Case: Wilfred D'Souza Vs. Francis Menino Jesus Ferrao

the time of counting of votes after the poll, can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided certain conditions are fulfilled. We agree with the learned counsel for the parties in this respect, and find that this position of law is supported by two English decisions, Borough of St. Andrews(4 Omelly &Hardcastle 32, ) and The Stepney Division of the Borough of Tower Homlets(Omelly &Hardcastle 34.) as also by two Indian decisions, Kalicharan Singh v. Ramcharitar Rai Yadava &Ors(5 E.L.R, 98.) and A.K. Subbarava Gounder v. G. Palanisami Gounder &Ors.(11 E.LR. 251.) Before, however, a tendered ballot paper can be taken into account during the proceedings of election petition, evidence would have to be led on the following two points:"(1) The person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number.(2) It was such genuine voter who marked t he tendered ballot paper."11. So far as the first point is concerned, the evidence of the genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance casting doubt regarding its veracity be sufficient. Once the above two points are proved, the following consequences would follow:"(a) The court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast; and(b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked."It may also be mentioned that the proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is s o small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters.The present election petition would have to be decided in the light of the legal position set out above.12. We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers. Each of these witnesses has deposed that when she arrived at the polling booth, she was told that someone else had cast her vote. When these witnesses persisted that they had not cast their votes, each of them was supplied with a paper which she marked. Both the witnesses were emphatic that they had not. put their votes in the ballot box and that they handed them over to the persons present at the polling booth. A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No. 15 which relates to list of tendered votes. The packet containing Form No. 15, it needs to be mentioned, was opened after the close of the evidence of these two witnesses. The name of Joaquina Rodrigues is mentioned in Form No. 15. The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos. So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper. The counterfoil of the tendered ballot paper however, makes it clear that it relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper. The parties, however, cannot be made to. suffer because of any such omission on the part of the presiding officer. The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that the y have not deposed about their having affixed two thumb impressions instead of one thumb impression. As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers. Their evidence also shows that they did not cast the initial votes which were cast in their names.Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and proceeded to decide the cast after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined. In view of the fact that the appellant has adduced prima facie proof in respect of two of the tendered ballot papers, the Judicial Commissioner, in our opinion, should now call upon the respondent to adduce his evidence. The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.13.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos. So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper. The counterfoil of the tendered ballot paper however, makes it clear that it relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper. The parties, however, cannot be made to. suffer because of any such omission on the part of the presiding officer. The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that the y have not deposed about their having affixed two thumb impressions instead of one thumb impression. As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers. Their evidence also shows that they did not cast the initial votes which were cast in their names.Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and proceeded to decide the cast after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined. In view of the fact that the appellant has adduced prima facie proof in respect of two of the tendered ballot papers, the Judicial Commissioner, in our opinion, should now call upon the respondent to adduce his evidence. The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.above.12. We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers. Each of these witnesses has deposed that when she arrived at the polling booth, she was told that someone else had cast her vote. When these witnesses persisted that they had not cast their votes, each of them was supplied with a paper which she marked. Both the witnesses were emphatic that they had not. put their votes in the ballot box and that they handed them over to the persons present at the polling booth. A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No. 15 which relates to list of tendered votes. The packet containing Form No. 15, it needs to be mentioned, was opened after the close of the evidence of these two witnesses. The name of Joaquina Rodrigues is mentioned in Form No. 15.The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos. So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper. The counterfoil of the tendered ballot paper however, makes it clear that it relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper. The parties, however, cannot be made to. suffer because of any such omission on the part of the presiding officer. The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that the y have not deposed about their having affixed two thumb impressions instead of one thumb impression. As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers. Their evidence also shows that they did not cast the initial votes which were cast in their names.Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and proceeded to decide the cast after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined. In view of the fact that the appellant has adduced prima facie proof in respect of two of the tendered ballot papers, the Judicial Commissioner, in our opinion, should now call upon the respondent to adduce his evidence. The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.