Nand Singh vs Ajit Inder Singh on 3 June, 1999

ORDER

K.K. Srivastava, J.

1. Petitioner Nand Singh, a resident of village Danewala and enrolled as a voter at serial No. 83 part 66 of 117 Sardulgarh Assembly Constituency (for short to be referred as ‘Constituency’) seeks the setting aside of election of respondent Ajit Inder Singh son of Pritam Singh, resident of village and P.O. Moffar, Tehsil Sardulgarh, District Mansa as member of the Legislative Assembly of the State of Punjab from the aforesaid constituency and further to hold the respondent guilty of committing corrupt practices under Section 123(8) of the Representation of People Act, 1951. He also seeks a declaration to the effect that the respondent aforesaid was disqualified for a period of six years because of committing corrupt practices.

2. General elections for member of the Punjab State Legislative Assembly were held on 7-2-1997. The time scheduled for polling was from 7.30 a.m. to 4.30 p.m. respondent Ajit Inder Singh contested the election from the said Constituency of Sardulgarh. Shri Viney Partap Singh son of Gurprem Singh, resident of Abul Khurana was the election agent of the respondent. Gurpreet Singh alias Gurry and Karam Singh were the polling agents of the respondent at Polling Booth No. 66-A of village Danewala. Shri Sukhjiwan Singh, a Teacher of Mathematics of the Government Senior Secondary School, Jhuneer was the Presiding Officer of Booth No. 66-A aforesaid. The other polling staff on duty at the said polling booth comprised of Ranjit Singh, Punjabi Teacher of Government Middle School, Dhinger, Shamsher Singh, J. B. T. Teacher of Government Primary School, Raipur and Anil Kumar, Clerk of the Office of Deputy Director, Animal Husbandry, Mansa. Balvinder Singh Bhundar was a candidate of Shiromani Akali Dal who contested the election from the Constituency aforesaid. It was alleged in the petition that at about 4.00 p.m. on the date of polling i.e. 7-2-1997 at polling booth No. 66-A situated in Government Primary School, Danewala, Shri Viney Partap Singh, the election agent of the respondent Ajit Inder Singh accompanied by Gurpreet Singh alias Guri son of Shri Raghbir Singh resident of Makhewala, Tehsil Sardulgarh District Mansa, Balvinder Singh son of Surjit Singh and Sukhvinder Singh son of Bant Singh, both residents of village Moffar and two gunmen, namely, Gurnam Singh son of Jung Singh alias Jungeer Singh, P.S. Lambi, resident of Arniwala and Balvidner Singh son of Puma Singh, resident of Rattakhera now resident of Abul Khrana clad in Police uniform came on a Tata-Sumo vehicle which displayed no number. On the number plate of the said Tata-Sumo it was mentioned as ‘ A/F’. Viney Partap Singh aforesaid and his companions forcibly entered the polling booth No. 66-A and snatched the ballot papers from the Presiding Officer Sukhjiwan Singh aforesaid. Gurpreet Singh alias Guri started putting the stamps on the ballot papers in favour of respondent Ajit Inder Singh against his election symbol ‘Sun’. Karam Singh, the polling agent of the respondent and two other agents of the Congress and CPM candidates who were present on polling booth No. 66-A folded the ballot papers and put the same in the ballot boxes. The polling agents aforesaid affixed thumb impressions on the counter-foils of the ballot papers. It was also alleged that Viney Partap Singh, who is the nephew (Bhanja) of the respondent Ajit Inder Singh, was armed with a revolver and held the same in his hand and asked the Presiding Officer and other polling officers aforesaid who were on duty and also Darshan Singh son of Dalip Singh, polling agent of Shri Balvinder Singh to stand quiet on one side of the polling booth and threatened to kill them if they tried to interfere. The Presiding Officer, polling officers and the polling agent aforesaid were considerably frightened. The two gunmen accompanying Viney Partap Singh had stopped the security personnels and voters from entering into the polling booth 66-A. The petitioner, alleged that about 89 votes were forcibly marked, and put in the ballot boxes. These 89 ballot papers did not have the signature of the Presiding Officer. After the said booth capturing, Viney Partap Singh and his companions and gunmen made their escape good in the said Tata-Sumo vehicle by firing in the air. The security personnels had tried to prevent them from fleeing from the polling booth aforesaid but they could not stop them.

3. After Viney Partap Singh and his companions and gunmen ran away from the polling booth aforesaid, the polling staff collected the whole record of the election and the Presiding Officer made a mention about this incident in his Presiding Officer’s diary. FIR No. 9 regarding this occurrence was lodged at Police Station Jhuneer under Sections 353, 186, 188, 336, 506, 148, 149 of the Indian Penal Code and Sections 25 and 27 of the Arms Act and under Section 135-A of the Representation of the People Act. The averments made in the FIR were re-produced in para 5 of the election petition, which read as under :

“Statement of Sukhjivan Singh son of Shri Sukhjit Singh Jat resident of Mansa, Presiding Officer village Danewala, booth No. 66-A, West side 117-Sardulgarh Assembly Constituency, age about 40 years.

It is stated that I am resident of Chand Chahal Wali Gali near office of Horticulture, Mansa. I am posted as Math master at Government Senior Secondary School, Jhuneer. I was assigned the duty as Presiding Officer for Assembly Election of 1997 at booth No. 66-A, West side of village Danewala. Shri Ranjit Singh, Pujabi Master, Government Middle School, Dinger, polling officer No. 1; Shamsher Singh JBT master, Government Primary School, Raipur; polling officer and Anil Kumar, Clerk, Animal Husbandry Department, Mansa, polling officer were on duty with me. And for security H.C. Suraj Singh, No. 526, constable Hurmat Singh, No. 183, constable Mata Parshad, 402/17Bn. SAP Madhya Pradesh, SPO, Ravinder Rish No. 37/Mansa, PHG, Darshan Singh No. 21431 were posted. It was about 4.00/ 4.15 p.m. that we were busy in polling process and the votes were being polled peacefully. During this period, Shri Darshan Singh son of Dalip

Singh, Karam Singh son of Chand Singh, Binder Singh son of Sagar Singh and Milkha Singh son of Baldev Singh, all were residents of village Dhanewala were present as agents. Karam Singh was agent of Mann Group, Milkha Singh of Akali Dal Badal, Binder Singh of Congress and Darshan Singh of Marxist Group. During this period four persons with plain clothes and two persons in police uniform entered into the polling booth. Out of them one was being called Gurry of village Makhewala and the another of them was being called as nephew (sister’s son) of Ajit Inder Singh whose village is Abdul Khurana. Out of them, the description of another is age about 30-35 years, open beard, having hair on head, fair complexion, medium height and he was wearing white shirt and trouser and had tied coca-cola colour turban. The description of fourth was as slim body, was wearing white shirt pajama and white turban, whitish complexion, tied beard. Both the persons in uniform were being called as gunmen of nephew (sister’s son) of Ajit Inder Singh Moffar, the candidate. The boy who was being called as nephew (sister’s son) of Moffar has said votes be polled. With this saying, the persons who were sitting inside as poll agents out of them Darshan Singh, Binder Singh, Karam Singh came with them and snatched ballot papers from me. The person who was being called as Gurry put the stamps on ballot on the symbol of “sun” despite of my resistance and the other three persons put the thumb impression on the counterfoil of the ballot and by folding the ballot papers put them into the ballot boxes. The person who was being called as Moffar’s nephew (sister’s son) was standing with revolver in his hand while other two persons who were in uniform and were armed with weapons were stopping the polling security personnels from entering into the polling room. All these persons were firing and making and raising slogans for about 10/15 minutes and ran away. Outside the wall of school they fired one shot and ran away with their weapons on vehicle Tata Sumo. In this booth the total no. of votes were 680. Out of them 489 votes had been polled. The ballot papers bearing serial No. 060412 to 060500 i.e. total 89 votes did not bear my signatures. They got these ballot papers by Force. On these ballot papers, the stamp of 117/66-A had not been affixed. All these persons were affixing the same. At that time the time of polling was about to end. When this occurrence took place with me and my staff, then my ail staffs were got feared. We all collected the whole material as per the election rules. Then the security personnels tried to catch them but they ran away on their Tata Sumo while firing. Then I along with my staff came to Nehru Memorial College to deposit the election record. In this regard I have mentioned the occurrence in my presiding diary and handed over the same with record to the Returning Officer. I have recorded the above statement which you have read over to me and made me understand after writing the same which is correct.

Sd/-      

Sukhjivan Singh

P.O. Danewala   

66-A, West Side.”

4. The petitioner further alleged that Darshan Singh, Karam Singh and Binder Singh were arrested in the said FIR case. They were granted bail by the Judicial Magistrate, Mama vide order dated 10-2-1997. The learned Judicial Magistrate 1st Class issued warrants of arrest against Viney Partap Singh and Gurnam Singh son of Jang Singh for 1-3-1997 vide order dated 17-2-1997. Viney Partap Singh was arrested and granted bail on 10-3-1997. It was alleged that the investigation in the case was under progress and statements of various persons had been recorded. The witnesses have deposed before the Investigating Officer about Viney Partap Singh and Gurpreet Singh indulging in booth capturing at booth No. 66-A of village Danewal of the aforesaid constituency.

5. The Election Commission of India cancelled the polling of booth No. 66-A of village Danewala on 8-2-1997 and ordered for repolling of votes at the said polling booth. The repolling took place on 9-2-1997 after due publicity was made about the repolling through Munadi in the village. The time of the repolling was from 7.30 a.m. to 4.30 p.m.

6. The averments made in the election petition, particularly, in paras 4, 4(i), 4(ii), 4(iii), 5,6, 7 and 8 regarding the commission of corrupt practice of booth capturing were verified by the petitioner in his affidavit on 22-3-1997.

