Civil Appeal No 1236 Nce Of 1975 Appeal under Section 116A of the RP Act from the order date 1284 of the Gauhati High Court in EP No 3 of 1983
C section Vaidyanathan for the Appellant
Kapil Sibal K K Lahiri and Mrs Manik Karanjwala for the Respondent
The Judgment of the Court was delivered by 344 VARADARAJAN J
This appeal by the respondent in Election Petition No 3 of 1983 on the file of Gauhati High Court is directed against the judgment of a learned Single Judge allowing the election petition and setting aside the election of the appellant Horangse from the Longkhim Chre constituency of the Nagaland Legislative Assembly on the ground of corrupt practice namely presentation of four red waist coats to three Gaon Burahs and one Barik of Lirise village on 27 10 1982 to induce them to cast their votes in his favour
The respondentelection petitioner M Tsubongse who contested as a Congress I candidate lost to the appellant who contested as a Naga National Democratic Party candidate for short NNDP  by a margin of 133 votes in the election held on 10 11 1982
He filed his election petition seeking the appellant s election to be set aside on the ground that he was guilty of four instances of corrupt practice falling under section 1231 of the Representation of People Act 1951 for short the Act  and on three other grounds namely 1 display of a banner with the caption Do not sell Nagaland to India a corrupt practice within the meaning of section 1233A of the Act 2 exceeding the limit of expenditure amounting to corrupt practice within the meaning of section 1236 of the Act and 3 use of government vehicles for the purpose of the election
The learned Single Judge who tried the election petition found only one of the aforesaid grounds of corrupt practice namely presentation of four red waist coats proved and the other grounds not proved and he allowed the election petition and set aside the appellant s election on that ground
It is therefore necessary to set out the case of the parties briefly in regard to this single ground
The result of the election held on 10 11 1982 was announced on the day of counting 12 11 1982 by the Returning Officer Tuesung
The respondent had secured 3082 valid votes while the appellant who was the Deputy Speaker of the last Legislative Assembly of Nagaland had secured 3215 valid votes and was declared elected by a majority of 133 votes
The respondent alleged in the election petition that the appellant gave four red waist coats to the voters Lisechem PW 11 Lithrongse PW 12 Murimong PW 13 and Lithsaba at 400 pm
On 27 10 1982 for inducing them to cast their votes in his favour in the presence of 
Tsarise PW 14 and Tselongse PW 15 of Lirise village who witnessed the offer and reported the matter later to the respondent
345 The appellant denied that the waist coats were given either by himself or in order to induce the recipients to cast their votes in his favour
His case was that he visited Lirise village some time prior to October 1982 and was received by the villagers who considered him as one of their leaders
In view of the custom of Nagas to receive guests or others and exchange gifts he sent five waist coats to be given to four Gaon Burabs and the eldest Barik of the village long before the election process started
The waist coats ware not given to procure votes or to induce the recipients to cast their votes in his favour
Thus he denied that he committed and corrupt practice and contended that the election petition is not bona fide and has been filed only to harass him
During the trial the appellant s case was that he sent the five waist coats as gifts through Tsarise PW 14 in September 1982 and that he did not personally distribute them after the election process had started in order to induce the recipients to cast their votes in his favour
The dispute was thus confined to the date of distribution of the waist coats namely whether they were given in September 1982 or on 27 10 1982 as to whether the appellant gave them personally or sent them through PW 14 and as to whether they were given to induce the recipients to cast their votes in favour of the appellant or only to keep up the appellant s promise made in August 1982 to send some gifts in return for the gift made to him E earlier as per custom
The respondent examined Lisechem PW 11 Lithrongse PW 12 Murimong PW 13 B Tsarise PW 14 and Tselongse PW 15 for proving this item of corrupt practice
On the side of the appellant there is the evidence of the appellant RW 1 Chupongse RW 3 Krishna Kumar RW 4 and Yanstsasi RW 5 about this charge
On a consideration of the oral and documentary evidence the learned Judge of the High Court found that this item of charge of corrupt practice is proved beyond reasonable doubt and he accordingly allowed the election petition and set aside the appellant s election as stated above
However the learned Judge did not rule out that the appellant had distributed red waist coats in September 1982 asobserved by him in paragraph 15 of his judgement which will be extracted in due course
346 The appellant RW 1 has denied in his evidence that he went to Lirise village on 27 10 1982 or presented the waist coats personally
He has stated that he visited that village two or three days after 15 8 1982 at the request of the Head Gaon Burah RW 3 and was welcomed by the Gaon Burahs and others where PW 14 then a leading worker and member of the NNDP was also present and was taken to the house of RW 3 and presented with a shawl as per the custom of the Nagas and that as he had gone there urgently and had not taken anything to make a gift by way of return as per the custom he promised to send some gifts later and he thereafter ordered under exhibit dated 2 9 1982 for the making of five red waist coats through Krishna Kumar RW 4 and got them from him on 10 9 1982 and sent them in the same month through PW 14 being distributed to the Gaon Burahs of Lirise village
