Abhay Singh vs Rakesh Singh @ Ghanshyam Singh

This election petition under Section 81 read with Section 80 of The Representation of the People Act, 1951, (hereinafter referred to in this judgment

as “the Actâ€) has been preferred by an elector from the Jabalpur Parliamentary Constituency No.13 challenging the election of respondent

Rakesh Singh on the ground that he adopted corrupt practices during election campaign.

The following facts in this election petition are either admitted or are not specifically denied. In all 15 candidates contested the election for

membership of Lok-Sabha from Parliamentary Constituency No.13-Jabalpur, including present respondent Rakesh Singh. The polling took place on

10.04.2014. Counting was held on 16.05.2014. On the same date, election result was declared and respondent Rakesh Singh was declared as the

returned candidate on the ticket of Bhartiya Janta Party by simple majority of votes poled. Petitioner Abhay Singh was an elector from Jabalpur

Parliamentary Constituency. His name was recorded in the electoral roll at Serial no.454 of Part no.19 of Assembly Constituency No.96-Bargi,

Jabalpur.

3 (a). Apart from aforesaid undisputed facts, the case of the petitioner may be summarized as hereunder: The election of the respondent is bad and

void and it is liable to be declared to be so by reason of the corrupt practices adopted by the respondent and/or his election agent and/or by other

persons with his or his election agent's consent. There has been callous non-compliance with the provisions of the Act, Conduct of the Election Rules,

1961 and the orders made thereunder by the Election Commission. Thus, the conduct of respondent squarely falls under the ambit of corrupt practices

as described under Section 123 (2) (a) (i) and (7) (d) of the Act.

3 (b). The particulars of the corrupt practices allegedly adopted by the respondent were as follows: The respondent was guilty of corrupt practice of

exercising undue influence by threatening the electors and intimidating the voters of at least 2 out of 8 Assembly Constituencies forming Parliamentary

Constituency No.13-Jabalpur, not to vote or to vote for him or to vote in a manner other than that provided by the law. Those 2 assembly

Constituencies were Bargi Assembly Constituency No.96 and Jabalpur-Rsdy (SC) Assembly Constituency No.97. At about 07:00 p.m. on 03.04.2014

at Village-Mankhedi (Tehsil-Shahpur, District-Jabalpur), respondent was seen and heard asking Smt. Pratibha Singh (BJP M.L.A. from Bargi

Assembly Constituency), her sons Golu Singh and Neeraj Singh to let loose a reign terror in Bargi Assembly Constituency. He asked them to use all

means including unfair to do so. They were assured by the respondent that he will see to it that no action is taken against them and their associates by

the Police Authorities or the District Administration, so that they would have free hand in terrorizing the voters. Thus, at the behest of the respondent,

Golu Singh and Neeraj Singh were seen roaming with their associates armed with guns and other arms terrorizing the Congress workers and voters in

the entire Bargi Assembly Constituency. Despite complaints to the police officers and District Administration, nothing was done due to pressure from

the respondent. This attitude of the Administration ultimately resulted in firing by Golu Singh and Neeraj Singh and others at Village-Mankhedi;

wherein, 5-6 workers of Congress Party were grievously injured. In aforesaid villages, electors were not able to exercise their constitutional right to

vote freely and fairly due to undue pressure, intimidation, threats and perils caused by the workers/supporters of BJP, at the behest of the respondent.

3 (c). At about 03:30 p.m. on 07.04.2014, Golu Singh opened fire upon the Congress workers at Village-Mankhedi, P.S.-Belkheda. He was

accompanied by Neeraj Singh, Pushpraj Singh, Yashpal Choudhary and Ramgopal Choudhary. The Congress workers namely Abhay Singh

(Petitioner), Rakesh Patel, Durjan Patel, Roopsingh Patel and Dhan Singh Thakur sustained serious injuries and were rushed to Medical College,

Jabalpur. At about 04:30 p.m. on 07.04.2014, the FIR was lodged against the aforesaid persons. At about 06:30 on 07.04.2014, the victims were

admitted to Metro Hospital, Jabalpur for gun-shot injuries.

3(d). Ithas further been pleaded that the respondent was also guilty of corrupt practice of seeking assistance from the Police Officers, which was

beyond the purview of what their official duties entailed. Respondent Rakesh Singh accompanied by Shri Sharad Jain, Cabinet Minister in Government

of M.P. and BJP M.L.A. from Bargi Assembly Constituency, Smt. Pratibha Singh, along with other supporters staged a protest at P.S.-Belkheda on

8.4.2014. During aforesaid protest, Additional S.P., Mahesh Jain was pressurized by respondent Rakesh Singh, Cabinet Minister Sharad Jain and

M.L.A. Smt. Pratibha Singh to delete the name of accused Neeraj Singh from the FIR and also to lodge a counter FIR against the victims including

the present petitioner. Under threat from the respondent, the Additional S.P., Mahesh Jain decided that name of Neeraj Singh will be deleted from the

FIR and a counter FIR would be lodged against the victims. The respondent also made the Addl. S.P. to talk with Neeraj Singh on mobile phone and

assure him that his name would be deleted from the FIR and a counter FIR would be lodged against the victims. The entire incident relating to the

protest staged by the respondent and his supporters was video-graphed by one Ajeet Tiwari. On the next day, Ajeet Tiwari was called by Additional

