allegations in the election petition should not be
B
          vague, general in nature or lacking of materials or frivolous
          or vexatious because the court is empowered at any stage
          of the proceedings to strike down or delete pleadings which
          are suffering from such vices as not raising any triable issue
          vide Manphul Singh v. Surinder Singh (1973) 2 SCC 599,
c         Kana Prabhakara Rao v. M. Seshagiri Rao Rao (1982)
          1 SCC 442 and Dhartipakar Madan Lal Agarwal v. Rajiv
          Gandhi (1987) Supp. sec 93.

          (Ill) The evidence adduced in support of the pleadings
D         should be of such nature leading to an irresistible
          conclusion or unimpeachable result that the allegations
          made, have been committed rendering the election void
          under Section 100 vide Jumuna Prasad Mukhariya v.
          Lachhi Ram AIR 1954 SC 686 and Rahim Khan v.
E         Khurshid Ahmed (1974) 2 SCC 660.

          (IV) The evidence produced before the court in support of
          the pleadings must be clear, cogent, satisfactory, credible
          and positive and also should stand the test of strict and
          scrupulous scrutiny vide Ram Sharan Yadav v. Thakur
F         Muneshwar Nath Singh (1984) 4 SCC 649.

          (V) It is unsafe in an election case to accept oral evidence
          at its face value without looking for assurances for some
          surer circumstances or unimpeachable documents vide
G         Rahim Khan v. Khurshid Ahmed (1974) 2 SCC 660, M.
          Narayana Rao v. G. Venkata Reddy (1977) 1 SCC 771,
          Lakshmi Raman Acharya v. Chandan Singh (1977) 1
          SCC 423 and Ramji Prasad Singh v. Ram Bi/as Jha
          (1977) 1 sec 260.
H
    PRADIP BURAGOHAIN v. PRANATI PHUKAN                  901
                     [T.S. THAKUR, J.]
                                       •
    (VI) The onus of proof of the allegations made in the A
    election petition is undoubtedly on the person who assails
    an election which has been concluded vide Rahim Khan
    v. Khurshid Ahmed (1974) (2) SCC 660, Mohan Singh
    v. Bhanwarlal AIR 1964 SC 1366 and Ramji Prasad
    Singh v. Ram Bi/as Jha (1977) 1 SCC 260."                  B

     13. The decision of this Court in Thakur Sen Negi v. Dev
Raj Negi and Anr. 1993 Supp (3) SCC 645 also states the
same proposition and highlights the danger underlying
acceptance of oral evidence in an election dispute as witnesses C
in such disputes are generally partisan and rarely independent.
This Court observed:

    "It must be remembered that in an election dispute the
    evidence is ordinarily of partisan witnesses and rarely of
    independent witnesses and, therefore, the court must be D
    slow/fn accepting oral evidence unless it is corroborated
    by r~liable and dependable material. It must be
    remembered that the decision of the ballot must not be
    lightly interfered with at the behest of a defeated candidate
    unless the challenge is on substantial grounds supported E
    by responsible and dependable evidence."

      14. The third aspect that is equally important and fairly well-
settled is that while as a Court of first appeal there are no
limitations on the powers of this Court in reversing a finding of
fact or law which has been recorded on a misreading or wrong F
appreciation of the evi~ence or law, it would not ordinarily
disregard the opinion by the trial Judge more so when the trial
Judge happens to be a High Court Judge who has recorded
the evidence and who has had the benefit of watching the
demeanour of the witnesses in forming first-hand opinion G
regarding their credibility.

    15. In Sarju Pershad's case (supra) this Court stated the
approach to be adopted in an appeal arising out of an election
dispute in the following words:                                    H
    902      SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A         "The question for our consideration is undoubtedly one of
          fact, the decision of which depends upon the appreciation
          of the oral evidence adduced in the case. In such cases,
          the appellate court has got to bear in mind that it has not
          the advantage which the trial Judge had in having the
B         witnesses before him and of observing the manner in
          which they deposed in court. This certainly does not mean
          that when an appeal lies on facts, the appellate court is
          not competent to reverse a finding of fact arrived at by the
          trial Judge. The rule is - and it is nothing more than a rule
c         of practice - that when there is conflict of oral evidence of
          the parties on any matter in issue and the decision hinges
          upon the credibility of the witnesses, then unless there is
          some special feature about the evidence of a particular
          witness which has escaped the trial Judge's notice or there
          is a sufficient balance of improbability to displace his
D
          opinion as to where the credibility lies, the appellate court
          should not interfere with the finding of the trial Judge on a
          question of fact."

