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2002 DIGILAW 219 (GAU)

Simanchal Digal v. Gunin Hazarika

2002-05-23

RANJAN GOGOI

body2002
RANJAN GOGOI, J.— Defeated at the hustings, by what the petitioner perceives to be a narrow margin of 536 votes, the instant election petition has been filed for a declaration that the election of the respondent No. 1 from No. 89 Kaliabor Legislative Assembly Constituency (hereinafter referred to as "the Constituency") is void and illegal. A further declaration that the petitioner is the duly elected candidate having secured the majority of valid votes polled has also been prayed for in the present election petition. 2. The pleadings of the respective parties may be set out at the first instance. According to the election petitioner as per the schedule of the election notified by the Election Commission of India, polling for the constituency was held on 10.5.2001. Counting of votes commenced at about 8/9 AM on 13.5.2001 in the premises of Kaliabor College, Counting was completed at about 8.30 PM and the result was formally announced at about 0015 Mrs of 14.5.2001. According to the election petitioner while he secured a total of 31757 valid votes polled, the respondent No. 1 secured 32293 votes thereby defeating the election petitioner by a margin of 536 votes. According to the election petitioner the result of the election was materially affected by the improper reception of votes in favour of the respondent No. 1 though such votes were cast in favour of the election petitioner. Furthermore, according to the election petitioner the result of the election has also been materially affected by the rejection of valid votes cast in favour of the election petitioner. The case of the election petitioner, therefore, is that the result of the returned candidate is void under the provisions of Section 100(l)(d)(iii) of the Representation of the Peoples Act, 1951. The specific pleadings of the election petitioner, as contained in the election petition, is that counting of votes was held in two Halls, i.e. Hall No, 1 and Hall No. 2. Hall No. I measured 20 X 25 feet whereas Hall No. 2 measured about 20 X 50 feet. A eight feet high wire fencing was erected separating the actual counting arena carving out a narrow four feet corridor which was meant for the Counting Agents of the respective candidates. Hall No. I measured 20 X 25 feet whereas Hall No. 2 measured about 20 X 50 feet. A eight feet high wire fencing was erected separating the actual counting arena carving out a narrow four feet corridor which was meant for the Counting Agents of the respective candidates. While there were six counting tables and two additional tables meant for the ARO and Returning Officer in Hall No. 1 there were fourteen counting tables with two additional tables meant for the ARO and the Returning Officer in Hall No. 2. According to the election petitioner the arena/corridor earmarked for Counting Agents was small and congested. While the election petitioner was allowed to appoint only one Counting Agent for each table, the returned candidate had appointed a total of sixty Counting Agents. Along with the Counting Agents of the other candidates, a huge number of Counting Agents made effective supervision of the counting process by the Counting Agents of the petitioner difficult. Due to congestion and the small area allotted to the Counting Agents, the Counting Agents of the Election petitioner could not effectively oversee the counting and perform their duties. 3. Insofar as the actual process of counting is concerned it has been pleaded by the election petitioner that in Hall No. 1 in table No. 3, in the first round of counting, the ballot papers of No. 3 Darigaji Nimna Buniadi School were taken up for counting. One Abu Sidik was the Counting Agent of the election petitioner on the said table No. 3. According to the election petitioner, a total of 570 votes were cast in his favour. Fifteen ballot papers clearly marked in his favour were treated as rejected ballots by the Returning Officer. The election petitioner has further alleged that 10/12 bundles of 50 ballot papers each marked in his favour were put in the compartment of the counting tray meant for the returned candidate. Furthermore, according to the election petitioner 556 votes shown to have been cast in favour of the returned candidate were actually received by the election petitioner and ought to have been counted in his favour. Similarly 144 votes shown in the final result to have been secured by the election petitioner were actually received by the returned candidate and ought to have been counted in favour of the returned candidate. Similarly 144 votes shown in the final result to have been secured by the election petitioner were actually received by the returned candidate and ought to have been counted in favour of the returned candidate. On the aforesaid basis the election petitioner has contended that 427 valid votes cast in his favour were excluded whereas 412 votes were illegally counted in favour of the returned candidate, in the pleadings contained in the election petition it has been averred that similar attempts had been made by the Counting Agents of the returned candidate in connivance with the Counting Staff on duty to count bundles of 50 ballot papers each cast in favour of the election petitioner in the name of the returned candidate in respect of but such attempts did not materialize due to the vigilance of the Counting Agents of the election petitioner and the aforesaid attempted process was stopped by timely intervention. 