vil Appeal No 683 of 1968
Appeal under section 116 A of the Representation of the People Act 1951 from the Judgment and order dated January 10 1968 of the Judicial Commissioner of Manipur in Election Petition Case No 2 of 1967
D Goburdhun for the appellant
KR Chaudhuri K Rajendra Chaudhuri and CS Sreenivasa Rao for respondent No 1
The Judgment of the Court was delivered by Hidayatullah CJ
This is an appeal from the Court of the Judicial Commissioner for Manipur at Imphal under section 116A of the Representation of People Act
The appeal arises from an election to the Outer Mareput Parliamentary Constituency at which the appellant who was the returned candidate and five others were the contesting candidates
This Outer Mareput Constituency comprised 14 Assembly constituencies
The dates of poll were 15th 20th 24th 28th February and 6th March 1967 and the time of poll was from 7 30 AM to 4 30 PM
This constituency had 219554 registered voters
The total number of votes polled was 120008
Of these 4166 votes were declared invalid
The returned candidate received 30403 votes as against the next candidate who received 28862 votes
There was thus a majority of 1541 votes in favour of the returned candidate
The result of the poll was declared on March 10 1967
The candidate who secured the second largest number of votes filed this election petition on April 20 1967
The main ground of attack which succeeded in the Judicial Commissioner s Court was that the poll was disturbed because of numerous circumstances
These were that the polling centres were in some cases changed from the original buildings to other buildings of which due notification was not issued earlier with the result that many of the  voters who went to vote at the old polling booths found no arrangement for poll and rather than go to the new polling station went away without casting their votes The second ground was that owing to firing by the Naga Hostiles the voting at some of the polling stations was disturbed and almost no votes were cast
It was lasfly contended that the polling hours at some stations were reduced with the result that some of the voters who went to the polling station were unable to cast their votes
639 It is hardly necessary to set down here the names of the polling stations at which these things happened
In any event these pelting stations carry rather strange names and it would not help to state them here
The net result may be stated
It was this there were 12 polling centres at 4 of which the venue for the poll was altered
There were 6 others at which the firing disturbed the poll and In 2 of the polling
centres not a single vote was cast and lastly in one of the polling centres out of 513 voters only one voted
The following chart discloses the break up of the figures at these polling centres SR
No of No of No Name of the polling stations voters votes as notified attached actually to the cast station 1Tungam Khullen High School   1242 522 2ChandelJunior Basic School   1060 172 3
Purum Pantha LP School   654 338 4
Litan LP School   449 347 5
Toupokpi ME School  584 128 6Chakpikarong ME School  715 67 7Bolyang Tampak LP School   868 249 8Oklu LPSchool     725 17 9Lorong Khullen JBSchool  581 53 10Lakhmei MESchool   665 11Nagri Khullen MESchool   564 12Karong Dak Bumgalow   513 1 It will be noticed from this chart that out of 8620 votes which could have been polled only 1894 votes were actually received
In other words 6726 voters did not vote or could not vote
The election petitioner who ran a deficit of 1541 votes claimed in the election petition that the result of the poll was prejudicial to him in particular and friar by the non compliance with the provisions of the Act and its rules the result of the election in so far as the returned candidate was concerned had been materially affected
The Judicial Commissioner after examining a large number of witnesses on both sides came to the conclusion that there was this flaw in the election for this constituency
He went further and held that the result of the election in so far as it concerned the returned candidate had been materially affected
He therefore avoided the election and ordered fresh poll in the 12 polling stations
In this appeal the returned candidate attempted to establish that polling was not so disorganised that it could be said that 340 it did not take place
He attempted to show that even where the polling station was shifted it was a matter of few hundred yards and the people went to vote knew the new location of the polling booths
He also submitted that in any event this had affected all the contesting candidates equally and the election
petitioner could not therefore be said to have suffered more  than the other candidates
Lastly the returned candidate contended that it had not been established in accordance with the ruling of this Court in Vashist Narain Sharma vs Dev Chandra and others1 that the result of the election had been materially affected so far as his election was concerned
In this connection the returned candidate relies upon the majority which he had already obtained and refers to the votes which had not been cast pointing out that on the general pattern of the voting as disclosed in the case it cannot possibly be said that the election petitioner would have carried such a majority from those votes as to neutralise the successful lead he had already established
The election petitioner as the answering respondent tried to establish that the pattern of the voting clearly showed that the returned candidate had obtained a fortuitous lead which was capable of being wiped off if the voting had proceeded according to the Act and the Rules
Both sides relied upon statistics to establish their cases