7. Summons were issued to the respondent who put in appearance and filed written statement admitting the fact that he contested the election from 117-Sardulgarh Assembly Constituency for the membership of the Legislative Assembly of the State of Punjab and was declared duly elected by the Returning Officer. The allegations of booth capturing at polling booth No. 66-A, village Danewala of the Constituency were categorically denied. It was alleged that Gurpreet Singh alias Gury had nothing to do with the election of the respondent. Gurpreet Singh was neither the election agent nor the polling agent nor was authorised for any purpose whatsoever by the respondent. Even the identity of Gurpreet Singh was stated to be vague inasmuch as his parentage, village, town etc. were not mentioned in the election petition. The respondent contended that he was not aware of the names of the polling staff which was posted on polling duty at the said polling booth No. 66-A. The names of the polling agents of other candidates were denied for want of knowledge. He alleged that S. Balvinder Singh son of S. Surjit Singh, Sukhminder Singh son of Bant Singh of village Moffar were his polling agents at the polling booth at village Moffar and were present there during the polling period. It was further submitted that Balwinder Singh son of S. Puran Singh had nothing to do with the election of the respondent. The respondent admitted that S. Viney Partap Singh was his election agent and Gurnam Singh son of Jang Singh was his gunman. He, however, denied that Viney Partap Singh travelled on a vehicle without number plate. It was also mentioned that any vehicle without a number plate was not allowed to operate during the election by the Authorities under strict instructions of the Election Commission. He specifically mentioned that his election agent Viney Partap Singh did not go to village Danewala at all on the date of polling as his duty did not include that area for supervising the polling. It was mentioned that the respondent himself was supervising the said area which included village Danewala on the date of polling. The whole story of booth capturing mentioned in the election petition was described to be a concocted one by the petitioner in connivance with Sh. Balwinder Singh Bhunder, the defeated candidate. He further alleged that the election staff became the tools in the hands of Sh. Balwinder Singh Bhunder and false evidence was created for the purpose of filing the election petition. He further alleged that the polling staff in connivance with Shri Balwinder Singh Bhundar created a false record and made totally baseless allegations in FIR No. 9 as referred to in the petition. The sole purpose behind the said FIR was to create false evidence for filing the election petition. The facts mentioned in the FIR were false to the knowledge of the petitioner. The whole exercise was being done by the petitioner under the pressure of Balwinder Singh Bhudar who has been appointed as Chairman of the Punjab State Agriculture Marketing Board with the rank of a Minister despite his defeat in the election. The repelling was held at polling booth No. 66-A, Village Danewala of the aforesaid Constituency on false pleas raised by Sh. Balwinder Singh Bhundar who even after repoll suffered his defeat and was using the same now through the petition to challenge the election of the respondent Ajit Inder Singh.

8. Petitioner Nand Singh filed replication regarding the averments made in the written statement filed by the respondent. In the replication the averments made in the election petition were reiterated and the averments made in the written statement of the respondent were denied. On the pleadings of the parties, the following issues were framed :

1. Whether the Election Agent of the respondent Ajit Inder Singh and other persons mentioned in the Election Petition with the consent of the returned candidate and his Election Agent committed corrupt practice of Booth Capturing? If so, its effect? (OPP).

2. To what relief, if any, is the petitioner entitled?

FINDINGS

Issue No. 1

9. Petitioner Nand Singh examined himself as P.W. 1 and produced Shamsher Singh P.W. 5 Polling Officer deputed at polling booth No. 66-A, village Danewala, District Mansa, Anil Kumar P.W. 6, Polling Officer deputed at the said polling booth, Milkha Sigh P.W. 7, a voter from village Danewala, Harmel Singh P.W. 8, another voter from village Danewala and Sarpanch of the said village to give the eyewitness account of the allegations of booth capturing on the date of polling at the above said polling booth. Apart from these eye-witnesses, the petitioner examined Rameshwar Dayal Sharma P.W. 2, Tehsildar Elections of the Election Office, District Mansa who brought with

him the record pertaining to polling station of village. Danewala which was marked as Exhibit P.W. 2/A. The other witness examined by the petitioner is Amarjit Singh Dhindsa P.W. 2, Administrative Officer, Office of Director, Health Services, Punjab, Chandigarh who was appointed Returning Officer for the Constituency. He was examined about the report of the Presiding Officer of polling booth No. 66-A regarding booth capturing by about 7-8 persons between 4.00 p.m. and 4.15 p.m. He had conveyed about this incident to the District Election Officer/Deputy Commissioner in his camp office and was accompanied by the Presiding Officer of the said polling booth. He deposed about the District Election Officer/Deputy Commissioner, Mansa sending a letter containing the information of booth capturing to the Chief Electoral Officer, Punjab, Chandigarh. He also proved the report sent to the Chief Election Commissioner at Delhi as Exhibit P.W. 3/A. He also proved the report sent to the Chief Electoral Officer, Punjab as P.W. 3/B. Hardevinder Singh SHO was examined as P.W. 4 to prove the lodging of the First Information Report No. 9 of 8-2-1997, under Sections 353, 186, 188, 336, 506, 148 and 149 of the Indian Penal Code and Sections 25 and 27 of the Arms Act besides Section 135-A of the Act 1951 at Police Station Jhuneer. He stated that the first information report aforesaid was got registered by Shri Sukhjiwan Singh, the Presiding Officer of the said polling booth of village Danewala, District Mansa of the Constituency. FIR was registered by Shri Amolak Singh working as SHO at that time at Police Station Jhuneer and was ascribed by MHC Harpal Singh. He stated about the investigation of the case being completed and challan ready to be submitted before the concerned Magistrate after its approval by the Public Prosecutor. Shri Bholla Singh P.W. 9, Clerk of the Office of Shri J. S. Kang, Judicial Magistrate 1st Class, Mansa was examined to prove that challan had been submitted by the Investigating Officer in FIR No. 9 dated 8-2-1997 of Police Station Jhuneer aforesaid on 28-10-1997. He filed copy of challan as Exhibit P.W. 9/A. The petitioner examined Inspector Amolak Singh, CIA Staff, Faridkot as P.W. 10 in whose presence FIR No. 9 aforesaid was registered at Police Station Jhuneer and was recorded by MHC Harpal Singh. According to the statement of Inspector Amolak Singh, FIR aforesaid was registered on the basis of the statement of Sukhjinder Singh, Presiding Officer of polling booth No. 66-A of village Danewala and was recorded by him. The FIR was recorded from 2.20 a.m. up to 3.20 a.m. on 8-2-1997. He proved copy of FIR Exhibit P.W. 10/A. He had recorded the statement of Sukhjinder Singh, Presiding Officer aforesaid. He placed on record copy of the statement of Sukhjinder Singh Exhibit P.W. 10/B. He visited the place of occurrence i.e. booth No. 66-A on 8-2-1997 in village Danewala and found one empty cartridge lying on the Kutcha path outside the gate of the school at a distance of one karam from the gate of the school and took the same in police possession in the presence of witnesses and prepared a recovery memo which was marked P.W. 10/C. He arrested accused Karan Singh, Darshan Singh and Bikkar Singh on 8-2-1997 and made enquiries from them and brought them to the Police Station Jhuneer where they were lodged in police lockup. The empty cartridge recovered by him was duly sealed in a bundle at the spot and deposited in the Malkhana of the Police Station. The entry about its deposit as also regarding the arrest and lodging of accused Karam Singh, Darshan Singh and Bikkar Singh in the lock-up was made in the Daily Diary Register. The petitioner examined ASI Sukhdev Singh P.W. 11, at present posted at Police Station Boha, District Mansa and who at the relevant time (from 27-5-1996 to 10-5-1997) was posted as ASI at Police Station Jhuneer. He had investigated the case relating to the incident of booth capturing at polling booth 66-A at village Danewala at about 4.15 p.m. He arrested Viney Partap Singh, Constable Gurnam Singh and Balvinder Singh alias Phoji. He recovered one carbine of 9 MM and 5 live cartridges of 9 MM and two magazines of the said carbine from Constable Gurnam Singh. One mauzer of 30 bore was also recovered from Viney Partap Singh along with three live cartridges. Licence was also recovered from him along with the mauzer. He prepared recovery memo regarding the aforesaid recoveries and proved the same as Exhibit P.W. 11/A. The recovery memo regarding the recovery of mauzer was proved as P.W. 11/B. The petitioner sought time to produce Sukjiwan Singh, Presiding Officer of polling booth 66-A but later on gave him up on the ground that he was not in a fit mental position to depose.

10. Respondent Ajit Inder Singh examined Rameshwar Dayal Sharma, Tehsildar (Election), District Mansa as R.W. 1 who brought with him the forms of polling agents of all the candidates kept in a sealed cover by the Presiding Officer and filed the same in the Court which was marked ‘A’. He stated that the envelope which was brought and filed by him was sealed by the Presiding Officer at the polling station. The respondent examined Gurjit Singh R.W. 2 who was posted as Presiding Officer at Polling Station in village Moffar, District Mansa. He stated that the polling agents, as per forms which were before him, were Ranbir Singh and Darshan Singh. Respondent Ajit Inder Singh examined himself as R.W. 3 and produced Ujaggar Singh R.W. 4 who had worked as polling agent for another candidate named Sukhvinder Singh alias Sukhi set up by the Congress (I) Party in village Danewala. The other witness examined by the respondent is Darshan Singh R.W. 5 who worked as polling agent in village Danewala for the candidate of Communist Party of India, namely, Lal Chand. Gurlal Singh R.W. 6 is a voter of village Danewala and had gone to cast his vote in polling booth 66-A at about 3.00 p.m. Respondent has produced his election agent Shri Viney Partap Singh R.W. 7 against whom allegation has been made by the petitioner regarding the booth capturing at polling booth No. 66-A of village Danewala. This is the entire oral evidence produced by both the sides in respect of Issue No. 1.

11. Before dealing with the oral evidence of the petitioner it will be appropriate to refer to the various authorities cited by both the sides regarding the standard of proof of the allegation of booth capturing and corrupt practice adopted by the returned candidate.

12. Learned counsel for the petitioner relied on the case of Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, AIR 1985 SC24 wherein it has been held, inter alia in para 7 that :

“There is no ritualistic formula nor a cut-and-dried test to lay down as to how a charge of undue influence can be proved but if all the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either the candidate or his supporters or agents with his consent or with his agents consent that should be sufficient to vitiate the election of the returned candidate.”