          16. Reference may also be made to the recent decision
E   of this Court in P. C. Thomas v. P. M. Ismail & Ors. (2009) 1O
    SCC 239 where this Court observed:

          "This Court in Gajanan Krishnaji Bapat (1995) 5 SCC 347
          has observed that although being the court of first appeal,
F         this Court has no inhibition in reversing such a finding, of
          fact or law, which has been recorded on a misreading or
          wrong appreciation of the evidence or the law, but
          ordinarily the appellate court attaches great value to the
          opinion formed by the trial Judge, more so when the trial
          Judge happens to be a High Court Judge, had recorded
G
          the evidence and had the benefit of watching the
          demeanour of witnesses in forming first-hand opinion of
          them in the process of evaluation of evidence. This Court
          should not interfere with the findings of fact recorded by
          the trial court unless there are compelling reasons to do
H         so."
    PRADIP BURAGOHAIN v. PRANATI PHUKAN                     903
               [T.S. THAKUR, J.]

      17. Coming to the facts of the case at hand the evidence      A
adduced by the appellant to substantiate the charges leveled
by him against the respondent comprises oral depositions of
as many as 30 witnesses including the appellant himself. The
High Court has critically evaluated the said evidence and given
reasons why the same was insufficient to prove the charge of        B
corrupt practice leveled against the respondent. The High Court
noted, and in our opinion rightly so, that the evidence adduced
by !he appellant did not inspire confidence and was therefore
insufficient to establish the charge of corrupt practice leveled
against the respondent. We have been taken through the              c
deposition of the witnesses examined by the parties at
considerable length and we see no reason much less any
compelling reason to take a view different from the one taken
by the High Court regarding the credibility or the sufficiency of
the evidence led by the appellant to prove the charge. We do
                                                                    0
not consider it necessary to discuss the deposition of each
witness examined on behalf of the appellant for that exercise
has been done by the High Court in detail which we find
satisfactory. We may all the same note a few significant features
that emerge from the deposition of the witnesses examined by
the appellant and that impinge seriously upon the case of the       E
appellant. The first and the foremost feature that needs to be
noticed is the fact that neither the appellant nor his election
agent (PW 30) claims to be a witness to any act of corrupt
practice alleged against the respondent. The entire case of the
appellant as set up before the High Court and even before us        F
is that the acts of corrupt practice allegedly committed by
respondent were reported to the appellant or his election agent
by different individuals from time to time. The second aspect
which is noteworthy is that the affidavit sworn by the witnessess
in regard to each incident of alleged corrupt practice is a         G
carbon copy of the other. The witnesses have admitted in their
cross-examination that the affidavits were drawn by the counsel
for the appellant in his chamber. A parrot like story has thus
emerged from the depositions of the witnesses in regard to
each one of the incidents which we consider unsafe to believe       H
    904     SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A   for purposes of setting aside an electoral process in which the
    appellant has lost the election by a huge margin of nearly 20000
    votes.

         18. The third aspect which we find noteworthy is that the
    witnesses examined by the appellant appear to be partisan in
8
    character. For instance PW-23 Smt. Gita Romoni has admitted
    in her cross-examination that she had come to depose before
    the Court at the instance of the election agent of the appellant.
    She has also admitted that she was a member of Naharkatia
C   Sports Association of which the appellant is the President. She
    appears to have readily accepted the bribe offered to her but
    failed to report the matter to any authority except to the
    petitioner. Similarly, PW-23 Smt. Gita Romoni is also a
    sportsperson and plays football for Naharkatia Sports
    Association of which the appellant is the President. This is true
D   even in regard to PWs 8 and 9 who happen to be father and
    daughter respectively, the latter being a football player
    associated with Naharkatia Sports Association. The incident
    of bribery alleged against the respondent at labour line of
    Desam ea Estate was not reported by these two witnesses to
E   anyone and not even to the Manager of the tea garden
    concerned. So also PWs 15 and 16 are father and daughter
    whose testimony has been disbelieved by the High Court for
    good reasons while dealing with Issue No.13 pertaining to the
    commission of corrupt practice of bribery by Shri Hiranya
F   Mantri, the election agent of the respondent at Nabajyoti L.P.
    School premises. Suffice it to say that the deposition of the
    witnesses has been evaluated by the High Court and rejected
    for CO!lent reasons. In the absence of a palpable error in the
    appreciation of the said evidence we see no reason to strike
G   a discordant note.

         19. The last but not the least of noteworthy aspects to
    which we must refer at this stage is the absence of any
    documentary evidence to show that any complaints were filed
    by the appellant or his election agent before the Election
H
      PRADIP BURAGOHAIN v. PRANATI PHUKAN                     905
                 [T.S. THAKUR, J.]

