Case: Paokai Haokip Vs. Rishang &amp; Ors

which was criticised by this Court. Witnesses have been brought forward to state that a number of voters did not vote because of the change of venue or because if 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 a witness, who 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 polling not only in this constituency but in the whole of India is that all the voters do not always go to the polls. In fact, in this case, out of 2,19,554 voters, only 1,20,008 cast their votes.Even if we were to add to them the 6,726 votes, it is obvious that not more than 55% of the voters would have gone to 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 in the various polling booths at which the voters had in fact gone, we get a reasonably clear picture. At 9 polling centres, 1893 votes are 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, 3 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 laboured 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 School, he received 401 out of 522 votes. If this had been the general pattern, one could say that he would have got almost all the votes that had not been cast. But look at the other polling stations.At Litan L. P. School, he obtained 41 out of 347, at Chandel Junior Basic School he got 34 out of 172, at Purum Pantha L. P. School, he got 11 out of 338, at Toupokpi M. E. School 18 out of 128, at Oklu L. P. School 8 out of 17, at Chakpi Karong M. E. . School 2 out of 67, at Larong Khullen L. P. School 1 out of 53 and at Bolyang Tampak L. P. 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 a little to the result of the election. The learned Judicial Commissioner reached his conclusion by committing the same error which was criticised in Vashist Narain Sharmas case, 1955-1 SCR 509 = (AIR 1954 SC 513 ). He took the statement of the witnesses at their worth 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 anybodys guess as to how these people, who did not vote, would have actually voted.12. In our opinion, the decision of the learned Judicial Commissioner that the election was in 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 10 (1) (d) (iv) 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.

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

Explanation:
1[ds]6. In this appeal, the returned candidate attempted to establish that polling was not so disorganised that it can be said that 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 who 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.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 thisFurther it is pointed out that the burden of proof in England was the exact reverse of that laid down by the Indian Statutes. There, the returned candidate has to prove that the non-compliance or mistake did 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.10. 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 of the rules had not occurred and proper poll had taken place at all the polling stations including those at which it did not.11. The evidence in this case which has been brought by the election petitioner is the kind of evidence which was criticised by this Court. Witnesses have been brought forward to state that a number of voters did not vote because of the change of venue or because if 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 a witness, who 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 polling not only in this constituency but in the whole of India is that all the voters do not always go to the polls. In fact, in this case, out of 2,19,554 voters, only 1,20,008 cast their votes.Even if we were to add to them the 6,726 votes, it is obvious that not more than 55% of the voters would have gone to 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 in the various polling booths at which the voters had in fact gone, we get a reasonably clear picture. At 9 polling centres, 1893 votes are 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, 3 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 laboured 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 School, he received 401 out of 522 votes.In our opinion, the decision of the learned Judicial Commissioner that the election was in 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 10 (1) (d) (iv) 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.