{"id":28904,"date":"2007-11-30T00:00:00","date_gmt":"2007-11-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/desh-raj-vs-bodh-raj-on-30-november-2007"},"modified":"2019-01-31T02:18:41","modified_gmt":"2019-01-30T20:48:41","slug":"desh-raj-vs-bodh-raj-on-30-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/desh-raj-vs-bodh-raj-on-30-november-2007","title":{"rendered":"Desh Raj vs Bodh Raj on 30 November, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Desh Raj vs Bodh Raj on 30 November, 2007<\/div>\n
Author: B . K.G.<\/div>\n
Bench: Cji K. Balakrishnan, R. V. Raveendran<\/div>\n
           CASE NO.:\nAppeal (civil)  4676 of 2005\n\nPETITIONER:\nDesh Raj\n\nRESPONDENT:\nBodh Raj\n\nDATE OF JUDGMENT: 30\/11\/2007\n\nBENCH:\nCJI K. G. Balakrishnan & R. V. Raveendran\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
K.G. Balakrishnan CJI.\n<\/p>\n
\tThis statutory appeal under section 116A of the Representation of
\nPeople Act 1951, is filed by an Election Petitioner against the judgment
\ndated 7.6.2005 of the Himachal Pradesh High Court dismissing his Election
\nPetition No.1 of 2003 challenging the election of the respondent (Bodh Raj)
\nas Member of Legislative Assembly from 35-Gangath (SC) Assembly
\nConstituency.\n<\/p>\n
2.\tThe case of the appellant in brief is that 35-Gangath Assembly
\nConstituency is reserved for scheduled castes, that he and the respondent,
\namong others were candidates for election from the said constituency. In the
\nsaid election held on 26.2.2003, the respondent secured the highest number
\nof votes namely 24499 and was declared as elected. The respondent had in
\nhis nomination paper declared that he belongs to a scheduled caste (Lohar)
\nand in support of his claim, had produced a caste certificate dated
\n16.12.1991 issued by the Executive Magistrate, Indora, District Kangra
\ncertifying that he belonged to scheduled caste of Lohar. Only a few days
\nbefore the polling, the appellant learnt that respondent does not belong to
\nLohar caste but belongs to ‘Tarkhan’ caste which is not a scheduled caste in
\nthe State of Himachal Pradesh. According to Appellant, the respondent was
\ndisqualified to contest the election in the Assembly Constituency reserved
\nfor scheduled caste and therefore, the election of the respondent was void.\n<\/p>\n
3.\tThe respondent resisted the said election petition. In his written
\nstatement, he asserted that he belonged to Lohar caste (a Scheduled Caste)
\nand was eligible and qualified to contest as a candidate for the reserved
\nAssembly Constituency (35-Gangath).  He also contended that he was not
\nserved a complete and attested copy of election petition and therefore, the
\npetition was liable to be rejected.\n<\/p>\n
4.\tIssues 1 to 3 framed by the High Court (relating to the respondent’s
\ncontention that he was not served a complete and attested true copy of the
\nelection petition)  were treated and tried as the preliminary  issues and held
\nagainst the respondent by order dated 26.9.2003. Thereafter, evidence was
\nled in regard to the issues (4) to (6) which read thus:\n<\/p>\n
(4)\tWhether the respondent is not a member of Lohar Caste (SC) and was
\nnot qualified on the date of his election to fill the seat in the
\nAssembly, from reserved Constituency for SC?\n<\/p>\n
(5)\tWhether nomination paper of respondent has wrongly and improperly
\nbeen accepted?\n<\/p>\n
(6)\tRelief<\/p>\n
After appreciating the oral and documentary evidence, the learned Single
\nJudge of the High Court by Judgment dated 7.6.2005 held that the appellant
\nfailed to prove that respondent did not belong to a schedule caste (Lohar)
\nand was not qualified to contest the election to the assembly seat reserved
\nfor scheduled caste. As a consequence, he dismissed the petition. The said
\njudgment is under challenge in this appeal.\n<\/p>\n
5.\tIt is not in dispute that a person who does not belong to a scheduled
\ncaste, cannot offer himself as a candidate for election to a reserved
\nconstituency. Article 173 of the Constitution prescribes the qualification for
\nmembership of the State Legislature and provides that a person shall not be
\nqualified to be chosen to fill a seat in the legislature of a State unless he is a
\ncitizen of India, not less than 25 years of age, and possesses such other
\nqualifications as may be prescribed in that behalf by or under any law made
\nby Parliament. Section 5 of the Representation of People Act, 1951 (‘Act’ for
\nshort) made by the Parliament prescribes the qualification for membership of
\na Legislative Assembly. It provides that a person shall not be qualified to be
\nchosen to fill a seat in the Legislative Assembly of a State, reserved for the
\nscheduled castes of that State, unless he is a member of any of those
\nscheduled castes and he is an elector for any Assembly Constituency in that
\nState. Section 100 of the Act enumerates the grounds for declaring an
\nelection to be void. Clause (a) of sub-section (1) thereof provides that if the
\nHigh Court is of the opinion that on the date of his election, a return
\ncandidate was not qualified, or was disqualified, to be chosen to fill the seat
\nunder the Constitution or under the Act, the High Court shall declare the
\nelection of the returned candidate to be void. Thus, if a candidate who
\ncontests the election, representing himself by belonging to a schedule caste,
\nis shown in a proceeding contesting his election, as not belonging to a
\nschedule caste of the state, his election is liable to be declared as void.