S.P., Mahesh Jain to his office. Additional S.P. insisted that Ajeet Tiwari handover the memory card; wherein, the incident was recorded, to the

Additional S.P.. In spite of resistance by Ajeet Tiwari, memory card containing the video of the incident, which has taken place on 08.4.2014, was

taken away by the Additional S.P. and was replaced by a blank memory card in the camera of Ajeet Tiwari. However, Ajeet Tiwari had prepared a

compact disc of the incident before parting with the memory card but this fact was not within the knowledge of Additional S.P., Mahesh Jain. The

petitioner has filed unedited compact disc prepared by Shri Ajeet Tiwari with the election petition and also gave transcript of aforesaid conversation in

the petition. Thus, the respondent had sought illegal assistance from the police officers for furtherance of his prospects in the election. As such, he had

indulged in corrupt practice; therefore, it has been prayed that the election of the respondent Rakesh Singh from Parliamentary Constituency No.13,

Jabalpur be declared void on the ground of aforesaid corrupt practices adopted by him.

In his reply, the respondent had objected to the admissibility of the compact disc filed along with the election petition purportedly containing the

video of the incident involving Additional S.P., Mahesh Jain on the ground that the petitioner had not complied with the provisions of Section 65B (4)

of the Evidence Act, 1872. It has been specifically denied that the respondent and/or his election agent resorted to any corrupt practices in the

election. It has been stated that the respondent was elected Member of Lok-Sabha from Parliamentary Constituency No.13, Jabalpur for the 3rd

consecutive term by defeating his nearest rival Shri Vivek Tankha, the Congress candidate, by a huge margin. It has further been averred that the

petitioner has not stated a single instance of non-compliance with the provisions of the Act of 1951 or the Conduct of Election Rules, 1961 or the

orders made thereunder by the Election Commission. It was specifically denied that the respondent visited VillageMankhedi on 03.04.2014 and met

Smt. Pratibha Singh and her sons Neeraj Singh and Golu Singh or at any other place in Bargi Assembly Constituency. It was also specifically denied

that he asked aforesaid persons to let loose their terror in Bargi Assembly Constituency in order to have a favourable result in the election. As per the

schedule of the respondent, he was in Bhedaghat area, which was approximately 40-45 kms. away from Village-Mankhedi, on the relevant date. He

never visited Mankhedi or any other village falling under the Bargi Assembly Constituency on 03.04.2014, 04.04.2014, 05.04.2014 or 06.04.2014. It

has been specifically denied that at the behest of the respondent, Golu Singh and Neeraj Singh and their associates roamed free with guns and other

arms terrorizing the Congress workers in Village-Mankhedi. In fact, during election campaign, respondent had no business with Neeraj Singh and Golu

Singh. They were neither instructed nor told by the respondent even to campaign for him or for his political party. It has further been specifically

denied that the alleged incident of firing by Golu Singh and Neeraj Singh and their associates, which is said to have taken place at Mankhedi on

07.4.2014, was at the behest or instance of the respondent. It has also been denied that the respondent pressurized the District Administration and

Police Authorities in any manner whatsoever, to remain inactive in respect of the alleged incident of firing. It has also been denied that respondent

interfered with free and fair exercise of the constitutional right of the voters of Bargi and Jabalpur Assembly Constituencies, to vote. No such

complaint was made by any voter, candidate or election agents to Election Commission, any authority or the police. It has also been denied that on

08.04.2014, respondent along with Shri Sharad Jain, Smt. Pratibha Singh and their supporters staged a protest at P.S.-Belkheda, where they

pressurized the Additional S.P., Mahesh Jain to delete the name of Neeraj Singh from the FIR and register a counter FIR against alleged victims of

the incident. It has also been denied that any compact discs of any such incident was prepared by one Ajeet Tiwari. The transcript of the

conversation, which is alleged to have taken place between the respondent, Shri Sharad Jain and Smt. Pratibha Singh on one hand and Additional S.P.,

Mahesh Jain on the other, has been specifically denied. It has also been denied that for want of knowledge that the memory card containing the video

of such incident was taken away from Shri Ajeet Tiwari by Additional S.P., Mahesh Jain; as such, the respondent never indulged in any corrupt

practices. The election petition is false and frivolous; therefore, it has been prayed that the petition be dismissed.

On the basis of pleadings of the parties and documents filed by them, following issues were framed. The conclusions of the Court are recorded

against each of them. Issues

Issues Findings

(1) (a) Whether on 7-4-2014, at the behest, instigation and assurance of protection from the respondent, Golu Singh and Neeraj, sons of Bargi M.L.A.

Pratibha Singh and others roamed around in Village-Mankhedi, Badcheri, Chargawan and Chatiaghat of the Constituency and opened fire on workers

of Indian National Congress and grievously injured them, resulting in denial of constitutional right of voters of that party to vote freely and fairly?

(b) Whether the respondent, M.L.A. Sushree Pratibha Singh and Minister in the State Cabinet, Shri Sharad Jain had pressurized or illegally influenced

Additional S.P., Shri Mahesh Chandra Jain to delete the name of aforesaid Neeraj and register counter F.I.R. against victims including the petitioner?