4. In the aforesaid first round of counting insofar as table No. 6 of Hall No. 1 is concerned, the election petitioner has averred that counting of ballots of No. 6 Missamukh LP School (East) were taken up for consideration. A total 321 ballot papers were initially counted in favour of the election petitioner. Seven ballot papers marked in favour of the election petitioner were wrongly treated as rejected ballots. The election petitioner has further averred that three bundles of ballot papers, each containing 50 ballot papers, marked in favour of the election petitioner were put in the compartment meant for the returned candidate. However, on protest of the Counting Agent of the election petitioner, one of such bundles was put back in the compartment meant for the election petitioner whereas two bundles containing 100 votes in all were not restored to the compartment of the election petitioner. It has been averred in the election petition that because of the aforesaid acts committed, 100 ballots papers marked in favour of the election petitioner were wrongly counted in favour of the returned candidate. The election petitioner has also averred that one Go lap Saikia was his Counting Agent in table No. 6. 5. In the Second round of counting, the election petitioner alleges that similar anomalies took place in respect of table No. 6 of Hall No. 1 when the ballot papers of No. 22A Kuworitol Muktab School (West) were counted. The election petitioner has also averred that one Go lap Saikia was his Counting Agent in table No. 6. 5. In the Second round of counting, the election petitioner alleges that similar anomalies took place in respect of table No. 6 of Hall No. 1 when the ballot papers of No. 22A Kuworitol Muktab School (West) were counted. It is specific case of the election petitioner that 305 ballot papers were originally counted in favour of the election petitioner and 57 ballot papers were counted in favour of the returned candidate, three ballot papers marked in favour of the election petitioner were rejected. According to the election petitioner in the final result sheet the aforementioned figures were reversed and the returned candidate was shown to have secured 305 votes which were actually cast in favour of the election petitioner. Similarly the election petitioner has been shown to have received 57 votes which were actually cast in favour of the returned candidate. The election petitioner has further averred that the objections were raised by his Counting Agent Golap Saikia which were not deeded to. It is the further case of the election petitioner that in that process 245 votes were lost by the election petitioner thereby materially affecting the result of the election. 6. In the election petition averments have been made regarding anomalies/ irregularities in the counting process in Hall No. 2. The specific case of the election petitioner is that in the second round of counting in Hall No. 2 in table No. 1, the ballot papers of No. 23 Jawani LP School were taken up for counting in which 570 ballot papers are stated to have been cast in favour of the election petitioner. According to the election petitioner six bundles of 50 ballot papers each, i.e., total 300 votes cast in favour of the election petitioner were wrongly put in the compartment of the returned candidate. Additionally six ballot papers marked in favour of the election petitioner were wrongly rejected by the counting officials. In that process, the election petitioner, it is pleaded, lost 306 votes whereas 300 votes were illegally received in favour of the returned candidate. The election petitioner has asserted that because of the aforesaid omissions and commissions, the result of the election has been materially affected. In that process, the election petitioner, it is pleaded, lost 306 votes whereas 300 votes were illegally received in favour of the returned candidate. The election petitioner has asserted that because of the aforesaid omissions and commissions, the result of the election has been materially affected. One Shankar Gupta is pleaded to be the Counting Agent of the election petitioner in table No. 1 in Hall No. 2. The election petitioner has further pleaded that in the third round in table No. 6 of Hall No. 2 the ballot papers of Polling Station No. 44 Madhatari ME School were taken up for counting. Ten ballot papers marked in favour of the election petitioner have been pleaded to be wrongly rejected. According to the election petitioner a total of 420 votes were cast in his favour. Seven bundles of 50 ballot papers each, i.e., 350 votes marked in favour of the election petitioner have been pleaded to have been put in the compartment of the counting tray meant for the returned candidate. Because of the aforesaid acts, it is pleaded, 360 votes were not counted in favour of the election petitioner whereas 350 votes were wrongly counted in favour of the returned candidate. One Mickel Tirky was the Counting Agent of the election petitioner in table No. 6 of Hall No. 2. 