It was further held in paras 8 and 9 as under :

“We would, however, like to add a word of caution regarding the nature of approach to be made in cases where allegations of fraud or undue influence are made. While insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process.

By and large, the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations :

(1) the nature, character, respectability and credibility of the evidence.

(2) the surrounding circumstances and the improbabilities appearing in the case.

(3) the slowness of the appellate Court to disturb a finding of fact arrived” at by the trial Court who had the initial advantage of observing the behaviour, character and demeanour of the witnesses appearing before it, and

(4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged.”

13. Learned counsel for the petitioner relied on a judgment of the Hon’ble Supreme Court in R. Puthunainar Alhithan v. P.H. Pandian, (1996) 3 SCC 624: (AIR 1996 SC 1599) wherein it was held in para 9, inter alia as under :

“It is true that the charge of corrupt practice under Section 123 is treated akin to a charge in a criminal trial. The trial of an election petition is like a trial in the criminal case and the burden to prove corrupt practice is on the election petitioner. The doctrine of preponderance of probabilities in a civil action is not extended for proof of corrupt practice. It is not, like a criminal trial, that the accused can always keep mum. In a criminal trial the accused need not lead any defence evidence. It is an optional one. The burden of proof of charge in a criminal case is always on the prosecution. The guilt of the accused beyond reasonable doubt should be established by the prosecution. But in an election petition when the election petitioner had adduced evidence to prove that the returned candidate had committed corrupt practice, the burden shifts on

the returned candidate to rebut the evidence. After its consideration, it is for the court to consider whether the election petitioner had proved the corrupt practice as alleged against the returned candidate.”

14. In P.C. Purushothama Reddiar v. S. Perumal, AIR 1972 SC 608 the Hon’ble Supreme Court held in para 11, inter alia, as under :

“It is true that in election cases oral evidence has to be examined with great deal of care because of the partisan atmosphere continuing even after the election. But it will be wrong on the part of the Courts to just brush aside the oral evidence even when the evidence is highly probable and the same is corroborated by unimpeachable documentary evidence………..”

15. Learned counsel for the respondent relied on Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, (1995) 5 JT (SC) 410 : (AIR 1995 SC 2284), wherein the Hon’ble Apex Court discussed the approach of the Court in dealing with the charge of corrupt practice and evidence relating thereto observed in para 13 as under :

“Though the election of successful candidate is not to be interfered with lightly and the verdict of the electorate upset, this Court has emphasised in more than one case that one of the essentials of the election law is to safeguard the purity of the election process and to see that people do not get elected by flagrant breaches of the law or by committing corrupt practices. It must be remembered that an election petition is not a matter in which the only persons interested are the candidates who fought the election against each other. The public is also substantially interested in it and it is so because election is an essential part of a democratic process. It is equally well settled by this Court and necessary to bear in mind that a charge of corrupt practice is in the nature of a quasi-criminal charge, as its consequence is not only to render the election of the returned candidate void but in some cases even to impose upon him a disqualification for contesting even the next election. The evidence led in support of the corrupt practice must therefore, not only be cogent and definite but if the election petitioner has to succeed, he must establish definitely and to the satisfaction of the Court the charge of corrupt practice which he levels against the returned candidate. The onus lies heavily on the election petitioner to establish the charge of corrupt practice and in case of doubt the benefit goes to the returned candidate. In the case of an election petition, based on allegations of commission of corrupt practice, the standard of proof is generally speaking that of criminal trials, which requires strict proof of the charge beyond a reasonable doubt and the burden of proof is on the petitioner and the burden does not shift.”

16. In S. Baldev Singh Mann v. S. Gurcharan Singh MLA, (1996) 1 JT (SC) 692 : (AIR 1996 SC 1109) the Hon’ble Supreme Court considered the case of alleged booth capturing. The Hon’ble Supreme Court held that the Court should insist on strict proof of corrupt practice under Sub-sections (1) to (8) of Section 123 of the Representation of the People Act as the same are quasi-criminal in nature. It will be useful to refer to the observations made by the Hon’ble Apex Court on this point contained in para 8, which reads as under :

“It is well settled that an allegation of corrupt practices within the meaning of Sub-sections (1) to (8) of Section 123 of the Act, made in the election petition are regarded quasi-criminal in nature requiring a strict proof of the same because the consequences are not only very serious but also penal in nature. It may be pointed out that on the proof of any of the corrupt practices as alleged in the election petition it is not only the election of the returned candidate which is declared void and set aside but besides the disqualifications of the returned candidate, the candidate himself or his agent or any other person as the case may be, if found to have committed corrupt practice may be punished with imprisonment under Section 135-A of the Act. It is for these reasons that the Court insists upon a strict proof of such allegation of corrupt practice and not to decide the case on preponderance or probabilities. The evidence has, therefore, to be judged having regard to these well settled principles.”

17. In Quamarul Islam v. S.K. Kanta, (1994) 1 JT (SC) 452 : (AIR 1994 SC 1733) while dealing with the practice and procedure regarding the pleadings and evidence to be led in support of the election petition, the Hon’ble Supreme Court laid down the tests and principles in para 24 (of SCC): (para 23 of AIR) as under :

“In Laxmi Narayan Nayak v. Ramratan Chaturvedi, (1990) 2 SCC 173 : (AIR 1991 SC

2001) after dealing with a catena of authorities, regarding the nature of pleadings and evidence to be led in support thereof in election petition, a Division Bench of this Court to which one of us, namely Pandian J., was a party, formulated some essential tests with regard to the nature of pleading and evidence in an election petition. It is useful to extract the principles laid down therein. They are as follows (at p. 2003 of AIR) :

“(1) The pleadings of the election petitioners in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (AIR 1987 SC 1577) and Kona Prabhakara Rao v. M. Seshagiri Rao (AIR 1981 SC 658).

(2) The allegations in the election petition should not be 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 (AIR 1973 SC 2158), Kona Prabhakara Rao v. M. Seshagiri Rao (AIR 1981 SC 658) and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, (AIR 1987 SC 1577).

(3) The evidence adduced in support of the pleadings 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 Jamuna Prasad Mukariya v. Lachhi Ram (AIR 1954 SC 686) and Rahim Khan v. Khurshid Ahmed (AIR 1975 SC 290).

(4) 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 Muneshwar Nath Singh (AIR 1975 SC 24).

(5) It is unsafe in an election case to accept oral evidence at its face value without looking for assurance for some surer circumstances or unimpeachable documents vide Rahim Khan v. Khrshid Ahmed (AIR 1975 SC 290), M. Narayana Rao v. Venkata Reddy (AIR 1977 SC 208), Lakshmi Raman Acharya v. Chandan Singh (AIR 1977 SC 587) and Ramji Prasad Singh v. Ram Bilas Jha (AIR 1976 SC 2573).

(6) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded vide Rahim Khan v. Khurshid Ahmed, Mohan Singh v. Bhanwarlal (AIR 1964 SC 1366) and Ramji Prasad Singh v. Ram Bilas Jha.”

18. In Om Prabha Jain v. Charan Das, 1975 Supp SCR 107 : (AIR 1975 SC 1417) the Hon’ble Apex Court held that (at p. 1428 of AIR):

“We cannot forget that, if a charge of a corrupt practice, as an electoral offence, is held to have been established against a candidate, it may have grave repercussions on his reputation and political future. Therefore, prudence requires that we should apply the stricter standard of proof of a criminal charge in such a case and not decide the case on a bare balance of probabilities.”

19. It will appear from the above cited authorities that the burden of proving the allegations of corrupt practice is primarily and basically on the election petitioner. The election petitioner is required to lead cogent and definite evidence regarding the allegations of corrupt practice said to have been committed by the returned candidate. The onus lies heavily on the election petitioner to establish the charge of corrupt practice. However, it is equally settled that once the election petitioner adduced a cogent and reliable evidence in support of his allegations, the onus would shift on the returned candidate to rebut the evidence. In the light of this settled position of law, the evidence of the petitioner is to be seen and scrutinized.

20. Petitioner Nand Singh gave the following version in this regard in his examination-in-Chief :

21. On the date of polling i.e. on 7-2-1997 he was present at Government Primary School, Danewala where polling booth Nos. 66 and 66-A were located. At about 4.15 p.m. a vehicle (Tata-Sumo) arrived outside the building of Government Primary School and stopped there. Six persons got down from the said vehicle. He stated the names of Viney Partap Singh, Guri alias Gurpreet, Sukhwinder Singh and Baljinder Singh. The remaining two persons were stated to be the bodyguards. Viney Partap Singh, Guri, Sukhvinder Singh and Baljinder Singh entered polling booth 66-A while the two bodyguards remained standing outside the building. These four persons, who entered the polling booth, forcibly captured the votes. Three polling agents, namely, Karam Singh of the candidate of Shiromani Akali Dal (Mann Group), Binder Singh of the candidate of the congress party and Darshan Singh of the candidate of the Communist (Marxist) Party also joined the aforesaid four persons in booth capturing. Viney Partap Singh was armed with a revolver and he resorted to firing in the air. The police force posted at the polling booth challenged these persons who left the place in the same vehicle Tata-Sumo. Petitioner stated that these persons remained at the polling booth for about 10-15 minutes and left the place around 4.15 p.m. According to the statement of Nand Singh, Guri alias Gurpreet Singh was resident of village Makhewal while Viney Partap Singh was resident of village Abal Khurana. He stated that Viney Partap Singh was the son of the sister of respondent Ajit Inder Singh.

22. In cross-examination Nand Singh stated about his knowing the six persons who travelled in Tata-Sumo on the date of occurrence and indulged in booth capturing. He stated that he knew them by their names but had no social relations with them. Later on, he stated in his cross-examination that he did not know the gunmen who had accompanied the aforesaid four persons who had indulged in booth capturing. It was after the incident that he came to know about the names, parentage and residence of the two bodyguards accompanying Viney Partap Singh from Inspector Amolak Singh of Police Station Jhuneer. He categorically denied the suggestion put to him on behalf of the respondent that he did not know any of the aforesaid six persons. He denied suggestion that these persons did not indulge in booth capturing.