\nTherefore, the only question that arises for our consideration is whether the
\nappellant had proved that the respondent does not belong to ‘Lohar Caste’ – a
\nscheduled caste of the State of Himachal Pradesh.\n<\/p>\n
6.\tThe appellant had let in oral evidence by examining some residents of
\nthe respondent’s village Mohtli – Jagdish Raj (PW7), Satpal (PW8), Joginder
\nSingh (PW9) and Mohal Lal (PW10)  to show that the respondent belonged
\nto ‘Tarkhan’ caste. He also let in documentary evidence in the nature of
\nschool records (Ex.PW-2\/A, Exs.PW-3\/A and 3\/B), birth register extracts
\n(Exs.PW-6\/A, 6\/B, and 6\/C) and Pariwar Register maintained by the Gram
\nSabha (Exs.PW-4\/A, 4\/B, 4\/C and 4\/D) to show that the caste of respondent
\nwas ‘Tarkhan’ and that after 1990 respondent had attempted to represent that
\nhis caste as Lohar. We will first consider the oral evidence.\n<\/p>\n
7.\tJagdish Raj (PW7) stated that the respondent’s mother and his father
\nwere cousins, that he and respondent belong to Tarkhan caste and are
\nresidents of Mohtli village. According to him, the village has three
\nMohallas. About ten families of Tarkhan caste and those belonging to the
\nRajput caste reside in Jaildar Mohalla. Persons belonging to the scheduled
\ncastes of Chamar, Mahashay, Batwal and Bazigar reside in the Harijan
\nMohalla. Brahmins reside in the Brahmin Mohalla. He stated that no one
\nbelonging to ‘Lohar’ caste resided in the village. He also states that
\nrespondent’s parents were Milkhi Ram and Giano Devi. He also gave the
\nnames of other Tarkhan families in the village who were the relatives of the
\nrespondent. His evidence was rejected by the High Court on the ground that
\nthe witness had admitted that his grandfather had worked as a Blacksmith
\nand a person who worked as a blacksmith was called as a Lohar and a person
\nwho worked as Carpenter was called as Tarkhan and on the ground that he
\nwas not in a position to say the degree of relationship between his father and
\nrespondent’s mother, when he claimed that they were cousins.\n<\/p>\n
8.\tSatpal (PW8), another resident of Mohtli village, stated that
\nrespondent was a Tarkhan by caste, that he knew respondent’s father Milkhi
\nRam as also his relatives who all belonged to Tarkhan caste and who were
\ndisplaced persons who had come from Pakistan and settled in the village
\nMohtli. He also stated that Mohtli village is divided into three areas namely
\nBrahman Abadi where Brahamins lived, Jaildar Mohalla where Tarkhan and
\nRajput families resided and a separate Mohalla where people belonging to
\nscheduled castes – Chamar, Mahashay, Batwal and Bazigar resided and that
\nthere was no Lohar family in the village Mohtli. He also stated that except
\nrespondent, there was no other person known as Bodh Raj son of Milkhi
\nRam in the village Mohtli. The evidence of this witness was rejected by the
\nHigh Court on the ground that the witness was able to state the number of
\nissues of each son and daughter of Milkhi Ram.\n<\/p>\n
9.\tJoginder Singh (PW9), another resident of Mohtli village, stated that
\nrespondent belonged to Tarkhan caste, that he also knew the respondent’s
\nfather Milkhi Ram as also their relatives who all belonged to Tarkhan caste.