(c) Whether at the behest of the respondent, Shri Mahesh Chandra Jain had illegally obtained memory card containing videorecording of conversation

between Shri Mahesh Chandra Jain, Shri Sharad Jain and the respondent from Shri Ajeet Tiwari?

(2) Whether all or any of the aforesaid acts and conducts on the part of the respondent or other persons with the consent of respondent, falls under

the purview of corrupt practices?

(3) Relief and costs? Not proved.

Not proved.

Not proved.

Acts and conduct not proved.

Petition dismissed with costs.

Issue No.(1) (a) - Whether on 07-04-2014 at the behest, instigation and assurance of protection from the respondent, Golu Singh and Neeraj, sons

of Bargi M.L.A., Pratibha Singh and other roamed around in Village-Mankhedi, Badcheri, Chargawan and Chatighat of the Constituency and opened

fire on workers of Indian National Congress and grievously injured them, resulting in denial of constitutional right of voters of that party to vote freely

and fairly?

The burden of proving this issue was upon the petitioner.

Before adverting to evidence adduced by the parties on this issue, it would be appropriate to refer to relevant part of Section 123 of the Act, which

reads as hereunder:

Corrupt Practices

Corrupt practices.â€"The following shall be deemed to be corrupt practices for the purposes of this Act:â€

(1)*****

(A)*****

(a) *****

(b) *****

(i) *****

(ii) *****

(B)*****

(a) *****

(b) *****

(2)Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other

person with the consent of the candidate or his election agent, with the free exercise of any electoral right:

Provided thatâ€

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein whoâ€

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social

ostracism and excommunication or expulsion from any caste or community; or

(ii) *****

(b)*****

3A*****

3B*****

(4) *****

(5) *****

(6) *****

(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a

candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election,

from any person in the service of the Government and belonging to any of the following classes, namely:â€" (a)*****

(b) *****

(c) *****

(d) members of the police forces;

(e) *****Â Â

(f) *****

(g) *****

(h) *****

(8) *****

The pleadings of the petitioner with regard to issue no.1 (a) is in two parts. In the first part, there is incident, which is alleged to have taken place at

about 07:00 p.m. on 03.04.2014, at Village-Mankhedi where the respondent is said to have asked Smt. Pratibha Singh and her sons Neeraj Singh and

Golu Singh to let loose their reign of terror in Bargi Assembly Constituency and to use all means to that end including unfair means. We may note that

there is only oral evidence of the petitioner’s witnesses to support the aforesaid incident. Petitioner Abhay Singh has stated in this regard that at

about 07:00 p.m. on 03.04.2014, he was at the bus-stand in VillageMankhedi and were canvassing for the Indian National Congress. He was

accompanied by other workers namely Durjan Patel, Rakesh Patel, Vimal Vishwakarma, Neelesh Patel and other persons. At that time, respondent

Rakesh Singh reached the spot. He was accompanied by Smt. Pratibha Singh and her sons Golu Singh and Neeraj Singh. Other workers of their party

namely Yashpal Singh, Ramgopal Choudhary and Pushpraj Singh etc. were also present with them. Neeraj Singh was the Chairman of Shahpura

Mandi. At that place, respondent Rakesh Singh said that these Congress workers are canvassing. They must somehow be stopped, no matter how.

He would manage whatever happens in future. Respondent Rakesh Singh told sons of Smt. Pratibha Singh that you let loose your terror. See that this

election is not spoilt. These people must somehow be stopped. He would manage the police. Abhay Singh (PW-1) has further stated that they

overlooked aforesaid extortation by the respondent. This dialogue was delivered in such a manner, so that Congress workers would hear that. The

statement of Abhay Singh (PW1) in this regard is corroborated by Durjan Patel (PW-2). He has stated that at aforesaid time, date and place and in

the presence of aforesaid persons, respondent Rakesh Singh asked sons of Smt. Pratibha Singh as to what are they doing ? These Congress men are

spoiling their game. Stop them at any cost? He will manage whatever happens. Stop them, no matter what is required to be done, spend money, beat

them up but stop them. Durjan Patel (PW-2) has also stated that respondent Rakesh Singh said that he would speak to the police, they are their

people. After delivering aforesaid dialogue, the respondent went away.

Respondent Rakesh Singh (DW-1) has stated that all his public meetings were peaceful and no untoward situation arose in any of his public

meetings and programmes. He cannot state anything with regard to any dialogue that is said to have taken place on 03.04.2014, without any context.

He does not remember whether he had gone to Village-Mankhedi on 03.04.2014 or not. He was not acquainted with Neeraj Singh and Golu Singh

since before the election. Petitioner Abhay Singh (PW-1) has further stated that for next 2-3 days, Golu and Neeraj Singh etc. roamed about in the

villages armed with weapons. They used to terrorize the workers and used to stop the Congress workers from campaigning. They used to pressurize

public so that the public would vote for BJP. They used to terrorize and intimidate the voters by saying that they have the government and they have

the power. He complained about the matter to Town Inspector of P.S.-Belkheda. He assured that he would look into the matter but he did nothing. In

this regard, Durjan Patel (PW-2) has stated that they had complained about the matter to Town Inspector of P.S.Belkheda; however, he made light of

the matter and said that this is nothing, this is election and such things do happen in elections.