He has stated that he filed the nomination paper on 13 10 1982 and that PW 14 who was Area Council Member joined the Congress T party in the midst of the election and supported the Congress I candidate
Krishna Kumar RW 4 the proprietor of a tailoring firm at Kohima has corroborated the evidence of RW I about placing of the order exhibit on 2 9 1982 and taking delivery of the waist coats on 10 9 1982
He has stated that exhibit written by the appellant is signed by him and that as the appellant was a known person he delivered the waist coats though exhibit was not surrendered to him on 10 9 1982
The Head Gaon Burah RW 3 has corroborated the evidence of RW l that he met the appellant at Longkhim in August 1982 and requested him to visit Lirise village and that he accordingly came to Lirise village and was received in the Mong Mong month and presented with a cloth and that the appellant regretted that he had not brought anything to be presented by way of return and promised to send waist coats later
He has further stated that PW 14 subsequently told him that the waist coats had arrived and he thereupon asked him to distribute them and give one of them to him also and they were given to him and other Gaon Burahs
Yanstasi RW 5 has corroborated the evidence of RW 3 about the appellant s visit saying that two months before the election held in November 1982 he had gone to Lirise to meet the appellant and that the appellant was received by the villagers and taken to the Head Gaon Burah s house and presented with a sangtam cloth and that the appellant regretted that he had not brought any present to be given by him and assured that he would send waist coats later
RW 5 was Head Gaon Burah and he became Special 347 DB at Seotsing from 15 9 1983
He has denied that he had worked for the appellant in the elections held in 1977 and 1982 in both of which he had been declared duly elected
RW 3 has not been cross examined seriously about the month of the appellants visit to Lirise village namely Mong Mong month which according to the evidence of RW5 is September in which the Mong Mong festival is celebrated by the Nagas
exhibit
C was not filed in the court at the earliest stage
RW I has stated in his evidence that his wife came across it after he had filed his written statement in the election petition and gave it to him for being Produced during the trial
May be noreliance could be placed on Ex to find out when the waist coats were ordered to be made and about when they were actually delivered by RW4 to the appellant
PW14 has not been cross examined regarding the month in which he left the NNDP and joined Congress I party which according to his evidence was in August 1982
Similarly RW
I has not been cross examined about when PW14 left the NNDP and joined the Congress I party which according to his evidence was in the midst of the election in which he filed the nomination paper on 13 10 1982
It is not improbable that the appellant had sent the waist coats through PW14 who was a prominent member of the NNDP and the Area Council member at that time for being distributed to the Gaon Burahs by way of return of the present of the shawl made to him during his earlier visit as per the custom amongst Nagas to exchange gifts during the visit of important persons like MLAs
and others
The appellant was the Deputy Speaker of the Nagaland Legislative Assembly at that time
The said custom amongst the Nagas is spoken to even by respondent PW1 who has stated in his evidence that normally villagers also would present gifts to visiting MLAs
and the visiting MLAs
also would 
make presents to the villagers as per the custom of the Nagas
We find no satisfactory reason for rejecting the evidence of RWs 1 to 5
As a matter of fact even the learned counsel for the respondent in this appeal before the trial court does not appear to have seriously challenged the acceptability of the evidence of these witnesses in the course Or his arguments before the learned Judge
The learned Judge has stated in his judgment in regard to this matter thus It has been contended that even if it is assumed that the respondent appellant in this appeal had taken delivery of five red waist coats on 10 9 1982 as reflected in exhibit C this would not rule out the distribution in October 1982
It is further submitted by the learned counsel for the petitioner respondent in this appeal that even if 348 distribution of some waist coats had taken place in September 1982 as deposed by RWs 4 and 5 the same is not enough to discard the allegation of distribution of other waist coats in October 1982
This submission is apparently right inasmuch as because some persons had been given in September 1982 in pursuance of assurance made in August 1982 it would not by itself rule out the giving of such gifts in October more so when the price of one waist coat seems to be around Rs 100 The sum of Rs 100 per piece mentioned by RW1 in his evidence is the price of each of the blankets which he had distributed to some persons in the village in 1981 and not of each of the waist coats given in 1982
It is not the case of any of the parties that waist coats were presented by or at the instance of the appellant once in September 1982 and again to the same Gaons Burah in October 1982
Nor is it probable that only waist coat would have been presented on both the occasions to the same individuals Even if the evidence of RWs 1 to 5 is considered to be unsatisfactory to prove that the red waist coats were presented only in September 1982 and not in October 1982 that does not mean that the respondent s case that the red waist coats were given to PWs 11 12 and 13 on 27101982 to induce them to cast t heir votes in favour of the appellant stands proved