\nHe also stated that Milkhi Ram had five children namely three sons (Sat Pal,
\nYashh Pal and Bodh Raj) and two daughters (Satya Devi and Raj Rani) and
\nthe respondent was youngest among the five issues of Milkhi Ram. He also
\nstated that Tarkhans and Rajputs reside in Jaildar Mohalla, that persons
\nbelonging to scheduled castes of Chamar, Bazigar, Batwal and Mahashay
\nresided in a separate Mohalla, and Brahmins resided in another separate
\nMohalla. The evidence of this witness was rejected on the ground that he
\nwas a sympathizer towards BJP party to which the appellant belonged and
\ntherefore, inimical towards respondent who belonged to Congress Party.\n<\/p>\n
10.\tMohan Lal (PW10) who is also a resident of the Mohtli, stated that
\nrespondent belonged to Tarkhan caste and that there was no person other
\nthan respondent in the village who is known as Bodh Raj, son of Milkhi
\nRam and that no Lohar family resides in the Village Mohtli. His evidence
\nwas rejected by the High Court on the ground that he did not know
\nrespondent’s father Milkhi Ram and had not stated the occupation of the
\nrespondent’s family members.\n<\/p>\n
11.\tThe appellant Desh Raj gave evidence as PW-11. He stated that
\nrespondent belonged to Tarkhan caste and was not qualified to contest the
\nelection for a seat reserved for scheduled castes. He stated that only 4 to 5
\ndays before the polling, he came to know from his workers that respondent
\nbelonged to a backward caste (BC) and not a scheduled caste. His evidence
\nby the High Court was rejected as he had no person knowledge about the
\ncaste of the respondent.\n<\/p>\n
12.\tWe may also refer to the evidence of the respondent’s witnesses
\nhailing from the village Mohtli. RW-1 Yash Pal, respondent’s elder brother,
\nexamined as RW-1 stated that he and respondent are Lohars by occupation.
\nHe also stated that Basaba Ram and Nasib Chand who are related to him
\nwere also Lohars by ‘occupation’. In his cross-examination, he stated that his
\nfather Milkhi Ram had five children (three sons and two daughters), that the
\nrespondent was the youngest, that his grandfather’s name was Gopi, that he
\nand respondent studied in the village school, and that respondent was
\ncarrying on the business of scooter repairs. Tilak Raj examined as RW-4
\nstated that respondent, and his relations Khazana Ram and Basaba Ram were
\nLohar by caste as they were doing the job of Lohars. Ved Prakash (RW-6)
\nstated that respondent and his brothers as also Basaba Ram and Khazana
\nRam worked as Lohars and were, therefore, belonged to Lohar caste. He
\nadmitted that he was elected as the Pradhan and respondent was elected as
\nUp Pradhan of Mohtli Gram Panchayat in the year 1990 that both belonged
\nto congress party. He also admitted that gram panchayat maintained a
\nregister known as Pariwar Register, that Pradhan of the gram panchayat was
\nthe overall custodian of all records and that the details of all families
\nresiding in the panchayat areas including names, age, address, caste etc., are
\nrecorded in the said register. He admitted that in the Ex.PW4\/A, the Pariwar
\nRegister relating to the year 1976, the caste of respondent and his family had
\nbeen shown as Tarkhan and that then corrected as ‘Lohar’. Ram Singh (RW-\n<\/p>\n
7) stated that he knew respondent’s father Milkhi Ram and his three sons
\nincluding respondent were belonged to Lohar caste. He also stated that he
\nhad seen the members of the respondent’s family working as Lohar and
\ntherefore, he stated that he belonged to the caste of Lohar. Bua Butta (RW-8)
\nanother resident of Mohtli village stated that he knew the respondent, that
\nrespondent was a Lohar by caste. According to him, because he used to get
\nagricultural iron implements prepared and repaired by him, the respondent
\nbelonged to Lohar caste. He asserted that except respondent there is no other
\nBodh Raj, son of Milkhi Ram in the Mohtli village. Maggai Singh (RW-11)
\nwho is a resident of a neighbouring village of Surajpur stated that he used to
\nget Lohar’s job done from Milkhi Ram, Khazana Ram and Chaina Ram and
\nthat ‘since they were working as Lohars, they were Lohars by caste. He also
\nclarified that he had not enquired about their castes and that it is possible
\nthat respondent and his family may be Tarkhans.\n<\/p>\n
13.\tWhat emerges from the aforesaid oral evidence is that while the
\nwitnesses examined by the appellant (PWs 7, 8, 9 and 10), who all belonging
\nto Mohtli village to which respondent belonged, stated that they knew him
\nand his family well and that he belonged to Tarkhan caste. The cross-
\nexamination of these witnesses (PWs 7, 8, 9 and 10) has not brought out
\nanything significant to disbelieve their evidence. On the other hand, the
\nevidence of the witnesses of respondent (RWs 1, 4, 6, 7, 8 and 11) has been
\nto highlight the occupation of respondent and his relatives. They have all
\nstated that because the respondent’s family and relatives were doing the job
\nof Lohars, they belong to the caste of ‘Lohar’. In fact, the evidence of
\nappellant’s elder brother Yash Pal in his short examination-in-chief,
\nextracted below, is significant :\n<\/p>\n
“I know the respondent. He is my brother. We are Lohars by
\noccupation. Name of my father is Milkhi Ram. I know Basawa
\nRam and Nasib Chand also. They are related to me. They are
\nalso Lohars by occupation.”\n<\/p>\n
14.\tWe will next consider the documentary evidence. Ex.PW-2\/A is the
\nadmission and withdrawal Register of Government Primary School, Mohtli
\nfor the relevant period. Entry at Sl. No.1739 in the said Register shows that
\nBodh Raj, son of Milkhi Ram, Labourer (date of birth 2.5.1956; caste:
\nTarkhan) was admitted on 16.4.1962 to the First Standard and his name was
\nstruck off due to lack of attendance on 11.2.1964. There is another entry
\nrelating to Bodh Raj, son of Milkhi Ram of Mohtli village at Sl. No. 1959.