7. The further pleaded case of the election petitioner is that one Pradip Barua was appointed as the Counting Agent of the election petitioner in the table of Assistant, Returning Officer and assigned duties in Hall No. 1. The aforesaid Pradip Barua, it is pleaded, lodged a complaint to the Assistant Returning Officer regarding anomalies in counting, but the Assistant Returning Officer instead of attending to the complaint turned out the aforesaid Counting Agent of the election petitioner out of the counting hall. The election petitioner has pleaded a specific case that a total of 1407 votes cast in his favour were wrongly counted in favour of the returned candidate and that a total of 1438 votes validity received in favour of the returned candidate was not counted in his favour thereby materially affecting the result of the election. The election petitioner has pleaded a specific case that a total of 1407 votes cast in his favour were wrongly counted in favour of the returned candidate and that a total of 1438 votes validity received in favour of the returned candidate was not counted in his favour thereby materially affecting the result of the election. 'The election petitioner in different paragraphs of the election petition has further averred that about 8.45 PM of 13.5.2001, immediately after the completion of the counting, a complaint containing request for re-counting was filed by the election petitioner before the Returning Officer. However, the returning Officer Had illegally rejected the same. On the aforesaid facts the election petitioner has prayed for the declarations already noticed. 8. The returned candidate has filed a written statement denying the allegations made in the election petition. The returned candidate in his written statement has denied the allegations made in the election petition that the arrangement made for counting of the votes were not adequate and that 60 Counting Agents were appointed by the returned candidate. According to the returned candidate, 23 Counting Agents were appointed by him as well as by the election petitioner. In the written statement filed, the returned candidate has denied the allegations made in the election petition alleging anomalies /irregularities in the counting. According to the returned candidate the counting of votes were conducted properly and without any irregularity and that the allegations made in the election petition are wholly incorrect, it is the further pleaded case of the returned candidate that the last round of counting commenced at about 5 PM and counting of votes was over at about 6.30 PM on 13.5.2001. The returned candidate has further stated that as there was no anomaly or irregularities in counting, no complaint was filed by any Counting Agent of any party alleging any such irregularity/anomaly. 9. On the pleadings of the parties, this court by order dated 18.3.2002 framed as many as eight issues of trial. The returned candidate has further stated that as there was no anomaly or irregularities in counting, no complaint was filed by any Counting Agent of any party alleging any such irregularity/anomaly. 9. On the pleadings of the parties, this court by order dated 18.3.2002 framed as many as eight issues of trial. The issues framed for trial may be conveniently set out here in below: , (1) Whether in the round No. 1 at counting Hall No. 1, Table No. 3 in respect of ballot box of No. 3 Darigali Nimna Buniadi School, 556 votes or any other number of votes polled in favour of the petitioner were counted in favour of the Respondent No. 1 and 144 votes or any other votes polled in favour of the respondent No. 1 were counted in favour of the election petitioner thereby resulting in loss of 427 valid votes to the petitioner and illegal gain of 412 votes by the Respondent No. 1? (2) Whether in round No. 1 at Table No, 6, Hall No. 1 in respect of No. 6 Missamukh LP School (East), 100 votes polled by the election petitioner were illegally received and counted in favour of the Respondent No. 1 while the petitioner lost 100 valid votes cast in his favour? (3) Whether in the round-No, 2 of Table No. 6 of Hall No. 1, in respect of No. 22A Kuworitol Muktab School (West), 302 votes polled in favour of the petrtMEMf were counted in favour of the Respondent No. 1 and 57 ballot papers polled in favour of the Respondent No. 1 were counted in favour of the petitioner thereby resulting in loss of 245 valid votes to the petitioner and illegal gain of 245 votes by the Respondent No. 1? (4) Whether in the, 2nd round of counting at Table Na I of Counting Hall No. 2, in respect: of Polling Station No, 23 Jawani LP School, the petitioner was made to lost 306 valid votes cast in his favour while the Respondent No. I illegally gained 300 votes which were officially cast in favour of the petitioner but counted and received illegally in favour of the Respondent No. 1? (5) Whether in the 3rd counting of Table No. respect of Polling Station NO. (5) Whether in the 3rd counting of Table No. respect of Polling Station NO. 44 Madhatari ME School, the petitioner was made to loss illegally 360 votes cast in his favour and the Respondent No, 1 illegally gained 