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Gauhati High Court · body

2005 DIGILAW 191 (GAU)

Hispreachering Son Shylla v. Lambor Malngiang

2005-03-07

B.LAMARE

body2005
JUDGMENT B. Lamare, J. 1. Heard Mr. S.S. Dey, the learned Counsel for Election Petitioner and also heard Mr. S.P. Mahanta, the learned Counsel for Respondent No. l and Mr. S.R. Sen, the learned Senior counsel assisted by Mr. P.D.B. Baruah, learned Counsel for Respondent No. 2. 2. Briefly stated the case is that by notification dated 31.01.2003 the election to the Meghalaya Legislative Assembly was notified. According to the notification, the last date for filing of nomination papers was fixed on 07.02.2003. The scrutiny of nomination papers was fixed on 08.02.2003 and the last date for withdrawal of nomination papers was 10.02.2003. The date of polling was fixed on 26.02.2003 and the date of declaration of the result was 01.03.2003. 3. The Petitioner and the Respondent No. 1 and nine other candidates filed their nominations for the 26-Nongkrem (ST) Assembly Constituency. The election was duly held for the said constituency on 26.02.2003 and the result was declared on 01.03.2003. The Petitioner secured a total of 2847 votes and the Respondent No. 1 secured a total of 2929 votes. The Respondent No. 1 therefore, declared elected from the 26-Nongkrem (ST) Assembly Constituency. The election Petitioner contested as a candidate of "United Democratic Party" with the symbol of "Drum". The Respondent No. 1 contested from "Khun Hynniewtrep National Awakening Movement" (KHNAM). 4. After the result of the said election for 26-Nongkrem Assembly Constituency was declared, the election Petitioner has filed the present election petition on 11.04.2003. 5. The main contention of the election Petitioner is that the election was vitiated for the acts of commission of corrupt practices by the Respondent No. 1 which is in violation of Section 123 (1), (4) and (7) of the Representation of People Act, 1951. To support this contention, the Petitioner has alleged that the Respondent No. 1 in the course of his election campaign had canvassed that since the election Petitioner has failed to repay the loan taken by the farmers in the constituency and that if the voters who are mostly the farmers voted for the Respondent No. 1 he would repay the loan amount by himself. The Petitioner further alleged that in order to malign the Petitioner the Respondent No. 1 had distributed leaflets to the voters in collusion with Respondent No. 2 requiring the farmers to repay their loans immediately. The Petitioner further alleged that in order to malign the Petitioner the Respondent No. 1 had distributed leaflets to the voters in collusion with Respondent No. 2 requiring the farmers to repay their loans immediately. According to the election Petitioner this was collusively done to threaten the farmers for the payment of the loans and to vote for the Respondent No. 1 who promised to repay the same if he is elected. 6. The next contention of the election Petitioner is that the Respondent No. 1 visited the house of one Shri Jrod Tariang of Mawpynthin on 25.02.2003 and promised that he will replace his thatched house by a new one if he voted for him. On 25.02.2003, the Respondent No. 1 also distributed money to about 63 voters who had agreed to cast their votes in favour of Respondent No. 1. While the Respondent No. 1 distributing the money to the voters he also asked one Shri Shlan Kharmawphlang to write down their names in a register for the records of the Respondent No. 1 if he is elected. Such acts of the Respondent No. 1 constitute the corrupt practice of 'Bribery' according to the Petitioner. 7. The Respondent No. 1 contested the above allegations of the Petitioner by filing his written statement on 06.11.2003. The Respondent No. 2 also contested the allegations of the Petitioner by filing his written statement on 07.11.2003. The contention of both the Respondents is a complete denial of the allegations made by the Petitioner in his election petition. According to the Respondent No. 1, the allegation of corrupt practices against him is totally baseless and false. The Respondent No. 1 also denied that he committed any act to constitute bribery, as he never offered any bribe to any voters during his election campaign. The Respondent No. 1 also contended that he never made any such promise to repay the loan taken by the farmers nor to replace their thatched houses with new one. 8. The Respondent No. 2's main contention is that the alleged notices were issued at his own instance in performing his official duties as a Branch Manager of the Bank 'Ka Bank Nongkyndong Ri Khasi Jaintia' at Smit Branch. The notices were never distributed through the Respondent No. 1 but the same were distributed through the employees of the Bank. There was no basis of the allegations of the Petitioner. The notices were never distributed through the Respondent No. 1 but the same were distributed through the employees of the Bank. There was no basis of the allegations of the Petitioner. 