\nThis entry shows that Bodh Raj, son of Milkhi Ram (date of birth 2.5.1956,
\ncaste : Tarkhan) was admitted to the second standard. The portion of the
\nsheet where the date of admission was noted is torn and it is however,
\nevident from the other entries in the sheet that the admission for the second
\ntime was made in April, 1964. The entry also shows that he studied up to 5th
\nstandard and completed his education in the school on 31.3.1967.\n<\/p>\n
15.\tEx.PW-3\/A is the application form for admission given to the
\ngovernment Secondary school by Milkhi Ram. It gives the name of the
\nstudent as Bodh Raj, father’s name as Milkhi Ram, date of birth as 2.5.1956
\nand the caste as Tarkhan. It contains the thumb mark of Milkhi Ram.
\nEx.PW-3\/B is the Admission Register of Mohtli Government Middle School
\nfor the period 1962 to 1969. Entry No.778 relates to Bodh Raj son of Milkhi
\nRam, Mazdoor, caste Tarkhan. The admission was noted in a page at the top
\nof which was the date 11.9.1967. As the next page starts with the date
\n4.4.1968, it is to be inferred that the admission to the middle school was in
\nthe year 1967-68.\n<\/p>\n
16.\tEx.PW-6\/A is the extract of the Birth Register maintained by the
\nIndora Police Station (page 376 entry no.27) whose limits include Mohtli
\nvillage. Ex.PW-6\/B is the true English translation of Ex. PW\/6A which is in
\nUrdu. Ex. PW6\/C is the certificate of birth. They relate to the birth of the
\nfifth child of Milkhi Ram (son of Gopi Ram) and Smt. Giano, on 2.5.1956.
\nThe place of residence of the parents is shown as Mohtli and their caste is
\nshown as Tarkhan. The name of the male child is shown as Bodh Ram. The
\nregistration was made on 16.5.1956, on the report of the Chowkidar.\n<\/p>\n
17.\tEx.PW-4\/A, Ex.PW-4\/B, Ex.PW-4\/C and Ex.PW-4\/D are the Pariwar
\nRegister of Mohtli Village for the years 1976, 1977, 1982-89 and 1990
\nonwards. The said register is maintained as required by the relevant rules
\nrelating to Gram Sabhas. In Ex.PW-4\/A relating to the year 1976, the family
\nof Yash Pal is shown as consisting of Yash Pal, his wife Prem Lata, daughter
\nGuddi and brother Bodh Raj. Under the column ‘whether scheduled caste or
\nscheduled tribe’, the caste is entered as ‘Tarkhan’, which is struck off and
\nsubstituted by the word ‘Lohar’ without any attestation regarding correction.
\nIn Ex.PW-4\/B is the pariwar register relating to the year 1977, the entry
\nrelating to Sat Pal and his family shows that his family consisted of himself,
\nhis wife Kamlesh, his brothers Yash Pal and Bodh Raj and his children
\nAsha, Nirasha and Sushil Kumar. Under the column ‘whether scheduled
\ncaste or scheduled tribe’, the caste is entered as ‘Tarkhan’ which is struck off
\nand substituted by the words ‘Lohar’ without any attestation regarding
\ncorrection. In Ex.PW-4\/C which is the Pariwar register for the year 1982-
\n1989, the entry regarding the  family of Sat Pal shows the family as
\nconsisting of himself, his wife Kamlesh, his children Asha, Nirasha and
\nSushil Kumar, his brother Yash Pal and his wife Prem Lata and child Guddi
\nand another brother Bodh Raj. Here again, under the column ‘whether
\nscheduled caste or scheduled tribe’, the entry is ‘Tarkhan’ which is struck off
\nand substituted by the word ‘Lohar’ without any attestation regarding the
\ncorrection. Ex.PW-4\/D is the Pariwar register for the year 1990 onwards and
\nin this register, the family of Bodh Raj is shows as consisting of himself, his
\nwife Kunti Devi and children Rajiv Kumar and Pankaj Kumar and under the
\ncolumn ‘whether scheduled caste or schedule tribe’, the caste is shown as
\n‘Lohar’.\n<\/p>\n
18.\tThe High Court has rejected all these documents as either not proved
\nor not of any evidentiary value. We may now consider whether they were
\nproperly proved.\n<\/p>\n
19.\tEx.PW-2\/A (admission and withdrawal register of the government
\nprimary school, Mohtli) was produced by PW-2 (Kamla Kumari) employed
\nin the Government primary school, Mohtli, in response, summons issued to
\nthe said school to produce the said register. She also gave evidence
\nregarding entries nos. 1739 and 1959 relating to Bodh Raj and gave the
\nparticulars entered in regard to Bodh Raj under the said two entries. In her
\ncross-examination, she stated that she has been posted in the said school for
\nthe last two years and that she had not made the said entries. The High Court
\nhas rejected the said School Register on the ground that the said register
\nEx.PW-2\/A and the entries therein relating to Bodh Raj merely on the
\nground that PW-2 was not the author of the entries and she has no personal
\nknowledge about the entries. The High Court relied on the decision of this
\nCourt in Birad Mal Singhvi vs. Anand Purohit<\/a> [AIR 1988 SC 1796].\n<\/p>\n
20.\tSection 35 of the Evidence Act provides that an entry in any public or
\nother official book or register or record, stating a fact in issue or relevant fact
\nand made by a public servant in the discharge of his official duty or by any
\nother person in performance of a duty specifically enjoined by law of the
\ncountry in which such book or register is kept, is itself a relevant fact.