350 votes which were cast in favour of the petitioner and should has been counted in favour of toe petitioner? (6) Whether the result of the election has been materially affected so far it concerns the returned candidate due to illegal rejection of valid votes of the petitioner and illegal reception of votes by the Respondent No. 1? (7) Whether the election petitioner is entitled to scrutiny and recount of the rejected ballot papers of the petitioner and the ballot papers counted in favour of the Respondent No. 1 and on such scrutiny and recount, the election petitioner is entitled to be declared elected from No. 89 Kaliabor L.A.C. having polled majority number of votes in his favour? (8) Whether the election petitioner is entitled to the relief as prayed for? 10. The election petitioner examined seven witnesses in the case whereas the returned candidate examined eight witnesses on his behalf. Five documents were exhibited on behalf of the election petitioner whereas seventeen documents have been exhibited on behalf of the returned candidate. 11. Insofar as documents exhibited by the respective parties are concerned, the election petitioner has brought on record the application filed by him for re-counting (Ext-Pl); the order of the Returning Officer rejecting the prayer for re-counting (Ext-P2); the receipt issued by the Returning Officer in token of receipt of Ext-Pl (Ext-P3); the final result sheet (Ext-P4) and the appointment of the election agent of the election petitioner (Ext-P5). 12. The certificates signed by the Counting Agents of the candidates after each round of counting have been exhibited by the returned candidate as Ext-Rl to R12. Out of the aforesaid Exts-Rl to Rl 2, Exts-Rl to R6 contain the signature of PW 6 Pradip Barua, the Counting Agent of the election petitioner in table of the ARO in Hall No. 1. The said signatures proved by PW-6 have been exhibited as Exts-RI/1 to R6/1. The signatures of the AROs appearing in Exts-Rl to Rl 1 have also been proved through the returning Officer (RW-3). Exhibits-R13 to R17, brought on record by the returned candidate, are the appointment order of the Counting Agents of the returned candidate. 13. The said signatures proved by PW-6 have been exhibited as Exts-RI/1 to R6/1. The signatures of the AROs appearing in Exts-Rl to Rl 1 have also been proved through the returning Officer (RW-3). Exhibits-R13 to R17, brought on record by the returned candidate, are the appointment order of the Counting Agents of the returned candidate. 13. Insofar as the witnesses examined by both parties are concerned, while the election petitioner and the returned candidate have examined themselves as PW1 and RW1, the Counting Agents of both the parties assigned to the tables in respect of which anomalies have been alleged were examined by both the parties. The Election Agents of both the candidates have also been examined. Additionally, the returned candidate has examined the returning Officer as RW3. 14. The election petitioner, examined as PW 1 in the case, has in his evidence deposed that the anomalies and irregularities as stated in the election petition had occurred in the counting of votes on 13.5.2001, PW 1 has stated that the arrangements made for holding the counting of votes were not adequate. The specific allegations contained in the pleadings with regard to rejection of valid votes cast in favour of the election petitioner; counting of votes, marked in favour of the election petitioner, in favour of the returned candidate and the votes illegally counted in favour of the returned candidate as well as the votes which were not counted in favour of the election petitioner have been deposed to. According to the election petitioner the anomalies in the counting process were conveyed to him by his Counting Agents;. The election petitioner has also deposed that PW 6 Pradip Barua hadfferied to lodge a complaint with regard to the anomalies in counting with the ARO in Hall No. 1 one Ranjit Mahanta, but the said agent of the election petitioner was physically assaulted and turned out of the Counting Hall. PW 2 Golap Saikia and PW 5 Abu Siddik were the Counting Agents of the election petitioner in table No. 6 and 3 respectively in Hall No. 1 PW 3 Sankar Gupta and PW 4 Mickel Tirkey were Counting Agents of the election petitioner in table No. 1 and 6 respectively in Hall No. 2. The aforesaid witnesses examined on behalf of the election petitioner have deposed with regard to the anomalies in the respective tables to which they were assigned. The aforesaid witnesses examined on behalf of the election petitioner have deposed with regard to the anomalies in the respective tables to which they were assigned. The evidence of the aforesaid witnesses are to the effect that the ballot papers marked in favour of the election petitioner were wrongly rejected and bundles of ballot papers of 50 each in favour of the electron petitioner were wrongly counted in favour of the returned candidate. The number of such ballot papers in respect of which anomalies have been deposed to by the said witnesses are the same as mentioned in the pleadings and the issues framed on the basis thereof. According to PWs 2, 5 and 6, as Counting Agents they Have maintained some records of the counting process and in such records the anomalies that had occurred had been recorded. According to the aforesaid witnesses PWs 2, 5 and 6, after the election process was over, the said records were handed over to the party functionaries in the party office. PWs 3 and 4 did not admit as to keeping of any records. PW 7 Sujit Lakra, the Election Agent of the election petitioner, in his evidence has stated that on the counting day when he was moving from table to table to oversee the counting process, he received verbal information from his-Counting Agents, as regards anomalies in counting. According to PW 7 he had reduced the said complaint into writing and had handed over the said writings to the election, petitioner before filing of the election petition. 