Second part of the incident is alleged to have taken place on 07.04.2014. Petitioner Abhay Singh (PW-1) states in this regard that at about 01:00

p.m. on 07.04.2014, he was campaigning in Village-Baseri along with other party workers. At that time, Golu Singh and Neeraj Singh accompanied by

other B.J.P. workers arrived. Golu Singh etc. blocked their vehicles; whereon, he informed the Congress candidate Shri Vivek Tankha, who assured

him that he will speak to S.P.. Shri Tankha asked his workers to wait. About 20-25 minutes later, Belkheda police reached the spot. The police

separated the vehicles of Golu Singh and Neeraj Singh etc. from those of Congress workers. Thereafter, the Congress workers left the spot and

reached Mankhedi via Sunderdehi. Durjan Patel (PW2) has stated in this regard that at aforesaid time, date and place, they were sitting in the house

of former Sarpanch. They were told by people that Golu Singh and Neeraj Singh and others have blocked their vehicles in such a manner that there

was no way left. Abhay Singh informed regarding the matter to Shri Vivek Tankha, who assured that he would speak to S.P. About half an hour later,

Belkheda police reached the spot and separated the vehicles of two sides.

Abhay Singh (PW-1) submits that at about 03:30 p.m., the same day, he was with Durjan Patel, Rakesh Patel, Neelesh Patel, Vinod Nayak and

other persons. No sooner they got down from their vehicles, Golu Singh, Neeraj Singh and Pushpraj Singh came from behind armed with guns. They

were accompanied by Yashpal Choudhary and Ramgopal Choudhary. Golu Singh fired from behind. Only one gun shot was fired, which contained

pellets. He, Durjan Patel, Rakesh Patel, Dhansingh, and Neelesh Patel received pellet injuries. The situation turned chaotic. Aforesaid part of the

statements of Abhay Singh (PW-1) has been corroborated by Durjan Patel (PW-2). He has further stated that he was hit by 9 pellets. Rakesh Singh

was hit by 12 pellets and Abhay Singh was hit by 2 pellets. In addition thereto, Neelesh and Dhansingh also sustained pellet injuries. He had sustained

pellet injuries to his mouth. As a result, his clothes were stained with blood. Golu Singh had fired upon them due to electoral enmity. They did not want

that anyone should campaign for Congress in that area. In this regard Sarvesh Singh (PW-3) has stated that at about 2-3 p.m. on 7.4.2014 he was at

Mankhedi. At that time Golu Singh and Niraj Singh, sons of MLA Pratibha Singh had fired upon Congress men including Abhay Singh. Thereafter,

they had taken Abhay Singh to Medical College.

Abhay Singh (PW-1) and Durjan Patel (PW-2) have further stated that they were taken by their companions to Medical College, Jabalpur where

they were admitted. The police had reached the Medical College, Jabalpur. He had lodged FIR (Ex.P/3). (The original FIR has been placed on the

record of S.T. No.600/2014 pending in the Court of V ASJ, Jabalpur). Durjan Patel (PW-2) has further stated that the effect of aforesaid incident

was that all voters were terrified and respondent Rakesh Singh won the election

Now, the question that arises for consideration is, how much credence should be attached to the statements of petitioner Abhay Singh (PW-1) and

Durjan Patel (PW-2) and Sarvesh Singh (PW-). In this regard, learned counsel for the petitioner submits that there is no rule of law or prudence that

oral evidence has to be discarded in all cases involving corrupt practices in election matters. To buttress aforesaid contention he has invited attention

of the Court to the judgment rendered by the Supreme Court in the case of Pratap Singh Vs. Rajinder Singh and anr. AIR 1975 SC 1045; wherein, it

has been held that:

The fifth ground of objection set out above seems to proceed on the erroneous assumption that oral testimony cannot be accepted when a corrupt

practice is set up to assail an election unless it is corroborated by other kinds of evidence in material particulars. We are not aware of any such

general inflexible rule of law or practice which could justify a wholesale condemnation or rejection of a species of evidence which is legally admissible

and can be acted upon under the provisions of Evidence Act in every type of case if it is, after proper scrutiny, found to be reliable or worthy of

acceptance. There is no presumption, either in this country or anywhere else, that a witness, deposing on oath in the witness box, is untruthful unless

he is shown to be, indubitably, speaking the truth. On the other hand, the ordinary presumption is that a witness deposing solemnly on oath before a

judicial tribunal is a witness of truth unless the contrary is shown.

It is not required by our law of evidence that a witness must be proved to be a perjurer before his evidence is discarded. It may be enough if his

evidence appears to be quite improbable or to spring from such tainted or biased or dubious a source as to be unsafe to be acted upon without

corroboration from evidence other than that of the witness himself. The evidence of every witness in an election case cannot be dubbed as intrinsically

suspect or defective. It cannot be equated with that of an accomplice in a criminal case whose testimony has. according to a rule of practice though

not of law to be corroborated in material particulars before it is relied upon.

Per contra, learned senior counsel for the respondent has placed reliance upon the judgment rendered by the Supreme Court in the cases of

M.J.Zakharia Sait Vs. T.M. Mohammed (1990) 3 SCC 396, Thakur Sen Negi Vs. Dev Raj Negi, 1993 (suppl.) 3 SCC 645 and Narender Singh Vs.