9. On the basis of the pleadings of the parties this Court has framed 8 (eight) issues on 01.03.2004 which are as follows: (i) Whether the Election Petition disclosed any cause of action or triable issues to be tried by this Court. (ii) Whether the Election Petition suffers from non-joinder and mis-joinder of necessary parties. (iii) Whether the farmers borrowing loans from the Bank were induced to go in favour of the Respondent No. 1 on a promise that Respondent No. 1 shall repay their loans if he is elected. (iv) Whether the notices annexed to the Election Petition were caused to be printed by the Respondent No. 1 in collusion with Respondent No. 2 thereby amounting to corrupt practices as defined under Section 123(iv) of the R.P. Act. (v) Whether the Respondent No. 1 and 2 have published the notices with the intention to induce the voters to vote for the Respondent No. 1 which constituted corrupt practice as defined under Section 123(vii) of the R.P. Act. (vi) Whether the notices annexed to the Election Petition were printed at the instance of the authorities of the Bank and not by way of collusion between the Respondents No. 1 and 2. (vii) Whether any inducement by Respondent No. 1 to get the voters in his favour by inducing the voters that they will get rid of the loan if he is elected and by this inducement in the polling station at Smit, the Respondent No. 1 has secured 626 votes and the election petitioner has secured 429 votes which created a difference of 197 votes and whether this has materially affected the result of the election. (viii) Whether the Respondent No. 1 has committed any corrupt practices to constitute bribery within the meaning of Section 123(i) of the RP Act. The Petitioner has examined ten witnesses including himself in support of his case. The Respondent No. 1 also examined fourteen witnesses including himself and the Respondent No. 2 examined two witnesses including himself in support of his case. 10. Before discussing the evidence on records it would be better to examine the position of law with regard to the appreciation of the evidence of record. The Respondent No. 1 also examined fourteen witnesses including himself and the Respondent No. 2 examined two witnesses including himself in support of his case. 10. Before discussing the evidence on records it would be better to examine the position of law with regard to the appreciation of the evidence of record. With regard to the evidence of corrupt practices, we have to examine the burden of proof in this regard. Allegation of corrupt practice is quasi-criminal in nature or is substantially akin to criminal charges, because it not only vitiates the election but also disqualifies the person concerned from taking part in it for a considerably long time, or may even extinguish the man's public life. So a grave and heavy onus rests on the accuser to establish it by clear, cogent and reliable evidence beyond reasonable doubt. It cannot be established by a mere balance of probabilities. It therefore, follows that even strong suspicion would not be sufficient. Oral evidence has to be judged with greatest care as very often the evidence is of partisan witnesses like workers, agents, supporters and friends who have to be regarded as highly interested. So corroboration from independent source has to be sought for as a matter of prudence to lend assurance to the verbal testimony. 11. We may now examine the case issue wise; the First issue is whether the election petition discloses any cause of action or triable issues to be tried by this Court. Issue No. 2 is whether the election petition suffers from non-joinder and mis-joinder of necessary parties. These two issues can be taken up together. In the election petition, the Petitioner has taken the pleas which has to be enquired by the Court. In the election petition, the Petitioner has made the returning candidate as a Respondent and also the Manager of the Bank which allegedly issued the notices in question. There is no prayer in election petition to declare any of the loosing candidates as elected. Therefore, the petition does not suffer from non-joinder and mis-joinder of the parties. The election petition also disclosed that there are issues which are to be enquired into by this Court. Therefore, the Issue No. 1 is answered in the affirmative and the Issue No. 2 is answered in the negative. 12. Therefore, the petition does not suffer from non-joinder and mis-joinder of the parties. The election petition also disclosed that there are issues which are to be enquired into by this Court. Therefore, the Issue No. 1 is answered in the affirmative and the Issue No. 2 is answered in the negative. 12. The Issues No. 4, 5 and 6 are inter connected with the borrowing of loan by the farmers from the Bank of which Respondent No. 2 is a Branch Manager at the relevant time. In order to appreciate the merits of the case on these issues may be referred to the evidence of records. 13. The Petitioner who was examined as P.W. 1 has stated that on 24.02.2003, the Respondent No. 1 held an election meeting at Smit Pdengshnong in the compound of Govt. Basic School from 9 A.M. to 10.30 A.M. After the meeting, the Respondent No. 1 distributed the notices signed by the Respondent No. 2. The notices were distributed to all the persons present in the meeting and also to the people found in the village. He also exhibited notices as Ext. P1. The P.W. 1 also stated that on the same day he held a meeting in his compound at Lad Nongkrem and while the meeting was in progress, one Mr. Fighter Wankhar came and showed him the notices received from one Mr. Elvis Kharmuid who was the General Secretary of the Nongkrem Circle of the KHNAM. The P.W. 1 also stated that he instructed his Election Agent Shri Strongman Kharmih to report the matter to the returning