23. Learned counsel for the respondent submitted that petitioner Nand Singh was in fact not present at the time of the alleged incident of booth capturing. He also contended that the petitioner has not mentioned either in the petition or in his statement about the time of his visit to the polling booth for casting his vote and the time up to which he remained there before returning to his home. He also criticised the evidence of the petitioner on the ground that he was not an independent witness and was in fact set up by Shri Balwinder Singh Bhundar of Shiromani Akali Dal (Badal Group) who lost the election to the returned candidate i.e. the respondent Ajit Inder Singh. It was pointed out by the learned counsel for the respondent that the petitioner did not state about his being Numberdar of village Danewala either in the petition or in his statement. According to the submission of the learned Counsel for the respondent, petitioner Nand Singh had no occasion of knowing Shri Viney Partap Singh, the nephew of respondent Ajit Inder Singh who is alleged to have indulged in booth capturing at polling booth 66-A of village Danewala and for that matter petitioner did not know from before the other persons who had said to have accompanied Viney Partap Singh. So far as the aforesaid submissions of the learned Counsel for the respondent are concerned, they have considerable merit. A careful perusal of the averments made in the petition will go to show that the petitioner described himself to be a voter at polling booth 66. In the petition he did not state the time of his visit to polling booth 66 for casting his vote. There are no averments made in the petition that the petitioner remained present at the polling booth till the said incident took place. However, it has been mentioned in para 4(ii) that at about 4.00 p.m. while the polling was going on, the said incident took place in which Viney Partap Singh, election agent of the respondent accompanied by Gurpreet Singh alias Guri, Balvinder Singh son of Surjit Singh and Sukhvinder Singh son of Bant Singh along with two gunmen, namely, Gurnam Singh and Balvinder Singh son of Puran Singh, residents of Ratta Khera arrived in a Tata-Sumo vehicle having no number and indulged in booth capturing at polling booth 66-A. There is no categorical and specific mention of the fact that the petitioner himself was present there at the time of the alleged booth capturing. It is also relevant to note that in the election petition the petitioner did not specifically allege about his personally knowing Viney Partap Singh and his companions named above. In the verification clause appended at the bottom of the petition the averments made in the paragraphs 1, 2, 3, 4, 4(i), 4(ii), 4(iii), 5, 6, 7 to 12 were verified as true and correct to his personal knowledge. It was declared that no part of it was false and nothing material had been concealed therefrom. Apart from it, petitioner Nand Singh filed his affidavit along with the election petition wherein he made the same solemn affirmation

about the statement made in paragraphs 4, 4(i), 4(ii), 4(iii), 5, 6, 7 and 8 and regarding the particulars of corrupt practice mentioned in paras 4, 4(i), 4(ii), 4(iii), 5, 6, 7 and 8.

24. So far as the evidence of petitioner Nand Singh is concerned, in his examination-in-Chief he did not state about his going to the polling booth in village Danewala for casting his vote and about his being present there till the time the said occurrence took place. He did not state about his entering the polling booth 66-A after Viney Partap Singh and his companions had entered the polling booth and about his witnessing the incident himself. Regarding the identity of these persons he stated towards the end of his examination-in-chief that Guri alias Gurpreet Singh was resident of village Makhewal and Viney Partap Singh was resident of village Abal Khurana. He also stated that Viney Partap Singh was the son of the sister of Ajit Inder Singh Moffar. In his cross-examination he stated that he could not tell the distance between villages Abal Khurana and Danewala being about 200 kilometers. According to his statement Guri, Baljinder Singh and Sukhwinder Singh were not resident of village Danewala. He further stated that he was not working as a polling agent or an election agent for Shri Balwinder Singh Bhundar in this election. He stated that he did not know the two gunmen who had accompanied Viney Partap Singh when the said incident took place. According to his statement it was after the incident that he learnt the names of these two gunmen from Inspector Amolak Singh of Police Station Jhuneer. On further cross-examination he stated that he mentioned the names of two gunmen after their names were disclosed to him by Inspector Amolak Singh although he had seen them even prior to their accompanying Viney Partap Singh.

25. Amolak Singh P.W. 10 has in his cross-examination denied about his meeting the petitioner Nand Singh. He has also stated that he did not summon the Sarpanch, Chowkidar or any other responsible person from village Danewala and did not go to the houses of these persons. The petitioner denied the suggestion put to him on behalf of the respondent that he was not present at the time when the said incident took place at the polling booth and he did not see or witness any such incident. He also denied the suggestion that he made a wrong verification of the election petition and the affidavit annexed therewith knowing the facts verified to be false. He stated that it was wrong to suggest that he had been set up by Shri Balwinder Singh Bhundar being his party-man to file the election petition. It is noteworthy that the petitioner during the period front 7-2-1997 up to 22-3-1997 i.e. during the period intervening between the date of polling and the date on which the election petition was filed he had discussed about the allegations made in the election petition with his witnesses but he did not lodge any report about the incident nor mentioned these facts before any authority such as Deputy Commissioner, Chief Election Officer, Senior Superintendent of Police, Sub-Divisional Magistrate or any other officer. According to his statement, the six persons who indulged in booth capturing were known to him by their names although they were not related to him. He stated that he knew these persons but had no social relations with them. It will appear from the statement of the petitioner that he did not have any social relationship with the aforesaid six persons including Viney Partap Singh. All these persons are not residents of village Danewala. Nand Singh petitioner has not given any cogent reasons for his knowing Viney Partap Singh and the persons accompanying him at the time of the said incident. Under these circumstances, it is difficult to believe that the petitioner in fact knew Viney Partap Singh, Gurpreet Singh and Balwinder Singh at the time when the alleged incident is said to have taken place. This is further corroborated from the fact that Nand Singh did not disclose to the election staff about the identity of these persons allegedly indulging in booth capturing. There is no mention of the names of these persons in the FIR and in the Presiding Officers’ Diary.

26. The next witness examined by the petitioner is Shamsher Singh P.W. 5 who was posted as a Polling Officer at polling booth No. 66-A of village Danewala on the date of polling in the said election. The other witness Anil Kumar P.W. 6 was also a Polling Officer deputed to work at polling booth 66-A on the aforesaid date of polling. Apart from these two Polling Officers the petitioner examined Milkha Singh P.W. 7 who is resident of village Danewala and is a voter from that village. He was also appointed polling agent by the candidate set up by Akali Dal (Badal Group) at polling booth 66-A. The last witness of this incident produced by the petitioner is Harmel Singh P.W. 8, a voter from village Danewala and also a Sarpanch of the said village. While Shamsher Singh P.W. 5, Anil Kumar P.W. 6 and Milkha Singh P.W. 7 were present inside the polling booth 66-A, Harmel Singh P.W. 8 was shown as present outside the polling booth. Milkha Singh was the polling agent of S. Balwinder Singh Bhundar who contested the election from SAD (Badal Group) and lost the same.

27. Shamsher Singh PW 5, Anil Kumar PW 6 and Milkha Singh PW 7 gave the following version of the said incident:

Shamsher Singh stated that at about 4.00 p.m. four persons made their entry inside the polling booth. One of them was with a pistol and was being addressed as Bhanja of respondent Ajit Inder Singh Moffar. He saw the said Bhanja of the respondent taking 89 ballot papers from the possession of the Presiding Officer and handed over the same to a person who was being called as Guri and asked Guri to mark the ballot papers and put them inside the ballot box. Thereafter, these 89 ballot papers were duly marked with the seal against the symbol of ‘Sun’ and put them into the ballot box. Shamsher Singh stated categorically that it was Guri who had removed 89 ballot papers from the respective counter-foils by one stroke, by putting his shoe on the copy. The polling agents present at the polling booth excepting the polling agent of Akali Dal (Badal Group) assisted these persons in folding the ballot papers and putting the same inside the ballot box through the slit. These three polling agents were thumb marking and putting their signatures on the counter-foils of the said 89 ballot papers. Shamsher Singh stated that thereafter these four persons left the polling booth.

28. Anil Kumar PW 6 stated that at about 4.00 past some minutes in the evening about six persons came to the polling booth. Out of them two remained standing outside the polling booth and the remaining four entered inside the polling booth. One of these four persons was armed with a revolver and he went near the Presiding Officer and forcibly took the book containing ballot papers. The other three persons marked the ballot papers with the rubber stamp against the election symbol of ‘Sun’. According to his statement in all 89 ballot papers were left in the book which contained a total of 100 ballot papers as 11 ballot papers had already been used in the election process for casting votes by the voters. These remaining 89 ballot papers did not have the signatures of the Presiding Officer of the polling station on the reverse side and had been taken out of the book by tearing them in one stroke. The polling agents of Akali Dal (Mann Group), Congress and Communist parties were asked to affix thumb impressions/signatures on the respective counter-foils of the said 89 ballot papers. These 89 ballot papers were then pushed inside the ballot box through the slit and thereafter the aforesaid four persons left the polling booth and soon thereafter he heard the sound of firing.

29. Milkha Singh PW 7 stated that on the day of polling, the polling was peaceful till 4.00 p.m. Thereafter Viney Partap Singh who is real Bhanja of respondent Ajit Inder Singh Moffar and who was also appointed as election agent by Shri Moffar came on polling booth 66-A and was accompanied by Gurpreet Singh alias Guri, Sukhminder Singh and Baljinder Singh. Apart from these four persons there were two gunmen who stood outside the polling station. Viney Partap Singh was armed with a revolver which he pointed out towards the Presiding Officer Sukhjivan Singh and took the copy of the ballot papers and handed over the same to Gurpreet Singh alias Guri. These ballot papers were marked with the seal against the election symbol of ‘Sun’. He further stated that Gurpreet Singh alias Guri, Sukhminder Singh and Baljinder Singh asked the polling Officers to vacate their chairs and they occupied the chairs vacated by the polling officers. After the ballot papers were duly marked with the seal, the same were pushed inside the ballot box through the slit. The polling agents of Communist party, namely, Darshan Singh, Karam Singh, polling agents of Akali Dal (Mann Group) and Bindar Singh, polling agent of Congress Party affixed their thumb impression on the counter-foils of the said ballot papers. All this incident happened within 10 to 20 minutes. After committing the occurrence as aforesaid these four persons led by Vinay Partap Singh left the polling booth 66-A and they started to go towards the polling booth 66. When the police force of Madhya Pradesh challenged them, they accompanied by the two guards left the place in their vehicle Tata Sumo. He further stated that Viney Partap Singh fired shot in the air and shouted slogans before leaving the place. Milkha Singh stated that the petitioner Nand Singh was Nambardar of village Danewala. According to them, some of the residents of village had in the meantime collected outside the polling booth amongst who he had seen Amrik Singh and Bhagera Singh.