15. The returned candidate who had examined himself as RW 1 denied all the allegations made. According to RW 1 he had gone to the counting hall only at about 6.30 PM when the actual process of counting was over. RW 1 in his evidence deposed that while he was present in the counting hall, no information was conveyed to him by any body regarding; any anomalies in the counting process. RW 1 in his evidence has further deposed, that he was informed that an application for recounting had been filed by the election petitioner; but he was not aware of the grounds on which re-count was sought. The returned candidate has examined RW 2 Anjan Kumar Borah and RW 4 Nilakanta Saikia who were his Counting Agents in table Nos. 3 and 6 respectively in Hall No. 1. The returned candidate has examined RW 2 Anjan Kumar Borah and RW 4 Nilakanta Saikia who were his Counting Agents in table Nos. 3 and 6 respectively in Hall No. 1. RW 5 Puspa Bhuyan and RW 6 Triguneswar Goswarni, who were the Counting Agents of the returned candidate in table Nosv 11 and 6 respectively in Hall No. 2, were also examined. RW 7 Prasanta Bdrah was the Counting Agent of the returned candidate in ARO's table in Hall , No. 2, RW 8 Dipak Bhuyan was the Election Agent of the returned candidate. The evidence of RWs.2; 4; 5 and 6 (Counting Agents) would go to show that the aforesaid witnesses have denied the allegations of anomalies in the counting process. According to RW 7 also no such anomaly took place in the counting RW 8 in his deposition has stated that no complaint, with regard to any anomaly in the counting process; was lodged by any of the Counting Agents of any party. 16, The Returning Officer has been examined as RW 3 in the case. According to this witness there was no complaint from any quarter with regard to the counting process. There was no irregularity in the counting of votes and counting was conducted in a peaceful and orderly manner. RW 3 has proved the signatures of the ARO appearing in Exts-Rl to Rl 1. According to this witness after receipt of the complaint/application for re-counting (Ext-Pl) tie had sent a message to the Election Commission of India informing the said authority about the complaint lodged and the prayer for re-count. This witness has deposed that it is only after obtaining orders from the Election Commission of India that the result was declared at 0015 Hours on 14.5.2001. 17. Before adverting to the arguments and counter arguments made by the learned counsel for the parties, the law on the point may be conveniently dealt with at this stage. The very weighty arguments advanced by the learned counsels for the parties do not seem to indicate that there is any controversy as regards the law that should be applied to the facts of the case. The very weighty arguments advanced by the learned counsels for the parties do not seem to indicate that there is any controversy as regards the law that should be applied to the facts of the case. Though elaborate arguments has been made to persuade the court to take one view or the other on the basis of the evidence on record, the learned senior counsel appearing on behalf of the parties have been content to rely on a single case law which is to the effect that the verdict of the electorate as contained in the ballot box is sacrosanct and the same should not be reopened except for strong and compelling grounds. Mr. Bhuyan, learned senior counsel, in the course of his argument, has relied on the decision of the Apex Court in the case of Mahendra Pal Vs. Shri Ram Dass Malanger & Ors, reported in JT 2002 (2) SC 396, (2002) 3 SCC 457 . A perusal of the aforesaid judgment, which contains an elaborate recapitulation of the case law on the point would go to show that notwithstanding the fact that several decades have passed in the mean time, the ratio of the law reported in AIR 1964 SC 1247, relied on by Mr. J.M. Choudhury, learned senior counsel for the returned candidate stands consistently followed. The applicability of the aforesaid proposition, i.e., that the verdict of the electorate ought not to be reopened except for strong and compelling reasons, now has to be applied to the facts of the case in the light of what has been brought out by the evidence adduced by the parties. 