officer. Although this witness alleged that the notices were distributed but in his evidence he never stated that the issue of the said notice has adversely affected the election. Moreover in his cross examination he stated that although the demand notices were issued by the Bank to the farmers to repay their loans since the year 1989 onwards continuously for about ten years, but it has no effect with regard to his election in 1993. The P.W. 1 also said that he did not see about the distribution of the notices personally. He cannot also say who has distributed the notices. He did not also ask the Respondent No. 2 as to whether he has distributed the notices through the Respondent No. 1. The P.W. 1 also said that he did not see about the distribution of the notices personally. He cannot also say who has distributed the notices. He did not also ask the Respondent No. 2 as to whether he has distributed the notices through the Respondent No. 1. P.W. 1 also said that I have not mentioned the number of notices given to me by Fighter Wankhar. P.W. 1 further stated in his cross examination that the bunch of notices received by him from Fighter Wankhar were retained by him and were not distributed. From the above statement of the P.W. 1, in cross examination it shows that the notices used to be distributed for about ten years continuously and it has no effect to the election of the Petitioner. Moreover the Petitioner did not know who distributed the notices even the bunch of notices which were handed over to the Petitioner by Fighter Wankhar those bunch of notices were not produced in the Court. Therefore, the Petitioner has failed to prove that those notices were distributed and even if distributed it has no effect of his election. Further P.W. 1 in his cross examination admitted that he did not report to the police nor to the returning officer about the distribution of the notices. This statement contradicted his own statement in chief that he asked his election agent to report the same to the Returning Officer. 14. P.W. 2 Shri Kyrshanbor Rynjah in his deposition has stated that during the election campaign the Respondent No. 1 asked him to do some work for him and one day the brother of Respondent No. 1 Solas Malngiang came to his residence and brought one slip to type the notice and that notice relates to the repayment of loans by the farmers in the Constituency. He prepared the notice in his computer and the brother of Respondent No. 1 took the floppy from him which he prepared in his computer. He also proved Ext. P1 which is a notice. He also stated that on 24.2.2003 there was a meeting at Smit held by Respondent No. 1 in which he also attended. In this meeting he saw that Ext. P1 was distributed to the voters in course of the meeting. The notices were distributed by the Respondent No. 1 along with his helpers. P1 which is a notice. He also stated that on 24.2.2003 there was a meeting at Smit held by Respondent No. 1 in which he also attended. In this meeting he saw that Ext. P1 was distributed to the voters in course of the meeting. The notices were distributed by the Respondent No. 1 along with his helpers. In the cross examination this witness stated that he cannot remember the exact date when the floppy was made but it was before the 20th February, 2003. He also stated that when he composed the floppy he was alone at that time. It may be noted that this witness was the supporter of Respondent No. 1 during the election. The credence and reliability of the evidence of this witness is doubtful. It cannot be said that after he has supported the Respondent No. 1 he would produce the floppy which he could have composed after the alleged notices came out only to support the election Petitioner and betrayed the person whom he has supported during the election. 15. P.W. 5 Shri Lesto Singh Kharbyngar in his deposition stated that he is a president of the Managing Committee of the School where the Respondents held the election meeting on 24.2.2003. He accepted that he granted permission for holding the meeting in Govt. L.P. School, Pdengshnong, Smit, he did not say anything about the election. 16. P.W. 6 Wanda Mawthoh in her deposition she has stated that when the meeting of the Respondent No. 1 was in progress on 24.2.2003 in the Basic School at Pdengshnong, Smit, one Kyrshan Rynjah gave her some notices to be distributed in the meeting and she distributed the notices and after that she proceeded to Shillong. However, in her cross examination, she has stated that she does not have any knowledge as to whether the notices were printed and distributed by the Bank Nongkyndong. She also stated in cross examination that Kyrshan Rynjah did not tell her that the notices were printed by him. She also did not ask Kyrshan Rynjah from where he got the notices. She did not know from where the notices originated. From her deposition it shows that this witness did not know who had caused the notices to be printed and distributed. She also did not ask Kyrshan Rynjah from where he got the notices. She did not know from where the notices originated. From her deposition it shows that this witness did not know who had caused the notices to be printed and distributed. Moreover, this witness was the supporter of the Respondent No. 1 during the election and the veracity of her evidence has to be examined with great care. The witness had changed her stance after the election was over. In the evidence on record there is no corroboration from other witnesses that the notices were distributed in the meeting. 