The respondent has to prove his case which is disputed by the appellant independently of the fact whether the appellant has proved his defence or not
Now we proceed to consider the evidence of PWs11 to 15
Lisechem PW11 a Gaon Burah of Lirise village mentioned the date of the appellant s visit first as 2791982 and then corrected it as 27101982 and again stated that he does not remember the month or dale of receipt of the waist coat by him from the appellant and he has added that it was after the date of the election
He has stated that the appellant came to his house on 27101982 and gave him a red waist coat and asked him to cast his vote in his favour and not to inform others about the presentation of the waist coat and that soon after the appellant left his house PWs 14 and 15 came to his house and asked him about what had been given to him by the appellant and he thereupon showed that waist coat to them and told them that it was given to him
Lithrongse  PW12 another Gaon Burah of Lirise village has 349 stated that the appellant came to his house at 400 pm
On 27101982 and presented a red waist coat to him and asked him to cast his vote in his favour and that soon after the appellant left his house PWs 14 and 15 came there and asked him as to what was given to him and he thereupon told them that the appellant gave him a waist coat and they asked him to remember it and not to deny it later
He is unable to deny that appellant visited the village in August or September 1982 or to say whether it was in 1981 when admittedly he received a blanket from the appellant on a prior occasion when the appellant was the Deputy Speaker of the Legislative Assembly
It is seen from his evidence that PW 15 belongs to the Congress I party and that PW 14 was previously in the NNDP and had subsequently joined the Congress I party
Muri Mong PW 13 of Lirise village has stated in his evidence that the appellant came to his village after 400 pm On 2710
1982 and presented a red waist coat to him and asked him to cast his vote in his favour and that a minute after the appellant left his house PWs 14 and 15 came there and asked him if a waist coat was presented to him by the appellant
He has denied that PW 14 gave the waist coat to him in the first party of September 1982 and that the appellant did not visit his village or present the waist coat on 27101982
He has stated that he is an old man and that he does not remember months and dates
Tsarise PW 14 who was admittedly in the NNDP and a supporter of that party previously claims to have joined the Congress I party in August 1982
He has stated in his evidence that the appellant came to Lirise village on 27101982 and visited the houses of PW11 Lithsabha and PWs
12 and 13 in that order at about 400 p m and that he and PW15 went to those houses within a few minutes after the appellant s departure from there and those persons individually told them that the appellant gave them a waist coat and asked them to cast their votes in his favour
He has admitted that when he visited the house of PWs11 to 13 and Lithsaba he asked them to remember the date and the time and not to deny it later
He has denied that the appellant sent the red waist coats through him in the early part of September 1982 for distribution amongst Gaon Burahs of Lirise village
Tsalongse PW 15 does not remember the date of the appellant s visit to Lirise village
He has stated in his evidence that the 350 appellant came to the village in the election period and asked the people to cast their votes in his favour
He claims to have gone to the house of PW 14 and to have seen from there the appellant visiting the houses of PW 11
Lithsaba and PWs 12 and 13 one after the other
He has stated that he and PW 14 went to those houses soon after the appellant left the places and they individually told them that the appellant gave red waist coats and asked them to cast their votes in his favour
He has denied that the appellant neither visited Lirise village nor presented waist coat on 27101982
It is significant to note that though in the election petition it is clearly alleged that the appellant gave red waist coats to PWs 11 to 13 and Lithsabha at 400 pm
On 27101982 for inducing them to cast their votes in his favour in the presence of PWs
14 and 15 and they witnessed the offer and reported the matter subsequently to the respondent PWs
14 and 15 do not claim in their evidence personal knowledge about the offer presentation of the waist coats by the appellant to these four persons and about the inducement of the appellant to cast their votes in his favour
Admittedly P Al
14 had asked PWs 11 12 and 13 to remember the date and time of the appellant s visit to their houses where he claims to have gone alongwith PW 15 soon after the departure of the appellant from each of those places
It is clear that these three witnesses
I l to 13 have mentioned the date and month of the appellant s visit only on the basis of what PW 14 told them to remember
P W 14 who was a staunch worker of the NNDP and had switched over to the Congress I party to which PW 15 belongs some time before the election
and PW 15 are the interested witnesses
PW 15 has stated in his evidence that the appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of PWs
I l to 13 in Lirise village only thereafter
If that is so it is not likely that the appellant then the Deputy Speaker would have carried the gunny or hessian bag containing the waist coats himself without being accompanied even by a single worker or sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the recipients to cast their votes in his favour