\nHaving regard to the provisions of Section 35, entries in school admission
\nregisters in regard to age, caste etc., have always been considered as relevant
\nand admissible. [See : Umesh Chandra vs. State of Rajasthan<\/a> – 1982 (2)
\nSCC 202 and State of Punjab vs. Mohinder Singh<\/a> – 2005 (3) SCC 702]. In
\nKumari Madhuri Patil vs. Addl. Commissioner<\/a> [1994 (6) SCC 241], this
\nCourt observed that caste is reflected in relevant entries in the public records
\nor school or college admission register at the relevant time and certificates
\nare issued on its basis. In Birad Mal Singhvi (supra), this Court after
\nreferring to the ingredients of section 35 held thus :\n<\/p>\n
“An entry relating to date of birth made in the school register is relevant
\nand admissible under section 35 of the Act, but the entry regarding to the
\nage of a person in a school register is of not much evidentiary value to
\nprove the age of the person in the absence of material on which the age
\nwas recorded The entries regarding dates of birth contained in the
\nscholar’s register and the secondary school examination have no probative
\nvalue, as no person on whose information the dates of birth of the
\naforesaid candidates was mentioned in the school record, was examined.
\nIn the absence of the connecting evidence, the documents produced by the
\nrespondent, to prove the age of the aforesaid two candidates have no
\nevidentiary value.”\n<\/p>\n
This Court further held unless the parents, or persons conversant with their
\ndate of birth were examined, the entry in the school register by itself will not
\nhave much evidentiary value. In this case, we are concerned with the ‘caste’
\nand not the date of birth. The residents of a village have more familiarity
\nwith the ‘caste’ of a co-villager, than the date of birth of the co-villager.
\nSeveral villagers who knew the respondent and their father, including a
\ncousin of the respondent has been examined and they have stated the caste of
\nthe respondent. Appellant has also produced other documentary evidence
\nwhich clinch the issue, namely the application made by the respondent’s
\nfather for admission of respondent to school, birth register extract and
\nvillage Pariwar Register extracts to establish the caste of the respondent.
\nFurther the said entries in the school register were made nearly forty years
\nprior to the election petition. When read with other oral and documentary
\nevidence, it cannot be said that Ex.PW-2\/A has no evidentiary value even by
\napplying the strict standards mentioned in Birad Mal Sanghvi.\n<\/p>\n
21.\tWe will next refer to Ex. PW3\/A and Ex. PW3\/B produced by PW-3
\nSmt. Indersh Bala, Principal of the Mohtli Senior Secondary School in
\nresponse to a summons issued by the High Court. Ex. PW3A is application
\nfor admission submitted to the School by Milkhi Ram, father of Bodh Raj,
\nregistered as Sl.No.478. Ex.PW-3\/B is the School Admission Register and
\nentry 778 showed that Bodh Raj son of Milkhi Ram, caste Tarkhan, was
\nadmitted to Middle School and had passed 8th standard from the school.