Mala Ram (1999) 8 SCC 198. Learned senior counsel for the respondent has contended that the Supreme Court has repeatedly cautioned against

acceptance of uncorroborated oral evidence in election matters, especially those involving corrupt practices. In the case of M.J.Zakharia Sait (supra),

the Supreme Court has held as follows:

70.Time and again, the courts have uttered a warning against the acceptance of a non-corroborated oral testimony in an election matter because it is

not only difficult to get a non-partisan witness but is also easy to procure partisan witnesses in such disputes. The courts have, therefore, insisted upon

some contemporaneous documentary evidence to corroborate the oral testimony when in particular such evidence could have been maintained. The

dangers of accepting only the oral testimony are illustrated by this witness.

It has been held by the Supreme Court in the case of Thakur Sen Negi (supra) that:

How an election court should evaluate the evidence in such a situation has been stated time and again by this Court. It would be sufficient if we

extract a passage from this Court’s decision in Rahim Khan v. Khurshid Ahmed which reads thus:

“We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or

indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a-dozen witnesses apparently respectable

and disinterested, to speak to short and simple episodes such as that a small village meeting took place where the candidate accused his rival of

personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the court were gullible enough to gulp such oral

versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as

extremely unsafe, in the present climate of Kilkenny-cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won

electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The court must look for serious

assurance, un-lying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the

election result, but extinguish many a man’s public life.â€​

Since allegations in regard to corrupt practice are quasi-criminal in nature and entail the penalty of disqualification, the court would be justified in

looking for strong and dependable evidence and its refusal to base its decision on oral evidence alone would not be unjustified if the said evidence is

not supported by strong, reliable and trustworthy corroboration.

Likewise, in the case of Narender Singh (supra), the Supreme Court has held as follows:

In the matter of appreciation of evidence in election disputes certainprinciples have been stated by this Court. The general principle is that the onus

to prove the essential facts which constitute the cause of action in an election petition is upon the person making it, namely, the election petitioner.

What evidence would be sufficient to prove a particular fact depends upon the circumstances of each case. When the evidence adduced is capable of

drawing an inference either way, the view that is favourable to the returned candidate will have to be preferred. In Ram Singh v. Col. Ram Singh1 the

principle set out by this Court, by majority, is as follows: (SCC p. 616, para 3)

“[I]n borderline cases the courts have to undertake the onerous task of, ‘disengaging the truth from falsehood, to separate the chaff from the

grain’. In our opinion, all said and done, if two views are reasonably possible â€" one in favour of the elected candidate and the other against him

â€" courts should not interfere with the expensive electoral process and instead of setting at naught the election of the winning candidate should

uphold his election giving him the benefit of doubt. This is more so where allegations of fraud or undue influence are made.â€​

In election disputes emotions of the public are raised and opinions aresharply divided between groups. In such circumstances oral testimony in

favour of one or the other party is easy to be adduced but the same will have to be critically examined and, therefore, oral evidence is to be assessed

with a great deal of care.

Fromaforesaid pronouncements following legal position may be culled out. There is no general inflexible rule of law or practice which permits

wholesale rejection of oral evidence which is otherwise legally admissible under the provisions of the Evidence Act. However, as a matter of caution,

the Court should look for contemporaneous documentary evidence or sure circumstances to lend assurance to its findings. Such oral evidence must be

closely scrutinized to see whether it springs from partisan sources? Such testimony has to be scrutinized with utmost care and caution.

Learned counsel for the petitioner has also submitted in this regard that the respondent has not specifically denied the incident that is said to have

taken place at about 7:00 p.m. on 3.04.2014; wherein, he is said to have exhorted Golu Singh and Neeraj Singh and their cohorts to let loose their reign

of terror in Bargi Assembly Constituency. He submits that all that respondent has stated in rebuttal is that he does not remember whether he had gone

to Mankhedi on 03.04.2014. He has also meekly stated that without any context, he cannot tell about any conversation involving him at Mankhedi on

03.04.2014; therefore, it has been prayed that the oral testimony of witnesses Abhay Singh (PW-1) and Durjan Patel (PW-2) should be accepted. In

support of this contention, learned counsel for the petitioner has placed reliance upon the judgment rendered by the Supreme Court in the cases of

Kalamata Mohan Rao v. Narayana Rao Dharmana and others, AIR 1996 SC 535; wherein it has been observed that :

Moreover, there is no evidence in rebuttal thereof, inasmuch as even the appellant did not enter the witness box to deny the allegations made against

him. The unrebutted evidence led in support of the election petition is sufficient to prove that the act of putting up these posters at different places in

the constituency as alleged has been duly proved.

He has also invited attention of the Court to the judgment rendered by this High Court in the case of M.P. Badalkar vs. Smt. Shamta Sarojini

Badalkar and another, AIR 1988 MP 319. Paragraph No.4 of the judgment reads as hereunder:

4. After having heard the learned counsel for the petitioner and on examination of the record, we are satisfied that the decree nisi for dissolution of

marriage has been rightly passed by the trial Court. There is no reason why the statements of the petitioner and his son should not be accepted. The

evidence so recorded on behalf of the petitioner has gone unrebutted and there is no evidence to the contrary. We are also satisfied that there is no

collusion between the parties. As has been held in Lalit v. Lavina, AIR 1979 Madh Pra 70 (FB) the only requirement to prove the case by the

petitioner is by preponderance of probabilities and the degree of probability depends on the gravity of the offence. We are satisfied that the petitioner

has been able to prove his case.