The election petitioner in addition relied upon the evidence of witnesses which he pointed out had been accepted by the Juclicial Commissioner and upon the observations of this Court contended that we should not lightly depart from the findings given by the learned Judicial Commissioner
This case without entering into the numerous details is confined to the above contentions of the rival parties
To begin with it is hardly necessary for us to go over the evidence with a view to ascertaining whether there had been or not a breach of the Act and the rules in the conduct of the election at this constituency
We may say at once that having read the evidence we are in entire agreement with the decision of the learned Judicial Commissioner that by the change of venue and owing to the firing a number of voters probably failed to record their votes which they would have gone if the poll had gone on smoothly and according to rules
This shows that the matter is governed by section 1001 d iv
The question remains still whether the condition precedent to the avoidance of the election of the returned candidate which requires proof from the election petitioner that the result of the election had been materially affected in so far as the returned candidate was concerned has been established in the present case
This part of the case depends upon the ruling of this Court in 1 1955 1 section
CR 509
641 Vashist Narain Sharmas case1
In that case there was a difference of 111 votes between the returned candidate and the candidate who had obtained the next higher number of votes
One candidate by name Dudh Nath Singh was found not competent to stand and the question arose whether the votes wasted on Dudh Nath Singh if they had been polled in favour of the remaining candidates would have materially affected the fate of the election
Certain principles were stated as to how the probable effect upon the election of the successful candidate of votes which were
wasted in this case not cast must be worked out
Two witnesses were brought to depose that if Dudh Nath Singh had not been a candidate for whom no voting had to be done the voters would have voted for the next successful candidate
Ghulam Hasan J did not accept this kind of evidence
It is observed as follows It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground
The question is one of fact and has to be proved by positive evidence
If the petitioner
is unable to adduce evidence in a case such as the present the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand
 In another passage it is observed It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate
The casting of votes at an election depends upon a variety of factors and  it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates
While it must be recognised that the petitioner in such a case is confronted with a difficult situation it is not possible to relieve him of the duty imposed upon him by section 1001c and hold without evidence that the
duty has been discharged
 Further it is pointed out that the burden of proof in England the exact reverse of that laid down by the Indian statutes
There the returned candidate has to prove that the non compliance or mistake does not affect the result of the election
In our country the burden is upon the election petitioner to show affirmatively that the result of the election has been materially  affected
1  642 Therefore what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the
poll would have gone against the returned candidate if the breach the rules had not occurred and proper poll had taken place at  all the polling stations including those at which it did not
The evidence in tiffs case which led by the election petitioner is the kind of evidence which was criticised by this Court
Witnesses have stated that a number of voters did not vote because of the change of venue or because of firing and that they had decided to vote en bloc for the election petitioner
This kind of evidence is merely an assertion on the part of each witness and he cannot speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates
We cannot therefore accept the statement even of a Headman that the whole village would have voted in favour of one candidate to the exclusion of the others
This conclusion is further fortified if one examines the polling pattern in this election
To begin with it is wrong for the election petitioner to contend that of the 6726 votes which were not cast he would have received all of them
The general pattern of poll not only in this constituency but in the whole of India is that a11 the voters do not always go to the polls
In fact in this case out of 219554 voters only 120008 cast their votes
Even if we were to add to them the 6726 votes it is obvious that not more than 5 5  of the voters would have gone to the polls
This immediately cuts down the figure of 6726 to a little over half and the margin from which the election petitioner could claim additional votes therefore
becomes exceedingly small
When we turn to the pattern of voting as is disclosed at the various polling booths at which the voters had in fact gone we get reasonably clear picture
At 9 polling centers 1893 votes were actually polled
Of these 524 votes were received by the election petitioner and 413 by the returned candidate and 1097 votes went to the other candidates
In other words out of 20 votes 11 went to other candidates 5 to the election petitioner and 4 to the returned candidate
If one goes by the law of averages and applies these figures reasonably to half of the votes which were not cast it is demonstrated at once that the election petitioner could not expect to wipe off the large arrears under which he labored and that he could not have therefore made a successful bid for the seat even with the assistance of the voters who did not cast their votes
It is pointed out that at Tungam Khullen High 643 School he received 401 out of 522 votes