30. Harmel Singh PW 8, who was present outside the polling booth 66-A at the time of the said incident, gave the following version of the incident :

At about 4.00 p.m. he was sitting at the door of polling booth 66-A and was facing towards outside, he saw a Tata Sumo vehicle stopping outside the polling booth. He also saw six persons getting down from the said vehicle. Two of these persons were Viney Partap Singh and Gurpreet Singh alias Guri. Two were body guards of Viney Partap Singh and the remaining two were the men of Ajit Inder Singh Moffar. The two body guards of Viney Partap Singh stood outside the polling booth and did not allow any person to enter the polling booth 66-A. They did not allow any person to come out of the said polling booth. Viney Partap Singh was the election agent of Ajit Inder Singh and was his real nephew (Bhanja). Viney Partap Singh was armed with a pistol which he showed to the Presiding Officer and took away the ballot papers at the pistol point from the Presiding Officer. Viney Partap Singh handed over the ballot papers aforesaid to Guri and asked him to affix the seal against the election symbol of ‘Sun’. Accordingly Guri marked the ballot papers with the seal against the said election symbol of ‘Sun’. Thereafter, the ballot papers were handed over to the three polling agents, namely, Darshan Singh of Communist Party, Karam Singh of Akali Dal (Mann Group) and Binder Singh of Congress Party who dropped the ballot papers inside the ballot box. The three polling agents aforesaid i.e. Darshan Singh, Karam Singh and Binder Singh marked their thumb impressions on the counter-foils of the ballot papers. This incident took place for about 10 to 15 minutes. He stated that thereafter these persons made an attempt to force their entry inside the polling booth 66 but they were prevented by the Madhya Pradesh Police which was deputed in the building in which the two polling booths were located. The Madhya Pradesh persons challenged these persons who left the place in the said Tata Sumo vehicle. He also stated that Viney Partap Singh had fired a shot from the pistol in the air before leaving the said place. After this incident the polling party wound up the proceedings and left for Mansa by a vehicle along with the election material and the ballot boxes at about 4.45 p.m. He also returned to his house.

31. It will appear from the statements of these witnesses examined by the petitioner that four persons had entered the polling booth and they indulged in booth capturing by forcibly snatching the 89 ballot papers and after marking the ballot papers against the election symbol of ‘Sun’ which had been allotted to the respondent candidate Shri Ajit Inder Singh Moffar and pushed them inside the ballot box through the slit. The incident was committed in about 10 to 20 minutes. Out of these four witnesses, Milkha Singh and Harmel Singh specifically mentioned the names of Viney Partap Singh and Gurpreet Singh alias Guri while Milkha Singh mentioned the names of all the four persons i.e. Viney Partap Singh, Guri, Sukhminder Singh and Baljinder Singh. Harmal Singh PW 8 mentioned the names of Viney Partap Singh and Guri and did not mention the names of the remaining two persons who had entered the polling booth along with Viney Partap Singh and Guri. The statements of these witnesses would, thus, show that they had clearly seen and identified Viney Partap Singh and Gurpreet Singh alias Guri. These witnesses Milkha Singh and Harmal Singh remained present with the polling staff till they left for Mansa. In the normal course of events, these witnesses Milkha Singh and Harmel Singh were expected to tell the names of these four persons and particularly the names of Viney Partap Singh and Gurpreet Singh to the polling staff. Milkha Singh, who was polling agent for the candidate of Akali Dal (Badal Group), would have told to the election staff the names of all the four persons as he had known and identified them at the time of the incident. However, the FIR which was lodged in this case by the Presiding Officer Sukhjivan Singh did not mention the name of Viney Partap Singh. Petitioner Nand Singh has extracted in the petition the contends of the FIR in para 5 of the election petition. The relevant portion of the FIR reads as under:

“…………During this period four persons with plain clothes and two persons in police uniform entered into the polling booth. Out of them one

was being called Gurry of village Makhewala and the another of them was being called, as nephew (sister’s son) of Ajit Inder Singh whose village is Abul Khurana. Out of them, the description of another is aged about 30-35 years, open beard, having hair on heard, fair complexion, medium height and he was wearing white shirt and trouser and had tied coca-cola colour turban. The description of fourth was as : slim body, was wearing white shirt pajama and white turban, whitish complexion, tied beard. Both the persons in uniform were being called as gunmen of nephew (sister’s son) of Ajit Inder Singh Moffar, the candidate………..”

32. The FIR was registered at Serial No. 9 dated 8-2-1997 at Police Station Jhuneer on the statement of the Presiding Officer Sukhjivan Singh son of Sukhjit Singh, Village Danewala, booth No. 66-A, West Side, 117-Sardulgarh Assembly Constituency, aged about 40 years.

33. Here it may be mentioned that the petitioner did not examine the Presiding Officer Sukhjivan Singh aforesaid who was given up despite being summoned in the case on the ground that his mental condition was not proper. Learned counsel for the respondent pointed out towards the report on the summons issued to the said witness Sukhjivan Singh, Presiding Officer. Learned counsel further pointed out that one Shri Dalip Singh, Advocate had signed the report of service of summons on the Presiding Officer Sukhjivan Singh and stated at bar that Shri Dalip Singh, Advocate was the election agent of Balwinder Singh Bhundar, a candidate of Akali Dal (Badal Group) who had lost the election to the respondent Ajit Inder Singh. A perusal of the order sheet dated 14-12-1998 will go to show that learned counsel for the petitioner did not produce the said witness i.e. the Presiding Officer of polling booth 66-A on account of his non-availability due to medical grounds. Learned counsel for the respondent pointed out to the report of the process-server on the summons issued to the witness Shri Sukhjivan Singh son of Sukhjit Singh (Presiding Officer), paper No. 92 of the file, wherein the witness himself made a note of his mental condition. The note is appended in Punjabi vernacular, which on translation in English reads as under :

“I am not in a position to give evidence. I am under treatment for the last one year.

Sd/-        

Sukhjivan Singh   

Son of Sukhjit Singh.”

This service was effected on 7-12-1998. It has been signed by an Advocate, namely, Shri Dalip Singh.

34. Learned counsel for me respondent pointed out that on some of the dates the said witness Sukhjivan Singh had attended this Court but then he was not examined. A perusal of the order sheet dated 10-10-1997 will go to show that Shri Sukhjivan Singh aforesaid was present in Court. The first version of the occurrence reported in the FIR could be proved by Sukhjivan Singh, Presiding Officer the informant. In the absence of the Presiding Officer Sukhjivan Singh, the petitioner relied on the statement of the polling Officer Shamsher Singh PW 5. It will appear from the statement of Shamsher Singh that the FIR regarding this occurrence was written at Nehru Memorial College, Mansa after the election material Was deposited with the authorities. This statement is to be found at internal page 11 of the statement of Shamsher Singh PW 5. On the same day earlier he stated that the Presiding Officer’s Diary was filled at about 11.00 p.m. at the said Nehru Memorial College, Mansa. He, however, did not state about the time when the FIR was written. The other polling officer Anil Kumar who had also accompanied the polling party to the said College stated towards the and of his examination-in-Chief about the FIR being lodged in respect of the said occurrence at the said College. In his cross-examination, he stated at internal page 5 of his statement that the complaint was lodged after 12.00 midnight. He further stated that the election material had been got deposited by them around 11.00 p.m. He also stated that he did not write the complaint and did not remember about the persons who scribed the same. He was unware of the fact that who had called the police but knew that the police came to the room where they sat and their statements had been recorded by the police in the said room. Hardevinder Singh PW 4 was working as SHO, Police Station Jhuneer when FIR No. 9 dated 8-2-1997 was registered in respect of the said occurrence under Sections 353, 186, 188, 336, 506, 148 and 149 of the Indian Penal Code, Sections 25 and 27/54/59 of the Arms Act and Section 135-A of the Representation of People Act. He stated that this FIR was got registered by Sukhjivan Singh son of Sukhjit Singh of polling booth 66-A of village Danewala aforesaid. He also stated that the FIR was registered by Shri Amolak Singh working as SHO at Police Station Jhuneer at that time and was scribed by MHC Harpal Singh. Inspector Amolak Singh PW 10 stated that the said FIR was recorded by MHC which was registered on the basis of the statement of Sukhjivan Singh, Presiding Officer of polling booth 66-A of village Danewala and was recorded by him. He stated that the FIR was registered and it commenced being registered at 2.20 a.m. and the recording of it finished at 3.20 a.m. on 8-2-1997. The FIR regarding the incident aforesaid was, thus, recorded between 2.20 a.m. and 3.20 a.m. in the night intervening 7/8-2-1997. This is relevant inasmuch as by this time the polling staff did not know the same of Viney Partap Singh, the nephew of respondent Ajit Inder Singh Moffar. If the polling staff including the Presiding Officer Sukhjivan Singh had known the names of all the four miscreants who indulged in booth capturing soon after the incident was commenced and before they left the polling booth for Nehru Memorial College Mansa, the names of the culprits would have been mentioned in the FIR.

35. It is also significant to note that the entry made in the Presiding Officer’s Diary, Exhibit PW 2/A in Column No. 22(2) which is about the polling vitiated by the ballot papers having been unlawfully marked by any person and deposited in the ballot box initially written reads as under :

“At 4.05 minutes some armed persons entered and they snatched the ballot papers which did not have the signatures of the Presiding Officer and the seal of the polling station. These persons also snatched the seal of the polling station from the Presiding Officer and affixed the seal against the symbol of ‘Sun’ and pushed the ballot papers inside the ballot box. The Serial Numbers of these ballot papers are 060412 to 060500 i.e. 89 ballot papers..”

