MAHESH BAGHEL Vs. PHULODEVI NETAM

JUDGEMENT

(1.) PETITIONER was a candidate who contested the election from 148 Keshkal (Reserved for Scheduled Tribe) Legislative Assembly Constituency. He lost the election by a margin of 343 votes. This is an Election Petition under Section 80 of the Representation of the People Act, 1951 (henceforth "the Act") calling in question the election of returned candidate/Respondent No. 1 (Smt. Phulodevi Netam) filed by him. The Election Commission of India vide notification dated 30.10.1998 notified programme as below for election from the said assembly constituency:

(2.) PETITIONER in his election petition, inter alia, pleaded that on 23.11.1998, all the polling parties assembled at Keshkal to receive polling material and to move to their respective polling stations. Kisnu Ram Nag was appointed as Presiding Officer at Polling Station No. 10 of that constituency. He, along with his polling party reached the polling station before 12 noon on 23.11.1998. Dr. Devendra Kumar Netam was appointed as Presiding Officer at Polling Station No. 67 - Tenwsa, who reached there at about 1.00 p.m. on 23.11.1998. Indrajit Netam was appointed as Presiding Officer at Polling Station No. 122 - Sirpur and he reached along with his polling party at about 5.00 pm on 23.11.1998. On 23.11.1998 Respondent No. 1 reached Sirpur at about 6.00 pm and in the company of Dr. Devendra Kumar Netam went to the voters of village Sirpur and solicited their votes and requested to vote for her. On the same day at about 8.30 pm she went to Tenswa where in the company of Dr. Devendra Netam contacted the voters and they requested them to vote for Respondent No. 1. On the next day i.e. 24.11.1998 Respondent No. 1 in the evening at about 6.00 pm went to Keshkal and along with Kisnu Ram Nag approached the voters and requested them to vote for her. Respondent No. 1 for obtaining and procuring votes in her favour, took assistance of these officers and was succeeded in securing votes by adopting such a corrupt practice. In Keshkal Assembly constituency, a number of relatives of Respondent No. 1, who are holding government service, are posted and who were interested in the election. They were not removed from their posting despite written attempt made by the Petitioner. Respondent No. 1 opposed the application. She specifically denied the allegations of corrupt practice lodged against her by the Petitioner. Following are issues: In following paragraph for recording findings evidence has been appreciated and reasons are recorded. Findings are shown against each of the issue. Issue No. Issue Finding 1 Whether the relatives of Respondent No. 1 whose names are mentioned in paragraph - 5 of the Election Petition have actively participated in the campaign to further the prospect of Respondent No. 1 in the election? No. 2(a) Whether Respondent No. 1 committed corrupt practice as defined under Section 123(7) of the Representation of People Act and in the company of Dr. Devendra Kumar Netam went to the villages Sirpur and Tenswa and approached the voters on 23-11-1998 to seek votes for Respondent No. 1 as mentioned in paragraph 11 and 12 of the Election Petition ? No. 2(b) Whether Respondent No. 1 also in the company of Kishnuram Nag went to the village Keshkal and approached the voters on 24-11-1998 to cast votes in favour of Respondent No. 1?" No.

(3.) ASHOK Kumar (PW/2) in his statement stated that on 23.11.1998 Indrajit Markam and members of polling party asked Sukhlal Netam and Amit Verma to affix seal on "Panja Chap". In rebuttal, Indrajit Markam (DW/3) in his statement stated that after reaching polling station neither he left the polling station nor went to the village; he also denied that he canvassed in favour of Phulodevi. Phulodevi (DW/1) supports his statement. Ashok Kumar (PW/2) contested election twice, but, failed to state complete details of his own election. Sukhlal Netam and Amit Verma have not been examined. Ashok (PW/2) in cross examination states that he did not inform Mahesh Baghel that Indrajeet and others were asking Sukhlal and Amit to vote for Congress. In these circumstances, principle of preponderance of probabilities constrains me to disbelieve the evidence of Ashok Kumar (PW/2) and to accept the evidence adduced by other party in rebuttal. Shravan Yadav (PW/3) in his statement stated that in the evening at about 6.00 pm Kishnu Ram Nag, Phulodevi, Sahid and Tahir were canvassing for votes. They were making request to a Marvadi for casting vote. Kisnu (DW/4) in his statement has stated that on 23.11.1998 he received polling material; and thereafter within a gap of 10 to 15 minutes he reached to his centre. After reaching the centre, he did not left the polling station up to completion of the polling. His statement has been supported by Phulodevi (DW/1). He denies having canvassed along with Phulodevi. Shravan Yadav (PW/3) at one place says that he is not in politics, he did not contest any election, and in the other place he admits that he contested the election twice but lost. He is neighbour of the Petitioner. In view of the infirmities present in his statement, evidence of opposite party is accepted to be correct.