If this had been the general pattern one could say that he would have got almost the votes that had not been cast
But look at the other polling stations
At Litan LP School he obtained 41 out of 347 at Chandel Junior Basic School he got 34 out of 172 at Purum Pantha LP School he got 11 out of 338 at Toupokpi ME School 18 out of 128 at Oklu LP School 8 out of 17 at Chakpi Karong ME School 2 out of 67 at Larong Khullen LP School 1 out of 53 and at Bolyang Tampak LP School 8 out of 249
While we do not think that statistics can be called in aid to prove such facts because it is notorious that statistics can prove anything and made to lie for either case it is open to us in reaching our conclusion to pay attention to the demonstrated pattern of voting
Having done so we are quite satisfied that 1541 votes could not by any reasonable guess have been taken off from the lead of the returned candidate so as to make the election petitioner successful
In so far as the other contesting candidates are concerned they had received so few votes that even if they had received all the votes that had not been cast it would not have mattered little to the result of the election
The learned Judicial Commissioner reached his conclusion by conrefitting the same error which was criticised in Vashist Narain Sharing s1 case
He took the statement of the witnesses at their word and held on the basis of those statements that all the votes that had not been cast would have gone to the election petitioner
For this there is no foundation in fact it is a surmise and it is anybody s guess as to how these people who did not vote would have actually voted
In our opinion the decision of the learned Judicial Commissioner that the election was to contravention of the Act and the Rules was correct in the circumstances of this case but that does not alter the position with regard to section 100 1 div of the Act
That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected
How he has to prove it has already been stated by this Court and applying that test we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided
It is no doubt true that the burden which is placed by law is very strict even if it
is strict it is for the courts to apply it
It is for the Legislature to consider whether it should be altered
If there is another way of determining the burden the law should say it and not the courts
It is only in given instances that taking the law as it is the courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not
We are satisfied that in this case this burden has not been discharged
The result is Sup
Cl69 10 644 that the appeal must succeed and it is allowed
The election of the returned candidate will stand
The costs in the Judicial Commissioner s Court will be as ordered
The election petitioner who apparently was not so much at fault as the Government in changing the polling stations shall bear only half the costs of the appellant in this Court
YP lippeal allowed


Summary:
In an election to a Parliamentary constituency having 219554 voters 120008 votes were polled
of these 4168 votes were declared invalid
The appellant won by securing 1541 votes more than the next candidate the respondent
The respondent filed an election petition on the ground that the polling was disturbed as the polling centres were in some cases changed without due notification at some polling stations almost no votes were cast because of fi ring at rioters and at some polling stations the polling hours were reduced
Only 1894 votes were polled at these polling booths in which the total number of voters attached were 8620
so 6726 voters could not vote
The Judicial Commissioner ordered fresh poll in these polling stations
In appeal by the returned candidate this Court
HELD The appeal must succeed
The decision of the Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances this case but that did not alter the position with regard to section 1001d iv of the Representation of the People Act
That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected
And in this case this burden had not been discharged
643 F The evidence in this case which had been brought by the election petitioner was the kind of evidence which was criticised by this Court
Witnesses were brought forward to state that a number of voters did not vote because of the change of venue or because of firing and that they had already decided to vote en bloc for the election petitioner
This kind of evidence was merely an assertion on the part of a witness who could not speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes wilt go to one or the other candidates
This conclusion is further forified if one examines the polling pattern in this election
Not more than 55 of the voters cast their votes This immediately cut down the  figure of 6726 to a little over half and the margin from which the election petitioner could claim additional votes therefore becomes exceedingly small
From the pattern of voting as was disclosed at the various polling booths to which the voters had gone it was clear that 1541 votes could not
by any reasonable guess have been taken off from the lead of the returned candidates so as to make the election petitioner successful In so far as the other contesting candidates were concerned they had received so few votes that even if they had received all the votes that had not been cast it would have mattered little to the result of the election
The Judicial Commissioner reached his conclusion by committing the same error which was criticised in Vashist Narain Sharmas case
He took the statement of witnesses at their word and held on the basis of 638 these statements that all the votes that had not been cast would have gone to the election petitioner
642 B 643 E Vashist Narain Sharma V Der Chandra and Ors   followed