\nPW-3 stated that the particulars mentioned in the entry were that he was the
\nson of Milkhi Ram, resident of village Mohtli and that his caste was
\nTarkhan. In her cross-examination, she stated that she was working in the
\nsaid school for the last about one and half years and has no personal
\nknowledge about the entries made therein. The High Court rejected both
\nEx.PW-3\/A and PW-3\/B on the ground that the date of Ex.PW-3\/A was not
\nclear and can be read as 22.4.1996 or 23.4.1968 and neither of those dates
\ncorrelated to Ex.PW-3\/B as that showed that admission must have been
\nmade between 11.9.1967 and 4.4.1968. It is evident from Ex.PW-2\/A that
\nBodh Raj left the primary school on 31.3.1967. The date on which the
\napplication for admission was registered was seen as ‘22.4.196__’. Only
\nregarding the last figure in the ‘year’ the court had a doubt whether it was ‘6’
\nor ‘7’ or ‘8’ as that would make the year 1966, or 1967, or 1968. Merely
\nbecause there was difficulty in reading one figure in the date cannot be a
\nground to refuse to accept Ex.PW-3\/A. The said application submitted by
\nMilkhi Ram, containing his thumb mark, being a document more than 30
\nyears old attracts the presumption under section 90 of evidence Act. As
\nEx.PW-3\/A gives the caste as ‘Tarkhan’, it has to be treated as clinching
\nevidence. Ex.PW-3\/B which was also produced from proper custody in
\npursuance of summons issued from the court showed that Bodh Raj, son of
\nMilkhi Ram, Tarkhan caste, belonging to Mohtli village studied upto 8th
\nstandard. Here again it should be noticed that the evidence of the witnesses
\nof both appellant and respondent is that there is only one Bodh Raj, son of
\nMilkhi Ram in Mohtli village. Therefore, there was no justification to hold
\nthat there were some irreconcilable difference between Ex.PW-3\/A and
\nEx.PW-3\/B and rejected both the documents. Another reason given by the
\nHigh Court to reject the said evidence is that Ex.PW-3\/B showed that the
\nBodh Raj had passed the 8th Standard and whereas he had stated in his cross
\nexamination that his qualification is under ‘middle’. The High Court
\ninterpreted this as having failed in 8th standard, and considered the said
\nstatement as a contradiction and therefore, an additional ground for rejecting
\nEx.PW-3\/B. The Respondent had been evasive in his evidence about his date
\nof birth and particulars of his relatives in the village, to avoid being linked to
\nthe caste mentioned in the school records. Therefore, his statement that he
\nwas under ‘middle’ was not a ground to reject the correction of Ex.PW-3\/B.
\nInsofar as the evidentiary value of Ex.PW-3\/B, our observation with
\nreference to Ex.PW-2\/A equally apply to Ex.PW-3\/B also.\n<\/p>\n
22.\tWe are of the view that the High Court  committed an error in
\nignoring the entries in the admission and withdrawal registers of the
\ngovernment primary and middle schools, Mohtli (Ex. PW-2\/A and Ex. PW-
\n3\/B). We have already noticed the evidence (of PW8 and RW8) that there is
\nonly one Bodh Raj, son of Milkhi Ram in the village of Mohtli. Respondent
\ndoes not claim that there was any other Bodh Raj, son of Milkhi Ram in the
\nvillage of Mohtli. Respondent, who was examined as RW-5, specifically
\nadmits that he studied in the Government primary school, Mohtli. He gives
\nhis age as 48 years in 2004 which corresponds with the age that is entered in
\nthe said register. When he was put a specific question about his date of birth
\nthat is 2.5.1956 (which was the date entered in the said registers), the
\nrespondent gave an evasive answer stating that he did not know whether his
\ndate of birth was 2.5.1956. What is significant is that he did not deny that his
\ndate of birth was 2.5.1956. In fact RW-9 examined by respondent admitted
\nthat date of birth of respondent is 2.5.1956. The admission of the respondent
\nthat he was born around 1956 and was a resident of Mohtli village and
\nstudied in the government primary school, Mohtli, when read with the
\nSchool records, prove beyond doubt that the entries in Ex. PW2\/A and Ex.
\nPW3\/B referred to above relating to Bodh Raj, son of Milkhi Ram of Mohtli
\nvillage, Tarkhan caste, refers to respondent.\n<\/p>\n
23.\tIn response of summons issued by the High Court, PW-6 Naresh Sood
\nworking as Projectionist in the office of CMO, Dharmashala, brought the
\nbirth register and maintained by the Indora Police Station. The relevant entry
\nrelating to birth of the fifth child of Milkhi Ram and Giano of Mohtli village
\nof Tarkhan caste on 2.5.1956 was marked as Ex.PW-6\/A. An English
\ntranslation of the Urdu extracts was Ex.PW-6\/B, and the certificate as
\nEx.PW-6\/C. The said register and the extract showed the name of the child
\nas ‘Bodhu Ram’. It also shows that the entry was made on 16.5.1956 on the
\ninformation given by the, Chowkidar. The High Court rejected the said
\nevidence merely on the ground that the name of the child was mentioned as
\n‘Buddu Ram’ and not as Bodh Raj. This again is a public record relating to
\nbirths maintained as per Rules in the usual course of discharge of official
\nfunctions. The Punjab Police Rules, 1934 (applicable to Himachal Pradesh)
\nrequire maintenance of a Register of Births and Deaths at the Police Station
\n(vide Rule 22.45 in Chapter XXII relating to Police Station. Rule 22.66
\ngives the manner of maintaining such Register. Clause (5) states that birth
\nand death registers shall be retained at the Police Station for one year after
\nthe date of last entry and shall be sent to the Civil Surgeon for record. The
\nRule requires the village Watchman should diligently report births and
\ndeaths of his village diligently. Therefore the said birth records ought to
\nhave been accepted by the High Court. The High Court has rejected the
\nBirth Extract and certificate as they relate to Buddu Ram and not Bodh Raj.