18. Mr. S.N. Bhuyan, learned senior counsel for the petitioner has advanced the argument that the election petitioner through his witnesses has brought on record the best possible evidence with regard to the anomalies in counting. Such anomalies, it is argued, can only be deposed to by the persons present in the counting hall who are bound to be workers and supporters of the respective candidates who had worked as Counting Agents. Such anomalies, it is argued, can only be deposed to by the persons present in the counting hall who are bound to be workers and supporters of the respective candidates who had worked as Counting Agents. According to the learned senior counsel for the election petitioner, the witnesses examined on behalf of the election petitioner, particularly the Counting Agents, have been consistent in their deposition with regard to the anomalies that had occurred and such evidence of the Counting Agents receive full corroboration from the evidence of the other witnesses examined on behalf of the election petitioner. On the other hand, the witnesses examined by the returned candidate are contended to be of doubtful veracity inasmuch as a tendency to suppress the correct facts, according to the learned counsel, is clearly discernible from the evidence of the said witnesses. Mr. Bhuyan, learned senior counsel has argued that the witnesses examined by the returned candidate in their depositions have denied the allegations in a parrot like manner; they are unable to depose as to what is the number of doubtful votes and the number of votes secured by each candidate. The learned counsel argued that the denials made by the witnesses of the returned candidate are vague and that there is no specific denial with regard to the specified number of votes in respect of which anomalies that had been deposed to by the witnesses of the election petitioner. Furthermore, the learned counsel has argued that all the witnesses of the returned candidate, to show that no anomaly had occurred in the counting process, have insisted that all through out the process of counting from 8 O'clock in the morning till 6.30 O'clock in the evening they have not gone out of the counting hall. This, it is argued, is unnatural and opposed to normal human conduct which makes the witnesses of the returned candidate highly doubtful. Mr. Bhuyan, learned senior counsel further sought to fortify his arguments by relying on Ext-Pl, which he contends to be a contemporaneous document. According to the learned counsel, the grounds on which re-count was sought as mentioned in Ext-Pl are the very grounds on which the instant election petition has been filed. Mr. Bhuyan, learned senior counsel further sought to fortify his arguments by relying on Ext-Pl, which he contends to be a contemporaneous document. According to the learned counsel, the grounds on which re-count was sought as mentioned in Ext-Pl are the very grounds on which the instant election petition has been filed. Therefore, according to the learned counsel for the petitioner, the case sought to be brought by the election petitioner in the pleadings and by the evidence adduced it is not an afterthought but is fully supported by a very contemporaneous document which is also corroborated fey the evidence brought by the election petitioner. Mr. Bhuyan has also argued that the grounds of rejection of the prayer for re-count as contained in Ext-P2, i.e., the order of die Returning Officer are ex facie not tenable. The grounds cited are highly erroneous as well as extraneous and, therefore, the order contained in Ext-P2 has been passed for extraneous and collateral reasons. On the aforesaid basis, the learned counsel has 'Contended, that an inference should be drawn by the court that the Returning Officer had acted in a partisan manner and had tried to fevour the returned candidate. According to tie learned counsel, such partisan conduct of die Returning Officer makes his evidence unworthy of credence. 19. Mr. J.M.Choudhury, learned senior counsel appearing for the returned candidate the very outset has contended that the infirmities, if any, in the order of rejection of the prayer for re-count as contained in Ext-P2 would not be a very relevant factor for deciding the entitlement of the election petitioner to the reliefs sought for in the election petition. The entitlement of 1he election petitioner is to he judged not on the correctness of the reasons recorded in the order passed by the returning Officer but on the basis of the materials adduced before the court in the course of the trial of the pre sent case. Leaned counsel has argued that tee prayer fix re-count would be granted by the court only on full satisfaction that the entitlement of the petitioner for grant of such relief has been made out. Leaned counsel has argued that tee prayer fix re-count would be granted by the court only on full satisfaction that the entitlement of the petitioner for grant of such relief has been made out. Alternatively, it has been argued by the learned counsel, that the order of the Returning Officer contained in Ext-P2 contains cogent and relevant materials for the conclusion reached by the Returning Officer and no infirmity can be attributed to the decision reached by the Returning Officer. Learned counsel appearing for the returned candidate has further argued that the evidence of the witnesses examined by the election petitioner would go to show that the records of the alleged anomalies in the counting process were