In this regard, learned counsel for the respondent submits that the alleged exhortation by the respondent at Mankhedi on 03.04.2014, has been

specifically denied in the written statement of the respondent. He further contends that the Supreme Court in the cases of F.A. Sapa vs Singora and

others, AIR 1991 SC 1557, Pratap Singh (supra) and a catena of other has held that allegation of corrupt practice being quasi-criminal in nature, has to

be proved beyond reasonable doubt and not merely by a preponderance of probabilities. Inviting attention of the Court to the judgment rendered by the

Supreme Court in the cases of Ram Singh Vs. Col. Ram Singh 1985 Supp. SCC 611 and Narendra Singh (supra), it has been contended by learned

counsel for the respondent that when evidence adduced is capable of drawing an inference either-way, the view that is favourable to the returned

candidate, will have to be preferred.

When we examine the evidence available on record in respect of Issue No.1(a), we find that there is no documentary evidence to support the

incident that is said to have taken place on 03.04.2014 at village Mankhedi. Only testimony of petitioner's witnesses Abhay Singh (PW-1) and Durjan

Patel (PW-2) is available. Abhay Singh is petitioner himself. He has admitted in paragraph no.2 of the deposition that he is a worker of the Congress

Party and on 03.04.2014 he was campaigning for Indian National Congress at Mankhedi bus stand on the directions of the Congress candidate, with

others. Durjan Patel (PW-2) has stated that he is acquainted with petitioner Abhay Singh because he is social and political worker of Congress Party.

He has also admitted in paragraph no.7 that he was also a Congress worker. Thus, both of these witnesses, who are said to have witnessed the

incident involving exhortation by respondent, spring from the partisan, if not tainted source. Abhay Singh (PW-1) admits in paragraph no. 11 that he did

not lodge a written report of the incident dated 3.4.2014. either with Congress candidate or Election Authorities or to the police. It is very easy to

procure oral evidence of such witnesses to allege a corrupt practice. Moreover, it appears highly improbable that in this age of easily available video-

recording equipment like mobile phones, an experienced campaigner like the respondent, who had already won two Lok Sabha Elections, would openly

indulge in such talk so as to create evidence against himself and provide a ready-made tool to his adversaries to assail him. It may be also be noted

that no written report of any such incident made to any of the authorities has been proved by the petitioner. In these circumstances, oral testimony of

petitioner's witnesses Abhay Singh (PW-1) and Durjan Patel (PW-2) is not worthy of credence. Thus, the petitioner has failed to prove that the

respondent had exhorted Golu Singh and Neeraj Singh and their supporters to terrorize the Congress workers and voters of Bargi Assembly

Constituency to vote for Bharatiya Janta Party candidate.

The second part relates to firing of a gun-shot by Golu Singh upon Congress workers Abhay Singh, Durjan Patel etc. In aforesaid incident, apart

from petitioner Abhay Singh, Congress workers Durjan Patel, Rakesh Patel, Dhan Singh and Neelesh Patel were said to have sustained pellet injuries.

The injured were taken to Medical College and first information report (Ex.P/3) was lodged by petitioner Abhay Singh, which was registered in

respect of aforesaid incident. A Sessions Trial arising from the incident being S.T. No.600/2014, is pending in the Court of V Additional Sessions

Judge, Jabalpur. However, Durjan Patel (PW-2) has admitted in his crossexamination that there is a counter-case also pending in the matter in

which one Tehsildar Singh is said to have suffered bullet injury. He is also an accused in aforesaid case and has been released on bail. Thus, from the

evidence available on record, it is clear that an incident involving firing had taken place on 07.04.2014 in village Mankhedi. In respect of aforesaid

incident, two counter cases are pending before the Court of Session lodged by rival parties. However, respondent Rakesh Singh was not said to have

been present on the spot; therefore, this by itself, is not sufficient to establish complicity of the respondent in the incident of firing. The respondent is

sought to be implicated in the aforesaid incident on the basis of undue influence he is said to have exercised along with Shri Sharad Jain, Cabinet

Minister and Sushri Pratibha Singh, Bargi MLA upon Additional SP Shri Mahesh Chandra Jain. Therefore, this incident would be considered along

with Issue No.1(b).

 23. Issue No.1(b)

Whether the respondent, M.L.A. Sushri Pratibha Singh and Minister in the State Cabinet Shri Sharad Jain had pressurized or illegally influenced Addl.

S.P. Shri Mahesh Chandra Jain to delete the name of aforesaid Neeraj and register counter F.I.R. against victims including the petitioner ?

The burden of proving this issue was also upon the petitioner. In this regard, Sarvesh Singh Thakur (PW-3) has submitted that he is a student. On

08.04.2014, police station at Belkheda was gheraoed (surrounded) by the supporters of Bhartiya Janta Party. Ajeet Tiwari (PW-5) submitted that he is

an independent videographer. He learnt at about 3:00 p.m. on 07.04.2014 that P.S. Belkheda is proposed to be gheraoed; therefore, he reached the

spot. Both of aforesaid witnesses have stated that respondent Rakesh Singh, Minister Sharad Jain and MLA Sushri Pratibha Singh were present and

participated in aforesaid gherao. Sarvesh Singh Thakur (PW-3) has stated that at that time respondent Rakesh Singh was asking Minister Sharad Jain

as to what kind of policemen were these? They had registered cases against their own people.