The evidence of PWs 11 to 13 that PWs
14 and 15 came to their houses within minutes after the appellant left the place and asked them about what had been given to them by the appellant and that when they told them that red waist coats have been given to them with a request to 351 favour him with their votes they asked them to remember the date and time and not to deny the matter later PW 14 has stated so in his evidence is artificial and unreliable
We are therefore not impressed with the evidence of PWs11 to 15 about the date of the appellant s visit to Lirise village and the presentation of the red waist coats to PWs 11 to 13 and others
On the evidence of RWs 1 to 5 which we accept we find that the appellant got the waist coats distributed through PWs
14 who was then a staunch worker of the NNDP in September 1982 long before the election process had started as per the custom of Nagas to make gifts in return for the gifts received by dignitaries
The evidence let in by the respondent to prove this item of alleged corrupt practice on the part of the appellant is wholly insufficient and unacceptable to prove the charge satisfactorily
We are therefore unable to uphold the judgment of the learned Judge setting aside the appellant s election on the ground of the alleged corrupt practice
We accordingly allow the appeal with costs in both the courts and set aside the judgment of the learned Judge
SR Appeal allowed


Summary:
Tsubongse the election petitioner and the respondent herein who contested from the Longkhim Chre constituency of the Nagaland Legislative Assembly as a Congress I candidate in the election held on 101182 lost by a margin of 133 votes to Horangse the appellant and who was the Deputy Speaker of the last legislative Assembly
The respondent filed an election petition on the ground that the appellant was guilty of four instances of corrupt practice falling under Section 1231 of the Representation of People Act 1951 and on three other grounds namely 1 display of a banner with the caption do not sell Nagaland to India a corrupt practice within the meaning of Section 123 3A of the Act 2 exceeding the limit of expenditure amounting to corrupt practice within the meaning of Section 1236 of the Act and 3 use of government vehicles for the purpose of the election
The learned Single Judge who tried the election petition found only one of the aforesaid grounds of corrupt practice namely presentation of four red waist coats proved and the other grounds not proved and therefore he allowed the election petition and set aside the appellant s election on that ground
Hence the appeal
Allowing the appeal the Court  HELD In an election petition the petitioner who alleges corrupt practice must prove his case which is disputed by the returned candidate indepen 343 dently of the fact whether the returned candidate has proved his defence or not
348E Here on the evidence of RWs 1 to 5 the appellant got the waist coats distributed through PW 14 who was then a staunch worker of the Naga National Democratic Party in September 1982 long before the election process had started as per the custom of Nagas to make gifts in return for the gifts received by dignitaries
The evidence let in by the respondent election petitioner to prove the item of alleged corrupt practice on the part of the appellant is wholly insufficient and unacceptable to prove the charge satisfactorily
Though in the election petition it is clearly alleged that the appellant gave red waist coats to PWs 11 to 13 and Lithsabha at 4 pm
On 271082 for inducing them to cast their votes in his favour in the presence of PWs
14 and 15 and they witnessed the offer and reported the matter subsequently to the respondent P Ws 14 and 15 do not claim in their evidence personal knowledge about the offer on presentation of the waist coats by the appellant to these four persons and about the inducement of the appellant to cast their votes in favour
Admittedly PW 14 had asked PWs 11 12 and 13 to remember the date and time of the appellant s visit to their houses where he claims to have gone alongwith PW 15 soon after the departure of the appellant from each of those places
It is clear that these three witnesses PWs 11 to 13 have mentioned the date and month of the appellant s visit only on the basis of what PW 14 told them to remember
P W 14 who was a staunch worker of the NNDP and had switched over to the Congress I Party to which PW 15 belongs sometime before the election and PW 16 are interested witnesses
PW 15 has stated in his evidence that the appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of PWs 11 to 13 in Lirise village only thereafter
If that is so it is not likely that the appellant then the Deputy Speaker would have carried the gunny or hessian bag containing the waist coats himself without being accompanied even by a single worker or sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the recipients to cast their votes in his favour
The evidence of PWs 11 to 13 that PWs
14 and 15 came to their houses within minutes after the appellant left the places and asked them about what had been given to them by the appellant and that when they told them that red waist coats have been given to then with a request to favour him with their votes and they asked them to remember the date and time and not to deny the matter later PW 14 has stated so in his evidence is artificial and unreliable
The evidence of PWs 11 to 15 about the date of the appellant s visit to Lirise village and the presentation of the red waist coats to PWs 11 to 13 and another is equally not impressive
Therefore the appellant cannot be said to have committed any corrupt practice
351B C 350C H