36. There was addition and over-writing in this entry and the time mentioned earlier was changed from 4.05 to from 4.00 to 4.15 and an entry was made about 7-8 persons between the words ‘some’ and ‘armed’. This entry was signed

by the Presiding Officer Sukjivan Singh who also attested the cutting in the entry. A note was appended at the foot of the said page in vernacular Punjabi which translated into English and reads as under :

Due to the aforesaid incident the polling party was under considerable mental tension and as such the report was submitted late around 11.00 p.m.”

There are signatures of Sukhjivan Singh and Shamsher Singh. Shamsher Singh PW 5 stated at internal page 3 of his statement as under :

“In the Presiding Officer’s Diary, which is before me, the entries made in Punjabi vernacular are in my hand-writing, which I verify. The Presiding Officer Shri Sukhjivan Singh had put his signatures at the bottom of the incident entered on internal page 3 of the Presiding Officer Diary, which I verify.”

He further stated that a note was appended at the bottom of the page by the Presiding Officer Sukhjivan Singh which was also signed by him.

37. In his cross-examination at internal page 10 Shamsher Singh PW 5 admitted that the Presiding Officer’s diary is required to be filled by the Presiding Officer himself and not by the polling officer. He, however, stated that the Presiding Officer was frightened and was unable to fill the diary regarding this incident and as such, it was at his instance that he wrote about it and it was signed by the Presiding Officer. He admitted about some cuttings made in the entry of the Presiding Officer’s diary. He further stated that the said note at the bottom of the page was appended in the Presiding Officer’s diary about the late submission of the election material, on the asking of the Returning Officer. He clarified that the entry made against Column No. 22 the endorsement was scribed by him at the instance of the Presiding Officer who had signed the same. On further cross-examination he specifically said “………… It is correct to say that at the
bottom of page 3 of the diary, signatures of Sukhjivan Singh and Shamsher Singh, that is, myself, are written by one and the same person ………”. He, however, denied the suggestion that
the entry in the Presiding Officer’s diary was made on 8-2-1997. He was further examined regarding the cuttings and additions made in Column 22(2) in the Presiding Officer’s diary when he stated at internal page 11 of the statement”………. In column 22(2) cutting and addition was made at about 11.00 p.m. on 7-2-1997 when the note at the bottom of internal page 3 aforesaid was appended. This addition was made at the instance of the Returning Officer who had specifically asked to disclose the number of persons and that is why it was made specifically. In the endorsement made at the bottom of page 3 of the diary it has been correctly mentioned that the diary has been submitted after filling the same at 11.00 p.m………..,” The witness on further cross-examination stated, that it was wrong to suggest that the Presiding Officer’s diary was filled subsequent to the lodging of the FIR. He also denied the suggestion that S. Balwinder Singh Bhundar and Milkha Singh came at Nehru Memorial College, Mansa and there the diary was filled as late as 11.00 p.m. From the statement of PW 5 it is abundantly clear that the entry about the incident aforesaid was made in the Presiding Officer’s diary by Shamsher Singh himself and the same was only signed by the Presiding Officer Sukhjivan Singh. Even a note which was made at the bottom of page 3 of the Presiding Officer’s diary the time of submission of the election material i.e. 11.00 p.m. is made after over-writing and as per the statement of Shamsher Singh, the signatures of Sukhjivan Singh and he himself were written by one and the same person. It indicates that both the names i.e. the name of Sukhjivan Singh and the name of Shamsher Singh were written by one and the same person. The manner in which the entries were recorded in Column 22(2) of the Presiding Officer’s diary and at the bottom of the same page leaves no room for doubt that there was something fishy about the whole affair. If the initial entry made against Column 22(2) is perused, then there is no mention of the number of persons who had entered the polling booth in the said incident. The statement of Shamsher Singh PW 5 shows that the Returning Officer had asked about mentioning of the number of persons who had entered the polling booth in the incident and then that number was disclosed by addition and cutting. However, the Returning Officer Amarjit Singh Dhindsa PW 3 did not state about asking the polling party of polling booth 66-A to specifically mention in the Presiding Officer’s Diary about the number of persons who had entered the polling booth 66-A for booth capturing and further that the election material was being deposited around

11.00 p.m. In this way, the statement of Shamsher Singh PW 5 to the contrary is materially contradicted. Even the number which was mentioned by way of addition in the endorsement, it was mentioned as 7-8 armed persons. The words ‘7-8 persons’ are mentioned in a bracket outside of which it has been mentioned as armed with weapons. This endorsement even after addition and correction showed that 7-8 armed persons had entered the polling booth and they indulged in booth capturing whereas the evidence led by the petitioner shows that out of the four persons who actually entered the polling booth 66-A, only one of them whose name was described to be Viney Partap Singh had a fire arm and the remaining persons were empty handed. It also emerges from the entries made in Presiding Officer’s diary and also from the statement of Shamsher Singh PW 5 that in all prohibilities the polling staff did not know the names of the culprits who had entered in the polling booth 66-A and had indulged in booth capturing. Even in the FIR, which according to the statement of Inspector Amolak Singh PW 10, was written between 2.20 a.m. to 3.20 a.m. in the night intervening 7/8- 2-1997 the names of the miscreants were not specifically mentioned excepting Guri. It is difficult to believe that the persons who made their forcible entry at about 4.00 p.m. at polling booth 66-A for booth capturing would take the name of their leader as the Bhanja of Ajit Inder Singh Moffar and not by his own name of Viney Partap Singh. Shamsher Singh PW 5 has taken a prominent role in this matter inasmuch as he is the person who, according to his own claim, filled the Presiding Officer’s diary though at the request of the Presiding Officer Sukhjivan Singh. This witness PW 5 is a J.B.T. Teacher and is a resident of village Raipur, Police Station Jorkian, District Mansa. He had already rendered about 19 years of service as a teacher and had been posted at Government Primary School, Raipur which is situated within the limits of Sardulgarh Assembly Constituency where he had spent about 12 1/2 years of service continuously (vide para 1 of his cross-examination). Shamsher Singh PW 5 knew the defeated candidate S. Balwinder Singh Bhundar and claimed to have known the other candidates contesting the elections. The father of Shamsher Singh also retired from Government service who was working as a Mate in the Irrigation Department. He was cross-examined at great

length on behalf of the respondent to show that he was under obligation of S. Balwinder Singh Bhundar but the same was not admitted by the witness. He also denied the suggestion that S. Balwinder Singh Bhundar had got him appointed as a teacher. According to his statement he did not know that the father of the respondent Ajit Inder Singh was also M.L.A. in the State of Punjab. He, however, stated that the village where the father of respondent Ajit Inder Singh resided, was situated at a distance of about 20 kms. from his village and claimed knowledge of the fact that after Shri Pritam Singh Moffar, father of Ajit Inder Singh Moffar respondent, S, Balwinder Singh Bhundar had been winning the election as MLA from Akali Dal. He also admitted his acquaintance with the petitioner Nand Singh and stated that he knew the petitioner Nand Singh because he was also a teacher and belonged to the same profession as his own. The suggestion made by the learned counsel for the respondent to the witness was that he had deposed falsely at the behest for S. Balwinder Singh Bhundar and in connivance with the petitioner Nand Singh.

38. Anil Kumar PW 6 had no acquisition with the Presiding Officer and other two polling officers. In his cross-examination done regarding the identity of the four persons who had entered the polling booth 66-A around 4.00 p.m. and indulged in booth capturing he stated that he did not know any of the aforesaid four persons. According to his statement when the booth capturing took place, the polling came to an end and thereafter they all packed their luggage and left for Mansa. His statement shows that at about 4.30 p.m. Supervisor had visited the polling booth and he was verbally told about the booth capturing by the Presiding Officer. However, he himself did not talk to the Supervisor. He stated that he stood quietly at the polling booth when the said four persons indulged in booth capturing. On further cross-examination he was unable to give details regarding the facts as to who had scribed the report regarding the incident and who had called the police. He, however, remembered that election material had been deposited around 11.00 p.m. He admitted the presence of the Senior Superintendent of Police in the room when the statement was recorded. On further cross-examination he stated that the names of the miscreants who indulged in booth capturing were mentioned

by the Presiding Officer of their polling booth. Thereafter, he volunteered to say that at about 4.30 p.m. the names of the miscreants were known and one of them was the Bhanja of Moffar, the respondent. He was, however, not aware of the fact if the Presiding Officer had mentioned in his diary the names of those four miscreants and stated that he had also not noted down their names anywhere. He stated that after the statements had been recorded by the Police, he was allowed to go home and the Presiding Officer was also permitted to leave for his house. The statements of these two polling officers PW 5 and PW 6 will go to show that they did not know the identity of the persons who are said to have indulged in booth capturing at polling booth 66-A. It appears that the identity of the nephew of the respondent Ajit Inder Singh was not disclosed to them till the entry was made in the Presiding Officer’s diary and even till the FIR was lodged with the Police.

39. Learned counsel for the respondent contended that the presence of petitioner Nand Singh, PW 1 Milkha Singh PW 7 and Harmel Singh PW 8 at the time of the alleged incident appears to be highly doubtful and at any rate it is difficult to believe that they had in fact witnessed any such incident. He further contended that Nand Singh petitioner was in fact a supporter of the defeated candidate S. Balwinder Singh Bhundar and he had filed the election petition at his behest, Milkha Singh PW 7, learned counsel for the respondent submitted, was the polling agent of S. Balwinder Singh Bhundar because he was acting as a polling agent for the candidate of the Akali Dal (Badal Group). S. Balwinder Singh Bhundar was contesting the election as a candidate of Akali Dal (Badal Group). Learned counsel for the respondent, thus, contended that the statement of Milkha Singh PW 7 should not be believed and relied upon as he is the person and supporter of S. Balwinder Singh who was defeated in the election by the respondent, a returned candidate Ajit Inder Singh Moffar. Harmel Singh PW 8 is the Sarpanch of village Danewala and his presence at the place of occurrence was not proved by any cogent evidence. So far as Nand Singh petitioner and Harmel Singh PW8 are concerned, Shamsher Singh PW 5 stated in his cross-examination at internal pages 8 and 9 in para 2 :

“…………. The Sarpanch and Nand Singh,

Nambardar had been called to identify the voters regarding whose identity there (was) some dispute and they were requested to wait outside in the Verandah. Sarpanch had disclosed his identity as Sarpanch and introduced Nand Singh as the Nambardar and it is on that basis I have stated that Sarpanch and Nambardar were called and that they visited the polling booth. At present I do not remember the name of the Sarpanch. The said Nambardar is the same person who has filed the present petition and he has been a teacher. As far as my personal knowledge goes, I cannot say if Nand Singh was in fact the Nambardar at all. I know that Shri Nand Singh aforesaid was not a voter at the polling booth No. 66-A. It is wrong to suggest that I have deliberately stated a wrong fact about Nand Singh being the Nambardar, in order to show his attendance and presence at the polling booth on that day. The Presiding Officer had summoned the Sarpanch and the Nambardar. The Presiding Officer had not summoned them through any written memo ……..”