\nIt is quite possible that the person who gave information mentioned the
\nname as Buddu Ram instead of Bodh Raj or that the child was also known as
\nBuddu Ram initially. But what is relevant is that fifth child of Milkhi Ram
\nand Giano of Mohtli village who belonged to Tarkhan caste was born on
\n2.5.1956. It is nobody’s case that Milkhi Ram and Giano of Mohtli village
\nhad some other fifth child born on 2.5.1956.\n<\/p>\n
24.\tIn pursuance of summons issued by the court, Chunni Lal, the
\nPanchayat Secretary of Gram Panchayat, Mohtli (PW-4) produced the
\nPariwar register prepared and maintained as required under the Rules
\nrelating to Gram Sabhas. The pariwar registers for the years 1976, 1977,
\n1982 to 1989 and 1990 onwards were produced as Exs.PW-4\/A,  PW-4\/B,
\nPW-4\/C and  PW-4\/D. In Ex.PW-4\/A, Bodh Raj was shown as family
\nmember of elder brother Yash Pal. In Exs.PW-4\/B  and PW-4\/C, he was
\nshown as a family member of elder brother Sat Pal. In all these registers, the
\nfamily was shown as of Tarkhan caste. Against the column ‘whether
\nscheduled caste or scheduled tribe’, the entry was ‘Tarkhan’ which was struck
\noff and substituted by the entry Lohar. The correction was not attested. On
\nthe other hand, Ex.PW-4\/D relating to the period of 1990 onwards showed
\nthe respondent himself as the head of his family and his caste as Lohar.
\nRW-6, Ved Prakash, was the Pradhan of the Mohtli Gram Panchayat elected
\nfor two terms in 1985 and 1990. He also had admitted that the gram Sabha
\nwas maintaining a pariwar register containing the details of all families
\nresiding in the panchayat area including their ages, occupations, castes etc.
\nThe suggestion put by respondent (RW-5) and Ved Prakash [RW6] (Pradhan
\nduring 1985-1995 and elected in 1990) was that when respondent became
\nthe Up-Pradhan of the Mohtli Gram Panchayat in 1990, he managed to get
\nthe entries in Exs.PW-4\/A, PW-4\/B, and PW-4\/C, relating to caste namely
\n‘Tarkhan’ struck off and substituted the word ‘Lohar’. The suggestion of
\ncourse was denied. If the substitution was with reference to the entry in only
\none register, it could have been explained away as a mistake. But it is
\nsignificant that the registers of the years 1976, 1977 and 1982-1989 all show
\nthe caste of the family as ‘Tarkhan’ and all the entries are struck off and
\nsubstituted by the word ‘Lohar’. The High Court has refused to rely on Ex.
\nPW4\/A, B, C only on the ground that the entries in the register contained
\nsome other corrections and that the manner in which they were maintained
\nraised a doubt about the probative value of the document. We are of the view
\nthat in the absence of any satisfactory explanation of the caste ‘Tarkhan’
\nbeing struck off and substituted by ‘Lohar’, the conclusion is that they were
\nall done subsequent to 1990 when respondent became the Up-Pradhan.\n<\/p>\n
25.\tThe evidence let in by appellant clearly establish the following :\n<\/p>\n
(a) \tRespondent was born in and is a resident of Mohtli village. His date of
\nbirth is 2.5.1956.\n<\/p>\n
(b) \tRespondent is the last and fifth child of his parents are Milki Ram and
\nGiano. Respondent is the only ‘Bodh Raj’, son of Milkhi Ram in
\nMohtli village.\n<\/p>\n
(c) \tRespondent was a student of government primary and middle schools,
\nMohtli. The school records show that Respondent is the son of Milkhi
\nRam of Mohtli and his caste was Tarkhan on the basis of particulars
\nfurnished by his father.\n<\/p>\n
(d) \tIn the birth register maintained in the jurisdictional Police Station as
\nper the Punjab Police Rules, his date of birth was registered as
\n2.5.1956 and the caste of his parents was shown as Tarkhan;\n<\/p>\n
(e) \tThat in the Pariwar Registers maintained by the Gram Sabha between
\n1976 and 1989, the caste of his family was shown as ‘Tarkhan’ and
\nthat sometime thereafter, it was struck off and shown as ‘Lohar’.\n<\/p>\n
The evidence of the residents of Mohtli village (PWs.7 to 10) support the
\nsame. There is nothing in the cross-examination of PWs.7 to 10 to disbelieve
\ntheir statements that the respondent belonged to Tarkhan caste. However,
\neven if we exclude the entire oral evidence, the documentary evidence
\nproduced by the appellant, to which we have adverted to above, clearly
\ndemonstrate that the respondent’s father and his family members including
\nrespondent had always held out to be and accepted as persons belonging to
\nTarkhan caste. It was only after 1990, the respondent tried to show that he
\nbelonged to Lohar caste.\n<\/p>\n
26.\tThe Learned counsel for the respondent submitted that in view of Ex.