Rakesh Singh had asked Sharad Jain to tell the policemen to remove certain sections from the case. About an hour later, one Superintendent of

Police Jain arrived. He heard Minister Sharad Jain telling Superintendent of Police Shri Jain to remove the names of Golu Singh and Neeraj Singh;

whereon, Minister Sharad Jain asked Superintendent of Police Shri Jain to assure Golu Singh that he would delete sections. The Minister also asked

Shri Jain to register a case against the Congressmen. Ajeet Tiwari (PW-5) has stated in this regard that respondent Rakesh Singh had asked

Minister Sharad Jain to tell Additional SP to hush up, whatever the matter was (Mamle jo bhi ho, rafa-dafa karo). Respondent Rakesh Singh called

Neeraj Singh on phone. Thereafter, respondent Rakesh Singh told Additional SP that Neeraj Singh is afraid. After that respondent Rakesh Singh

handed over mobile phone to the Additional SP, who spoke on phone and said that whatever be the case, the staff would manage. The matter would

be hushed up. Pratibha Singh asked Additional SP to register a case against petitioner Abhay Singh of the other party as well. Ajeet Tiwari (PW-5)

has further stated that he was equipped with a video camera and had recorded the entire incident that had taken place at 3:00 p.m. on 08.04.2014.

After returning from the police station, he prepared a compact disc of the recording. Thereafter, at about 8:00 or 9:00 p.m. on 08.04.2014, he received

a phone call from petitioner Abhay Singh asking about the CD. Abhay Singh told Ajeet Tiwari that he wanted to see the CD. Thereafter, he went to

Abhay Singh with the CD and gave it to him.

Respondent Abhay Singh has denied that he ever pressurized the police to delete the names of Golu and Neeraj from the first information report.

He has also denied the fact that election results were materially altered because he had pressurized the police authorities.

At the outset, it may be noted that the compact disc allegedly prepared by Ajeet Tiwari (PW-5) recording the incident that had taken place at

P.S. Belkheda on 08.04.2014, was not admitted in evidence because it did not comply with the provisions of Section 65-B (4) of the Evidence Act;

therefore, only oral evidence with regard to aforesaid incident is available. It consists of the statements of aforesaid two witnesses namely Sarvesh

Singh (PW-3) and Ajeet Tiwari (PW-5). As has been observed in preceding paragraphs, the testimony of aforesaid two witnesses is required to be

meticulously scrutinized before placing reliance thereon. Both of the witnesses claimed that they were present on the spot and heard the conversation

between respondent Rakesh Singh, Cabinet Minister Sharad Jain and Bargi MLA Pratibha Singh on one hand and Additional SP Mahesh Chandra

Jain on the other. A comparative reading of the deposition of aforesaid two witnesses reveals that their statements with regard to the actual

conversation that had taken place differ materially. They are said to have heard the conversation clearly in spite of presence of 400-500 people, who

were shouting slogans on the spot. As per Sarvesh Singh (PW-3) the conversation related to lament by respondent Rakesh Singh that policemen had

registered cases against their own people; therefore, at least some sections should be deleted; whereas, Ajeet Tiwari (PW-5) has stated that the

respondent had asked the Additional SP to assure Neeraj Singh that the matter would be sorted out. Though, both have claimed that Additional SP

was pressurized to register case against petitioner Abhay Singh as well but Sarvesh Singh has maintained that this pressure was exerted by Minister

Sharad Jain whereas Ajeet Tiwari has stated that this pressure was exerted by MLA Pratibha Singh. Pleadings of the petitioner in this regard tell a

different story. In paragraph no.13 the transcript of conversation between aforesaid persons at village Belkheda has been reproduced which reads as

hereunder:

jkds'k flag % okjaV dVok fn;kA vfr ,l ih % ugh irk dksVZ es x;k Fkk mles uhjt dk uke ugh gSA mldks jksdk x;k esjs Qksu ij ;s eSus uke pawfd fy[kk

x;k gS FIR esa oSls fdlh dk Hkh fy[kk ldrs gS exj oks vkneh without doubt ?kVukLFky ij ugh FkkA gekjk

T.I. ml ckr dk xokg gSA

'kjn tSu % rks mu nksuks ckr ls vki lger gSA ,d rks ts fd FIR gks jgh gSA vfr ,l ih % fcYdqy gks jgh gSA

'kjn tSu % vkSj nwljh fd uhjt dk uke ugh gSA jkds'k flag % gks xbZ gS vki crk jgs gSA

vfr ,l ih % gks xbZ gSA vc rks Zero ij vk;sxh ;gka ijA

'kjn tSu % uhjt dk uke ugh gSa vfr ,l ih % uhjt dk uke mUgksus fy[kk;k ysfdu uhjt dk bl ?kVuk es 'kkfey gksuk gekjh jkds'k flag % mUgksus fy[kk;k

gSA

vfr ,l ih % F.I.R. esa fy[kk;k gSA ysfdu uhjt dk 'kkfey gksuk tks izkjfEHkd :i ls pawfd gekjk Fkkuk izHkkjh ogka ekStwn FkkA

'kjn tSu % vki tks izdj.k cuk jgs gS mles uhjt eqtfje ugh gS vfr ,l ih % ugh 'kjn tSu % [kRe ckr jkds'k flag eksckbZy ij uhjt flag ls ckr uhjt ;s Add.