40. Nand Singh PW 1 did not mention about his being Nambardar either in the election petition or in his statement made in the witness box as PW 1. Likewise, he did not mention in the election petition about his being called by the Presiding Officer of polling booth 66-A for identifying the voters whose identity was in dispute. He did not state about this fact in his statement. PW 8 has stated that he was Sarpanch of village Danewala but he did not state that he had been called by the Presiding Officer of polling booth 66-A for identifying the voters whose identity was in dispute. In his cross-examination, he stated at internal page 3 towards the end” “………… I am
a voter from village Danewala and my name figures in the list of voters relating to polling booth 66 and not in the polling booth No. 66-A, Danewala. At about 3.00 p.m. I had casted my vote ………” This statement shows that Harmel
Singh PW 8 had gone to cast his vote at polling booth 66 and had cast his vote at about 3.00 a.m. There was, thus, no occasion for him to stay there. Harmel Singh stated in examination-in-Chief that he was sitting at the door of polling booth 66-A facing towards outside when at about 4.00 p.m. the aforesaid persons came in Tata Sumo, got down and entered polling booth 66-A and indulged in booth capturing. As mentioned earlier, Harmel Singh PW 8 had exercised his

right of franchise at polling booth 66 at about 3.00 p.m. and thereafter he had no valid reasons to stay on at the College where the polling booths were situated. He has not stated about his presence being required by the Presiding Officer of polling booth 66-A to decide about the identity of the voters which was in dispute. Under these circumstances, it is difficult to believe that Harmel Singh PW 8 remained present there along with petitioner Nand Singh and witnessed the occurrence. His statement regarding the incident is, thus, not credible. The statement of this witness about his knowing the aforesaid persons Viney Partap Singh and Gurpreet Singh alias Guri is also not worthy of any belief. He has categorically stated in his cross-examination at internal page 4 in para 2 “………. The village of Viney
Partap Singh is located at a distance of about 80 kms. from village Danewala. The village of Viney Partap Singh is located under the jurisdiction of Muktsar District. The village of Gurpreet Singh alias Guri is situated at a distance of 5-6 kms. from village Danewala. I did not know as to how many brothers Gurpreet Singh alias Guri has. I also do not know as to how many brothers the father of Gurpreet Singh alias Guri had……….”

On further cross-examination he stated that as a Sarpanch of the village he did not got to the police to lodge the report about this incident nor did he go to report about this incident to the Sub Divisional Magistrate/Deputy Commissioner/ Senior Superintendent of Police. He also did not send any written application to any of -these authorities. Regarding the polling party he stated about his knowing Shamsher Singh who was a Teacher by profession and knew the Presiding Officer a bit but not thoroughly. He stated that he did not know Milkha Singh and that he came to know about the registration of the case regarding the incident of booth capturing on 8-2-1997 but could not tell as to who informed him about it. He stated that Sukhjivan Singh, Shamsher Singh, Milkha Singh and Balwinder Singh Bhundar did not inform him about the registration of the case regarding the booth capturing. According to his statement Nand Singh petitioner had told him about the registration of the case at the time when this election petition had been filed. He further stated that Nand Singh had told him that he had cited him as a witness in the election petition.

41. Shri Amarjit Singh Dhindsa PW 3 was the Returning Officer in the election to the said Assembly which took place in Feb. 1997. According to his statement the Presiding Officer of the polling booth 66-A had submitted his diary regarding the election proceedings taking place on the date of polling to him. After perusing the Presiding Officer’s diary he stated that the Presiding Officer reported about the booth capturing by about 7-8 persons between 4.00 p.m. to 4.15 p.m. According to him he had personally conveyed to the District Election Officer/Deputy Commissioner in his Camp Office and at that time Presiding Officer of the polling booth had accompanied him. The District Election Officer/ Deputy Commissioner sent a letter containing this information to the Chief Electoral Officer, Punjab, Chandigarh. He further stated that he sent a report in this regard to the Chief Election Commissioner at Delhi. He proved its Office copy as Exhibit PW 3/A. He further stated that he had sent a report directly to the Chief Electoral Officer, Punjab, Chandigarh regarding this incident and a copy of which was on record as Exhibit PW 3/B. In his cross-examination, he stated that he received the Presiding Officer’s diary at 11.00 p.m. on 7-2-1997 and at that time he was present at the Counting Centre at Mansa where he was receiving election papers, ballot boxes from the polling parties. On further cross-examination he stated that he was not aware of the facts put in the suggestion to the effect that S. Balwinder Singh Bhundar, the defeated candidate had under his influence over the District Election Officer/Deputy Commissioner, Mansa got the report of booth capturing sent to the Chief Electoral Officer, Punjab, Chandigarh. He denied the suggestion that he did not personally go to the Deputy Commissioner, Mansa and did not inform him about the incident of booth capturing aforesaid.

42. After carefully perusing the statements of these witnesses I find considerable merit in the submission of the learned counsel for the respondent that these witnesses are highly incredible and they in all reasonable probabilities did not know and identify the persons who indulged in booth capturing. The evidence of these witnesses is discrepant, highly incredible and not worthy of being relied upon.

43. Learned counsel for the respondent referred to the letter dated 8-2-1997 sent by the Returning Officer, 117 Sardulgarh Assembly Constituency addressed to the Chief Electoral Officer, Punjab, Chandigarh Exhibit PW3/B wherein the incident of booth capturing was mentioned but the names of the miscreants indulging in booth capturing at polling booth 66-A, village Danewala of the Constituency were not mentioned. The reference was made with reference to the entry made in the Presiding Officer’s diary. The contents of this letter are as under :

“I have the honour to address you on the subject cited above and to inform you that as per the Presiding Officer’s diary of Polling Station No. 66-A, Danewala village of the Constituency some armed persons entered in the polling station at about 4.15 p.m. on 7-2-1997 at the fag end of the polling and snatched a copy of the Ballot papers which was unsigned by the Presiding Officer. At the time of snatching, ballot papers did not contain the distinguished mark and, they affixed the same as well as arrow mark on 89 ballot papers bearing Sr. No. 060412 to 060500 and deposited the same into ballot box forcibly. Actually, all votes were polled in a fair and peaceful manner except these 89 votes. A copy of the third report in Annexure I has already been sent to the Election Commission of India, New Delhi as well as to your office through the Control Room, Punjab Civil Secretariat, Chandigarh on 8-2-1997 at 2.52 a.m. and at 3.13 a.m. respectively which depict the whole incidents (copy enclosed for ready reference). It has again been sent to the Election Commission, New Delhi on 8-2-1997 at 10.47 a.m. As these 89 ballot papers are unsigned by the Presiding Officer and as such are easily identifiable during the course of counting at the time of opening the ballot box separately to know the margin of votes of the winning candidate and may be rejected. I have already made my recommendation in Column No. 12 of the third report referred to above. The total ballot papers from serial No. 059921 to 060600 were issued for this polling station. FIR No. 9 dated 8-2-1997 under Sections 353/188/186/336/506/l48/149, IPC, 25/27/54/59 Arms Act.

In view of these facts mentioned above, necessary decision may kindly be conveyed immediately to the undersigned.”

44. The decision of the Election Commissioner of India for the re-polling at polling booth 66-A was communicated to the District Election

Officer, Mansa by the Chief Electoral Officer, Punjab vide his letter dated 8-2-1997. It is, however, not in dispute that repelling took place at the aforesaid polling booth 66-A. The submission of the learned counsel for the respondent was that till 8-2-1997 the identity of the miscreants respondents for booth capturing was not known.

45. So far as the registration of the F.I.R. and the investigation conducted by the Police is concerned, the submission of the learned counsel for the respondent was that the same is to be considered at the trial of the criminal case and at this stage it cannot be accepted for the purpose of the election petition as a proved fact that the booth capturing was committed either by the respondent or his election agent or by his persons with his consent.