\nPW4\/D and Ex.RW-5A, he should be considered as having established that
\nhe belongs to Lohar caste. Ex. PW-4\/D is the Pariwar Register extract for the
\nyear 1990 onwards. The same no doubt shows the caste of respondent as
\nLohar. But when Ex.PW-4\/D is read in conjunction with PW-4\/A, PW-4\/B
\nand PW-4\/C which are the Pariwar Register extracts relating to the previous
\nyears (1976, 1977 and 1982-1989) where his caste was shown as Tarkhan
\nand later altered as ‘Lohar’, the entry in Ex.PW-4\/D becomes a self serving
\nstatement. The respondent was elected as the Upapradhan of Mohtli Gram
\nPanchayat in the year 1990 (RW-6, Ved Prakash, belonging to his party was
\nelected as Pradhan). In his capacity as Upapradhan he had access to the
\nrecords of the Panchayat, and it is obvious that with the intention of
\nrepresenting himself as belonging to a Scheduled Caste of Lohar, had
\nensured that his caste was shown as Lohar in PW-4\/D. The alteration of  the
\nentries relating to caste in Exs.PW4\/A, 4\/B and 4\/C, from ‘Tarkhan’ to
\n‘Lohar’ should be looked at in this background, particularly when it is seen
\nthat the correction of caste by striking out ‘Tarkhan’ is not only in regard to
\nthe family of respondent but also in the case of some of the relatives of the
\nrespondent. \tIn so far as the caste certificate Ex.RW-5\/A issued by the
\nExecutive Magistrate, Indora, relied on by respondent, it has to be observed
\nthat such caste certificates are not given after a thorough investigation.
\nWhen the caste of respondent is in issue and when primary evidence
\nregarding caste is led by appellant, and the attempt of respondent to claim to
\nbe a ‘Lohar’ from 1990 is evident, the caste certificate issued by the
\nExecutive Magistrate on 1.12.1991 cannot be taken as evidence to prove the
\ncaste of the respondent. The decision of this Court in R. Palanimuthu vs.
\nReturning Officer<\/a> [1984 (Supp.) SCC 77], supports this position. In Madhuri
\nPatil (supra), this court observed that when the school records show a
\nparticular caste, the caste certificates issued to the candidates and his
\nrelatives by the Executive Magistrate showing a different caste should be
\nignored.  Reference was also made to the caste certificate of two relatives.
\nBut they are also of the period subsequent to 1990 when respondent started
\nshowing that he belonged to Lohar caste. They have to be ignored as
\nobserved by this Court in Madhuri Patil (supra).\n<\/p>\n
27.\tIn view of the above, we are of the view that the appellant has clearly
\nestablished that the respondent and his family belong to Tarkhan caste which
\nis not a scheduled caste in Himachal Pradesh. It is also clear that from
\naround 1990, the respondent has made efforts to show his caste as ‘Lohar’, a
\nscheduled caste. Consequently, we hold that the respondent who did not
\nbelong to a Scheduled Caste, was not qualified to be chosen to fill a seat in
\nthe Legislative Assembly reserved for Scheduled Castes.\n<\/p>\n
28.\tTherefore, we allow this appeal, set aside the judgment of the High
\nCourt and declare the election of the returned candidate (Bodh Raj) from 35-
\nGangath Assembly Constituency in the 2003 Election, to be void. Parties to
\nbear their respective costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Desh Raj vs Bodh Raj on 30 November, 2007 Author: B . K.G. Bench: Cji K. Balakrishnan, R. V. Raveendran CASE NO.: Appeal (civil) 4676 of 2005 PETITIONER: Desh Raj RESPONDENT: Bodh Raj DATE OF JUDGMENT: 30\/11\/2007 BENCH: CJI K. G. Balakrishnan & R. V. Raveendran JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-28904","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDesh Raj vs Bodh Raj on 30 November, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/desh-raj-vs-bodh-raj-on-30-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Desh Raj vs Bodh Raj on 30 November, 2007 - 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