S.P. vk x;s gSA bUgksaus uke rqEgkjk fy[kk;k gS ysfdu ;g dg jgs gS fd ftEesnkjhiwoZd eS bl ckr fd uhjt uke fy[kk;k ugh gSA ysfdu F.I.R. gS eqdnek

ugh ekeyk nwljk oks okyh F.I.R. gks xbZ gS dk;eh gks xbZ gS ogka ls ;gka vk;sxh ogka dkih fey tk;sxk dh F.I.R. ,d feuV tjk le> yks bulsA vfr ,l ih %

gka ikVZujA ;gka tSls vk;sxh ;gka Fkkus dk uEcj p;gka ij ugh gksA^^

It has been alleged in the pleadings that Additional SP has said that though Neeraj Singh has been implicated in the case, the Town Inspector was

present on the spot and he has asserted that Neeraj Singh was not present; therefore, they would not register a case against Neeraj Singh. Thereafter,

at the instance of Rakesh Singh, Additional SP spoke on mobile phone with Neeraj Singh and assured him that policemen would depose that Neeraj

Singh was not present on the spot. In aforesaid transcript, there is nothing which suggests that either of three persons namely Rakesh Singh, Sharad

Jain and Pratibha Singh pressurized the Additional SP to also register counter-case against Congressmen.

In aforesaid circumstances, it is obvious that the statement of neither Ajeet Tiwari (PW-5) nor the statement of Sarvesh Singh (PW-3) are

reliable. Even if it is assumed for the sake of arguments that the conversation as alleged in paragraph no.13 of the pleadings took place, it is clear that

no undue pressure was exerted upon the Additional SP. He merely apprised the respondent regarding the factual situation as seen on the spot by the

Town Inspector. He also reassured a person on mobile phone, who he thought to be innocent, at the instance of the respondent. Thus, the incident that

is said to have taken place at P.S. Belkheda at 3:00 p.m. on 08.04.2014 has also not been proved beyond reasonable doubt, in the manner alleged in

the pleadings of the petitioner.

 28. Issue No.1(c)

Whether at the behest of the respondent, Shri Mahesh Chandra Jain had illegally obtained memory card containing video-recording of conversation

between Shri Mahesh Chandra Jain, Shri Sharad Jain and the respondent, from Shri Ajeet Tiwari ?

The burden of proving this issue was also on the petitioner. The only witness that has been produced in this regard is videographer Ajeet Tiwari (PW-

5). He stated that on 09.04.2015, a police constable came to him and told him that Additional SP has called him; whereon, he went to Additional SP

with his camera. The Additional SP asked him whether he had videographed the incident of gherao of police station on eighth? He replied in

affirmative. The Additional SP again asked whether he had videographed the incident by the same camera? He again replied in affirmative.

Thereafter, the Additional SP took the camera from him and took out the memory card which contained video recording of the incident and replaced it

with a new one. Thereafter, he returned.

Now the question that arises for consideration is whether oral statement of Ajeet Tiwari (PW-5) is reliable ?

It may be noted that he is a professional independent videographer who did video recording for Congress candidate Shri Tankha as well as BJP

candidate respondent Rakesh Singh, yet he allowed the Additional SP to remove such important memory card from the camera without any protest or

resistance. He neither reported the incident to police nor to the Election Commission. He did not complain to media either. He did not give the CD of

the incident he had prepared to anyone other than the present petitioner. Therefore, his statement cannot be relied upon. Even if it is assumed for the

sake of arguments that Additional SP Mahesh Jain had indeed replaced memory card in aforesaid manner, there is nothing on record to indicate that

he did so at the instance of, at the behest of or with the consent of respondent Rakesh Singh or his election agent. It is quite probable that he did so

in order to protect himself against any legal action or departmental proceedings. At any rate, complicity of respondent Rakesh Singh in the alleged

incident relating to replacement of memory card, has also not been established beyond reasonable doubt. Thus, the petitioner has also failed to prove

Issue No.1(b)(c).

 31. Issue No.2

Whether all or any of aforesaid acts and conduct on the part of the respondent or other persons with the consent of respondent, falls under the

purview of corrupt practices ?

Since, this issue has been considered along with Issue Nos.1(a)(b)(c), no separate discussion on this issue is necessary.

As such, the petitioner has failed to prove any of the issues involved in this election petitioner; therefore, this election petition deserves to be

dismissed.

 33. Relief and costsÂ

(1) Consequently, this election petition preferred by Elector Abhay Singh challenging election of returned candidate respondent Rakesh Singh as a

member of Parliament from Parliamentary Constituency No.13-Jabalpur is hereby dismissed.

(2) The Election petitioner shall bear his own costs and that of the respondent of this election petition.

(3) The petitioner's fee shall be payable as per Schedule, if precertified.

The office is directed to transmit a certified copy of this judgment to the Election Commission and Speaker of Lok Sabha forthwith, as per Section 103

of the Act.