maintained by PWs 2, 5 and 6 whereas the PW 7 had also admitted in his evidence that notes and records regarding the anomalies in the counting process maintained by the Counting Agents were collected by him and the same were handed over to the election petitioner before filing of the election petition. The learned counsel has, therefore, contended that the evidence in the form of contemporaneous documents being available, it was incumbent on the part of the election petitioner to produce such materials before the court. The same not having been done there is an inherent lacuna in the evidence of the petitioner's witnesses which makes such evidence unworthy of credit. That apart, the learned counsel, Mr. Choudhury, has argued that Ext-Rl to R6, the certificates to the effect that counting was satisfactory, were signed by PW 6 Pradip Barua and the said witness has also admitted his signatures in the said documents which have been marked as ExtRl/1 to Ext-R6/l. According to the learned counsel, in view of the aforesaid documentary evidence on record, the oral evidence of the petitioner's witnesses is insignificant and this court should act on the basis of the documentary evidence on record. Mr. Choudhury has further argued that though it has come on record that in the counting, one Counting Agent of each candidate was present in each table, to lend substance to his case, the election petitioner ought to have examined at least some of such Counting Agents of the other parties. Mr. Choudhury has further argued that though it has come on record that in the counting, one Counting Agent of each candidate was present in each table, to lend substance to his case, the election petitioner ought to have examined at least some of such Counting Agents of the other parties. No such witnesses, who could have partaken the character of independent witnesses, having been examined, there is an inherent lacuna in the case of the election petitioner and, therefore, the same ought not to be accepted by this court, Mr. Choudhury has also argued that though the petitioner in his pleadings as well, AS in evidence has alleged similar anomalies in respect of counting of votes of Polling Station No. 53 Surjya Hati Gaon LP School, and the witness examined on behalf of the election petitioner have deposed that on protest by the Counting Agents of the election petitioner, the bundles of ballot papers marked in favour of the election petitioner but wrongly kept in the compartment of the returned candidate were later restored, no question has been put to the Returning Officer in this regard though the Returning Officer is alleged to have made the restoration and is also alleged , apologized for the mistake. Learned counsel has also drawn the attention of the court to the evidence of RW 3, the Returning Officer, who stated that there was no anomaly in the counting process and there was no complaint received with regard to the counting. The learned counsel has submitted that there is hardly any material on record to enable the court to draw a conclusion that the Returning Officer had acted in a partisan manner. Mr. Choudhury has lastly argued that the case of the election petitioner, keeping in mind the allegations made and the denials of the returned candidate, could not have brought forward any specific case except denial of the allegations made by the election petitioner. 20. The rival submissions advanced on behalf of the parties in the light of the oral and documentary evidence on record have been duly taken note of. This court has noticed that the evidence tendered in the court are of witnesses who may be appropriately termed as partisan witnesses. 20. The rival submissions advanced on behalf of the parties in the light of the oral and documentary evidence on record have been duly taken note of. This court has noticed that the evidence tendered in the court are of witnesses who may be appropriately termed as partisan witnesses. This is but only natural keeping in mind that the allegations are with regard to the anomalies in counting in which process, hardcore supporters of the rival parties working as Counting Agents are normally associated. No fault, therefore, can be found with either side in examining the witnesses who have worked as Counting Agents. But the nature of the allegations made and the evidence which has been brought on record in support thereof by the respective parties makes the task of the court difficult and one to be exercised with the greatest of care. In a case where witnesses of both sides are highly interested and partisan, the court must take great care in scrutinizing the evidence of the witnesses before deciding to rely on any one version. To arrive at the right conclusion, the court must look into the intrinsic worth of the evidence adduced by the parties to determine which the court must minutely look into the evidence to locate any inconsistencies, contradictions and/or embellishments in such evidence. It should also be the endeavour of the court to look for corroborations/support from independent witnesses if available as well as corroboration from contemporaneous documents. 