SATHI ROOP LAL Vs. MALTI THAPAR MRS

JUDGEMENT

(1.) This appeal is preferred by the unsuccessful petitioner who had filed an election petition challenging the election of Respondent I, the successfulcandidate, who was declared elected by a margin of seven votes on 20-2- 1992. Immediately after the counting was over and the appellant-petitioner realised that he was unsuccessful, he had preferred an application for re- a count on the ground that the margin was narrow and the number of rejected votes being fairly high, it was appropriate to meet the ends of justice to re- count the votes, and also because two ballot papers were lost. On this application, the Returning Officer passed an order on that very day, the relevant part whereof reads as under:

(2.) On behalf of the petitioner as many as 13 witnesses were examined whereas the respondent examined five witnesses. The main controversy was twofold, namely, whether the petitioner was entitled to inspection of ballot papers and re-count and whether the election of the first respondent was f vitiated on account of 22 bogus votes cast during the poll. The learned Judge in the High court answered both these contentions in the negative and dismissed the election petition and hence this appeal.

(3.) We have carefully perused the evidence adduced by the parties and the reasoning of the learned Judge in negativing both these contentions urged on behalf of the appellant-petitioner. Taking the second contention Q first, we find that the evidence adduced was that the voters' list contained 22 names of persons who had passed away and the attempt made was to show that bogus electors impersonated dead electors and cast their votes in favour of the elected respondent. The names of these 22 dead electors are to be found in Annx. P-9 appended to the petition. The evidence led in this behalf is of the Polling Agents of the appellant himself, namely, Public Witness 8 to Public Witness ii. Admittedly, they worked as the Polling Agents of the appellant and theirevidence is to the effect that they had tickmarked certain names of the electors in their copy of the electoral rolls. The learned trial Judge did not attach much importance to this evidence for the obvious reason that these polling Agents were interested witnesses and the tickmarking of their lists did not carry the case any further. On the other hand, the respondent examined Public Witness 4, Tehsildar (Elections) , and he went to the court with the election record in a sealed cover and after opening the same in the presence of the learned Judge, he stated that so far as the official record was concerned, the tickmarking was against four names only out of 22 and these four names were of Jamail Singh, Harbhajan Singh, Rajinder Kumar and 0m Parkash. With regard to the remaining names appearing in Annexure p-9, he deposed that since the original voters' list had not been tickmarked, it shows that none of them had cast their votes. In regard to even these four persons, the only evidence is that there was a tickmark against their names which means that someone had demanded the ballot paper, but there is no evidence that after obtaining the ballot paper that person had cast the vote. But the learned Judge has taken the view that even if it is assumed that these four persons had cast their votes in favour of the successful respondent, that had not materially affected the election because even then the successful candidate would have been declared elected by three votes. The second contention was thus rightly rejected.