46. Learned counsel for the respondent submitted that the evidence of the petitioner falls short of the standard of proof required for proving the grave charge of corrupt practice adopted by the respondent Ajit Inder Singh Moffar. However, the respondent has in order to discharge the onus that might have shifted on him to disapprove the allegations of the petitioner examined Rameshwar Dayal Sharma, RW 1, Tehsildar (Election), District Mansa, a formal witness who filed a sealed envelop contained the forms of polling agents of the candidates. The other witness examined was Gurjit Singh RW 2, who was posted as Presiding Officer at polling booth in village Moffar, District Mansa proving the fact that Shri Ranbir Singh and Darshan Singh were the polling agents appointed by Ajit Inder Singh at the polling booth in Moffar whereas Shri Balwinder Singh had appointed Sukhwinder Singh and Baljit Singh as his polling agents. He proved the six forms of polling agents as Exhibits RW 2/1 to RW 2/6. The respondent examined himself as RW 3 and further produced Ujagar Singh RW 4, Darshan Singh RW 5, Gurlal Singh RW 6 and Viney Partap Singh RW 7. Viney Partap Singh RW 7 is the nephew of respondent Ajit Inder Singh and he was appointed as the election agent by the respondent in the said election. Ajit Inder Singh RW 3 stated in his examination-in-Chief that he had appointed Viney Partap Singh as his election agent and he was asked to be present on the other side of river Ghaggar to look after Sardulgarh and adjoining

18 villages. He further stated that village Danewala is situated in the area where he himself had been Superviser during the polling hours on the day of polling. According to his statement he had gone to the polling booth situated in village Danewala around 11.30 and 12.00 Noon and thereafter he visited other villages such as Chunir, Bhame, Kot Dharmo, Beniwal etc. He stated that Mr. Harcharan Singh, Advocate accompanied him during his visit to the polling stations. In the end he came to village Chunir where he set up his Office. He reached village Chunir at about 5.30 p.m. From Chunir he went to Nehru Memorial College, Mansa where the ballot boxes from all the polling booths in the Constituency were being kept. Viney Partap Singh aforesaid came to meet him at Chunir and he reported about the polling being passed peacefully of his area. He met S.D.M. at Mansa around 7.30 p.m. who was the Returning Officer for the Constituency. At about 9.30 p.m. Milkha Singh, Balwinder Singh Bhundarand Sukhjivan Singh had reached Mansa and they also met the visiting District Officers. On the next morning around 9.00 a.m./10.00 a.m. he learnt about re-polling having been ordered at some of the polling booths.

47. In his cross-examination he stated that Viney Partap Singh was his real nephew being son of his real sister who is married in village Abul Khurana. He further stated that his sister had only son Viney Partap Singh and the other issues born to her were daughters. He was unable to say verbally as to who were the polling agents in village Moffar. The attention of the witness was drawn to para 2(i) of his reply wherein he had averred that Balwinder Singh son of S. Surjit Singh, Sukhmander Singh son of Bant Singh of village Moffar were polling agents on his behalf at village Moffar. He admitted about the fact that FIR No. 9 dated 8-2-1997 had been registered against Viney Partap Singh at Police Station Chunir. He stated that he came to know about it on the third day of the election. On further cross-examination he stated that on the date of polling he left his house around 7.00 a.m. and went to villages including Danewala. He had been enquiring from his polling agents about the polling taking place at the respective polling booth. He categorically denied about any such incident taking place at polling booth 66-A of village Danewala.

48. Ujagar Singh RW 4 was working as a polling agent in the said election and was appointed by a candidate named Sukhwinder Singh alias Sukhi. He worked as polling agent at polling booth of village Danewala. According to his statement, Balwidner Singh Bhundar came to the polling booth and asked him and others to go outside the polling booth. Thereafter, Balwinder Singh left the polling station and then two three persons came and asked that the polling be stopped. He stated that these 2-3 persons had accompanied Shri Balwinder Singh Bhundar. The polling accordingly stopped and they all came out of the polling booth. Thereafter, he went to contact Sukhwinder Singh alias Sukhi at Nehru Park, Mansa and told him about the incident involving the person S. Balwinder Singh. In his cross-examination he stated that he was polling agent at polling booth 66-A and denied the suggestion that Binder Singh was polling agent for the Congress Party at the polling booth 66-A. According to his statement the Congress Party who had filled the candidate Sukhwinder Singh in the said election had appointed one polling agent at each of the polling booths in village Danewala. In cross-examination he said that it was incorrect to say that Nand Singh petitioner was a Nambardar of village Danewala.

49. Darshan Singh RW 5 as already a polling agent in village Danewala on behalf of Shri Lal Chand, a candidate of Communist Party of India. According to his statement, Lal Chand came to the polling booth around 10.00 a.m. and was followed by Ajit Inder Singh Moffar who came at the polling booth at about 12.00 Noon and thereafter Balwinder Singh Bhundar came around 3.30/3.40 p.m. He stated that Shri Moffar had asked about the polling being proper and replied to him in the affirmative. Shri Moffar stood there for about ten minutes and left the polling booth. He stated that gunmen and two persons accompanied Balwinder Singh Bhundar remained inside the polling booth for about 15 minutes and they told the polling agents that the polling had now come to stop. In his cross-examination he stated that Ujagar Singh was the polling agent of the Congress Party and not Binder Singh. He stated that he did not know if booth capturing at the polling booth was done by Viney Partap Singh, nephew of Ajit Inder Singh.

50. Gurlal Singh RW 6 is a voter from village Danewala and on the date of polling he had gone to cast his vote at booth No. 66 at about 3.00 p.m. He cast his vote and came out of polling booth when Balwinder Singh Bhundar came at the polling booth and was accompanied by six persons. He stated that two persons accompanying Balwinder Singh Bhundar went inside the polling booth and said that the Lime of polling was over and thereafter the polling was stopped. In cross-examination he stated that he cast his vote at about 3.00 p.m. and after him 25 more persons cast their votes at the said polling booth.

51. Viney Partap Singh RW 7 stated that he was looking after villages situated on the left side of river Ghaggar and was mainly looking about the polling of about 18 villages situated near Sardulgarh. He had his Office set up in village Sardulgarh. On 7-2-1997 he was staying in village Mankhera and left the house at 7.30 a.m. which was the time for polling to commence. He went to polling station in Mankhera village and then the different villages which were situated at a distance of about 5.10 kms. from each other. Out of the villages which he visited on that day were Sangha, Karandi, Khaira, Khairi, Aloo-pos, Bhoos-mandi and Sardulgarh. He visited his election office at Sardulgarh and from there he went to Roorki and from Roorki to Jhanda and Jhandi. He was accompanied by S. Barjinder Singh in whose house he was staying at Mankhera. Barjinder Singh was the Ex-Sarpanch of the village. The police gunman, driver and one or two peoples who were familiar with the village, had accompanied him. He was travelling in a Gypsy Car Bearing No. CH01-M-7736. According to his statement the last village which he visited on the day of polling was Nara where he reached around 4.00 p.m. He stated that Sardulgarh town was situated at a distance of about 150 kms from village Abul Khurana. He had studied at many places like Mussoorie, Patiala and Chandigarh. He never studied in his village Abul Khurana. On the date of polling he went to Mansa with his uncle Ajit Inder Singh and met S.D.M. who was the Returning Officer of the Constituency and also met Senior Superintendent of Police and then his workers in the election. Thereafter, he had returned to his home in village Abul Khurana. It was on the next day of the polling i.e. 8-2-1997 that he read in the newspaper regarding the repolling in the said village and

that he was involved in the incident of booth capturing and which was totally a false news. The newspapers reported that he was showed as arrested. This fact was also incorrect. He came to village Moffar on 8-2-1997 and met his maternal uncle Ajit Inder Singh and enquired from him as to why he was being implicated in such incident. Thereafter, they went to meet Senior Superintendent of Police, Mansa as well as the Deputy Commissioner, Mansa and they told them that they were under some pressure from some quarters and these allegations would be taken back.

52. In his cross-examination he stated that prior to the day of polling he never visited the village, of which he was Incharge, as election agent of his maternal uncle. On an average he spent about half an hour in each village and in case the village was big, then more time was taken as compared to smaller village. The gunman, who accompanied him was Gurnam Singh. He re-iterated in his cross-examination that on the day of polling he was confined only to the area of which he was looking after i.e. Sardulgarh and not visited any other place. He stated that he did not move any written representation to the Deputy Commissioner, Mansa and Senior Superintendent of Police, Mansa regarding his alleged involvement in booth capturing in village Danewala. On the day of counting of votes he was present at Chandigarh. In his cross-examination he stated that how many polling booths were set up in village Danewala as he did not know about the said village. Regarding his being arrested in this case he stated that he had been granted interim bail which was cancelled after 10-15 days, then he applied the bail in the High Court which was not granted to him. Then he appeared in the Court of Sub Judge after a month and was granted bail. A pistol was recovered from him. He further stated in cross-examination that there was no occasion for him to give any representation regarding his non-visiting the places on the other side of river Ghaggar, such as Danewala and other villages. He categorically denied the suggestion put to him regarding his involvement of booth capturing in village Danewala.

53. The evidence led by the respondent is negative in character inasmuch as the alleged incident of booth capturing by Viney Partap Singh and his companions is concerned and so far

as his evidence regarding the said involvement of the persons of S. Balwinder Singh Bhundar in getting the polling stopped in village Danewala, the same is not of much consequence. The respondent has, thus, led evidence to controvert and rebut the evidence led by the petitioner.

54. In a recent judgment the Hon’ble Supreme Court in L.R. Shivaramagowda v. T.M. Chandrashekar (Dead) by LRs. (1999) 1 SCC 666: (AIR 1999 SC 252) has held in para 16, inter alia as under:

“16. The election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged and strictly proved to have been committed by the returned candidate him self or by his election agent or by any other person with the consent of the returned candidate or by his election agent. Suspicion, however strong, cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence…”

55. In the instant case also the petitioner has

failed to prove by the strict stand of proof required for proving the allegation of corrupt practice that the aforesaid corrupt practice i.e. of booth capturing at polling booth 66-A of village Danewala was committed by the returned candidate i.e. the respondent Ajit Inder Singh Moffar himself or by his election agent Shri Viney Partap Singh or by any other persons with the consent of respondent Ajit Inder Singh Moffar or his election agent Shri Viney Partap Singh. It may further be mentioned that the suspicion in the mind of the polling party posted at polling booth 66-A about the possible implication of the respondent or his election agent in the said booth capturing cannot take the place of proof required under the settled law for proving the allegations of booth capturing amounting to the commission of corrupt practice.

56. In view of the foregoing discussion, the petitioner has miserably failed to prove the charge of the corrupt practice levelled against the respondent Ajit Inder Singh Moffar regarding the involvement of his election agent Viney Partap Singh in the alleged incident of booth capturing. The evidence led by the petitioner is not worthy of credence and does not satisfy the strict standard of proof required for establishing such a serious charge of corrupt practice. Even otherwise the evidence led by the petitioner does not inspire confidence. Resultantly, Issue No. 1 is decided against the petitioner.

ISSUE NO. 2

57. In view of the findings recorded in Issue No. 1 the petition lacks merit and deserves to be dismissed with costs. The petition fails and is dismissed with costs.