  Commission of India or any other authority upon receipt of A
  reports regarding commission of the corrupt practice by the
  respondent. The appellant's version in cross-examination and
  that given by his election agent is that such complaints were
  filed before the Chief Election Commission, the Chief Election
  Officer of the District, the Returning Officer and the Constituency B
  Magistrate in writing and against proper acknowledgement. But
  neither any copy of complaint so made nor the
  acknowledgment regarding their receipt by the concerned
  authorities has been produced at the trial. What is important is
· that copies of the alleged complaints relating to the incident of c
  bribery were said to be available with the election agent of the
  appellant but the same were not annexed to the petition or
  produced at the trial. The explanation offered for this omission .
  on the part of the appellant and his election agent is that the
  election petition had been filed hurriedly. The High Court has,
                                                                      0
  in our opinion, rightly rejected that explanation as totally
  unacceptable. Even assuming that the election petition had
  been filed hurriedly on account of constraints of period of
  limitation prescribed for the same, nothing prevented the
  appellant from placing the said complaints on record or having E
  the same summoned from the concerned authorities to whom
  they were addressed. Non-production of the documents
  admittedly available with the appellant that would lend credence
  to the version set up by the appellant that the incident of corrupt
  practice was reported to him and/or to his election agent would
  give rise to an adverse inference against the appellant that F
  either such complaints were never made or if the same were
  made they did not contain any charge regarding the
  commission of corrupt practices by the respondent in the
  manner and on the dates and the places alleged in the petition.
  We may in this regard refer to illustration (g) to Section 114 of G
  the Evidence Act which permits the Court to draw an adverse
  presumption against the party in default to the effect that
  evidence which could be but is not produced would, if produced,
  have been unfavourable to the person who withholds it. The rule
  is contained in the well-known maxim : omnia praesumuntur H
    906     SUPREME COURT REPORTS                  [2010] 7 S C.R.


A   contra spoliatorem. If a man wrongfully withholds evidence,
    every presumption to his disadvantage consistent with the facts
    admitted or proved will be adopted. We need to remind
    ourselves that in an election dispute where oral evidence is
    generally partisan in character as has been demonstrated in
B   the present case, the non-production of documentary material
    that could lend support to the appellant's charge of bribery
    against the respondent would assume great importance.
    Absence of a plausible explanation for non-production of the
    documentary evidence would completely discredit the version
c   which the oral evidence attempts to support.

         20. Before parting with the discussion on the evidence
    adduced by the appellant we may note one other factor that
    needs to be mentioned. In her deposition the respondent has
    denied her presence at Langherjan Tea Estate on 29th March,
D   2006 or at any place near the said tea estate. She also denied
    her presence on 29th March, 2006 at 9.00 p.m. at Line No.9,
    Baghmara village near M/s Makum Motors where she is alleged
    to have committed the corrupt practice of offering bribe to the
    voters. The allegation that she was at the Desam Tea Estate
E   on 31st March, 2006 and went to the labour line of the said
    estate has also been denied by her specifically in her
    examination-in-chief. The fact that she had organized a public
    feast at a quarter belonging to tea garden employee on 3rd
    April, 2006, has also been similarly denied in no uncertain
F   terms. It is significant that the above statements and denials of
    the respondent have not been seriously questioned in cross-
    examination. In the absence of cross-examination on these
    aspects regarding the denial of the respondent about her
    presence at the places where she is alleged to have committed
G   the corrupt practices would imply that the statement made by
    her has not been seriously disputed by the appellant. At any
    rate, there is nothing in the cross-examination to discredit the
    version of the respondent leave alone suggest that she was
    making a false statement regarding her presence at the places
H
       PRADIP BURAGOHAIN v. PRANATI PHUKAN                    907
                  [T.S. THAKUR, J.]

where she is alleged to have committed the acts of corrupt            A
practices.

    21. In conclusion we would say that even taking the most
charitable view of the evidence which the appellant has
adduced in support of his case, all that may be said is that a
                                                                      8
second opinion on the same material was possible. That,
however, is not by itself sufficient for this Court to upset the
judgment of the High Court or interfere with the result of a hard
earned electoral victory. We may gainfully extract the following
passage from the decision of this Court in Ram Singh and Ors.         C
v. Col. Ram Singh 1985 (Supp) SCC 611:

       "In borderline cases the courts have to undertake the
       onerous task of, "disengaging the truth from falsehood, to
       separate the chaff from the grain". In our opinion, all said
       and done, if two views are reasonably possible - one in        D
       favour of the elected candidate and the other against him
       - courts should not interfere with the expensive electoral
       process and instead of setting at naught the election of the
       winning candidate should uphold his election giving him
       the benefit of the doubt. This is more so where allegations    E
       of fraud or undue influence are made."

     22. Having regard to the seriousness of the charge of
corrupt practice, and the nature of the evidence that has been
adduced by the appellant the present is a fit case where we
ought to give the benefit of doubt to the respondent and leave        F
her election untouched.

     23. In the result this appeal fails and is hereby dismissed
but in the circumstances without any order as to costs.
                                                                      G
R.P.                                          Appeal dismissed.