21. The allegations of anomalies in counting of the kind, brought forward by the election petitioner, are easy to make. It is equally easy to deny such allegations. But it would be the duty of the court to separate the grain from the chaff; to discredit the incredible from the credible and arrive at the right conclusion. In the instant case the election petitioner has alleged two particular kinds of anomaly, the first is that ballot papers marked in his favour were wrongly rejected thereby depriving him of legitimate votes, and secondly ballot papers marked in his favour were counted in favour of the returned candidate. Such allegations have been deposed to by the witnesses examined by the election petitioner but denied by the witnesses examined on behalf of the returned candidate. Such allegations have been deposed to by the witnesses examined by the election petitioner but denied by the witnesses examined on behalf of the returned candidate. The evidence of the witnesses examined by the election petitioner would go to show that some contemporaneous documents did exist, namely, in the form of records notes maintained by the Counting Agents at the time when the anomalies had occurred. The election petitioner has not furnished any explanation as to why the records have not been brought before the court. Rather, the evidence of the Election Agent of the petitioner PW 7 on the point is specific; he had stated that the notes maintained by him on the basis of oral information conveyed to him by the Counting Agents regarding the anomalies in the counting as well as records maintained by the Counting Agents themselves were handed over by him to the election petitioner before the election petition was filed. In a case where allegations have been made, affirmed and reiterated on one hand and denied with great vehemence and assertion on the other, the said records, if produced, could have lent a fair amount of credence to the case of the petitioner. Not only no such records have been brought in evidence; the stony silence of the election petitioner in this regard cannot but be viewed with disapproval of the court. That apart, Ext-Rl to R6 are the certificates, signed by the five Counting Agents of the candidates who were present in the counting, certifying that the counting process in the different rounds have been satisfactorily completed. PW 6 Pradip Barua, a Counting Agent of the election petitioner, has put his signatures in these documents which have been proved as Ext-Rl/1 to R6/1. The returning Officer, examined as RW 3, has deposed that counting was free from any irregularity or anomaly and the certificates with regard to satisfactory counting of votes, i.e.,Ex Rl to R6 as well asExt-R7 to R 11 were countersigned by the respective Assistant Returning Officers in the two counting halls. The suggestion advanced by Mr. Bhuyan, learned senior counsel for the petitioner that RW 3 was partisan and interested in borne out by the materials on record. RW 3 had functioned as the Returning Officer by virtue of his posting as the S.D.O. (Civil), Kaliafeor. The suggestion advanced by Mr. Bhuyan, learned senior counsel for the petitioner that RW 3 was partisan and interested in borne out by the materials on record. RW 3 had functioned as the Returning Officer by virtue of his posting as the S.D.O. (Civil), Kaliafeor. To hold the aforesaid witness be partisan would require strong proof which appears to be lacking. A mere suggestion to above effect in the cross examination of the witnesses can hardly be conclusive. The rejection of the prayer for re-count by RW 3 would also not make him a partisan witness unless there are materials to hold that the rejection was promoted by reasons not bona fide. The argument of Mr. Bhuyan is that the rejection of the prayer for re-count was wrongly made. A wrong order passed by an authority must be distinguished from an order lacking in bona fides. Ext-P2, on the other hand, indicates that the rejection of the prayer for re-count was supported by reasons. Even if this count is to disapprove of the reasons cited by the Returning Officer, the conclusion which the election petitioner would like this court to draw, can hardly be reached, hi the considered view of the court, the Returning Officer can therefore, be taken to have retained the character of an independent witness and in a case where respective parties have tried to bring home the case by examining highly interested witnesses, the evidence of the Returning Officer will have the effect hiking the balance in favour of the returned candidate. The degree of proof on the basis of which this court could persuade itself to consider the question of re-count of votes is wholly absent in the instant case. 22. For the reasons, discussed above I am inclined to take the view that the election petitioner, on the basis of the evidence and materials adduced to him in the course of trial of the case, has failed to generate the requisite satisfaction in the court that the counting of votes in the No. 89 Kaliabor LA Constituency was illegal, irregular and anomalous which would warrant the court to pass any order for recount and on that basis to grant 4fee declarations as prayed for in the Section petition. The election petition, therefore, stands dismissed with costs under the provisions of Section 119 of the Act which is quantified at Rs. 500.