17. P.W. 8 Michael Kharchandy in his deposition he has stated that as soon as the meeting was over, there was a distribution of numbers of pamphlets and the pamphlets were given by the Respondent No. 1 to one Elvis Kharumnuid who in turn gave them for distribution to the public. The evidence of this witness contradicts the statement of P.W. 1 when he stated that he did not see the Respondent No. 1 distributed the notices. In the cross examination this witness further stated that it is correct that in course of the meeting there was a distribution of pamphlets, notices and that statement is wrong. This witness further stated that he did not know where the notices were printed, he also did not know who printed the notices. Therefore, the evidence of this witness regarding the printing of notices by the Respondent No. 1 in collusion with Respondent No. 2 is not supported. 18. P.W. 10 Shri Than Singh Kharumnuid in his deposition stated that he did not attend the meeting of the Respondent No. 1 on 24.2.2003 as he was at home, which is adjacent to the meeting place. He received one such notice Ext. P1 from one co-villager. Although this witness stated that he knew about this notice but since he did not attend the meeting he cannot say he has seen any distribution of the notices. In the cross examination, this witness denied that since he was at home, he did not see the distribution of the notices as at the time of distribution he came out of his house. The distance of his house from the meeting place is about 100 meters. In the cross examination, this witness denied that since he was at home, he did not see the distribution of the notices as at the time of distribution he came out of his house. The distance of his house from the meeting place is about 100 meters. The evidence of this witness was not supported by any other witnesses that any other witnesses were present along with him when the notices were distributed. 19. The Respondent No. 1 who was examined as RW 1 in his statement denied that the notices as per Ext. P1 was prepared by P.W. 2 Kyrshanbor Rynjah at his instruction. He also denied about the distribution of the notices. This witness also denied that P.W. 2 Kyrshanbor Rynj ah supported him during the election. Even in the cross examination RW 1 denied that notices were prepared by P.W. 2-Kyrshanbor Rynjah at his instruction. There is no suggestions to this witness RW1 that notices were distributed during his meeting on 24.2.2003 which was held at Smit. RW 2-Phrickson Lyngdoh did not say anything about the printing and distribution of notices. Therefore, from this evidence of this witness, although this witness attended the meeting of the Respondent No. 1 at Smit but no suggestion was put to this witness that such notices were distributed by the Respondent No. 1. 20. RW 3-Mrinal Malakar alias Guddu was the owner and driver of the taxi hired by P.W. 2-Kyrshanbor Rynjah, his taxi was hired for attending the KHNAM party meeting at Jaiaw. He knew nothing about the meeting at Smit as he was asked only to attend the meeting at Students' field Jaiaw. 21. RW 4-Wanbha Kharrngi did not say anything about the printing and distribution of the notices. 22. RW 5-Smti Waniar Mawrie also did not say anything about the printing and distribution of the notices. 23. RW 7-Donbor Marbaniang stated that he attended the last meeting of the Respondent No. 1 at Smit on 24.2.2003, the meeting started at 8 A.M. and concluded at 9 A.M. Although this witness attended the meeting on 24.2.2003, there was no suggestion to him that there was distribution of notices in the meeting. 24. 23. RW 7-Donbor Marbaniang stated that he attended the last meeting of the Respondent No. 1 at Smit on 24.2.2003, the meeting started at 8 A.M. and concluded at 9 A.M. Although this witness attended the meeting on 24.2.2003, there was no suggestion to him that there was distribution of notices in the meeting. 24. RW 8-Ritswell Lymbai also attended the meeting of the Respondent No. 1 at Smit on 24.2.2003 and stated that the meeting started at 8 A.M. and concluded at 9 A.M. In the meeting, three persons addressed the meeting and Respondent No. 1 also spoke in the meeting. There is no suggestion to this witness about the printing and distribution of notices by the Respondent No. 1 in that meeting. 25. RW 9-Haraes Thangkhiew also attended the meeting of Respondent No. 1 at Smit on 24.2.2003 and stated that the meeting started at 8 A.M. and ended at 9 A.M. He also presided the meeting. This witness who presided the meeting was the proper person to know about the distribution of the notices but no suggestion was put to this witness regarding the printing and distribution of the notices. 26. RW 10-N. Swell Pyngrope in his deposition has stated that he attended the election meeting of Respondent No. 1 on 24.2.2003 at Smit and the meeting started at 8 A.M. and ended at 9 A.M. He stated that the Respondent No. 1 in his speech has called upon the voters to work together for the benefit of the people of the constituency. In the cross examination there is no suggestion made to this witness about the distribution of the notices, although he was present all along in the meeting. 27. RW 11-Shri Glosterbert L. Nongbri in his deposition has stated that on 24.2.2003 the election Petitioner had a meeting at Led Nongkrem where he was also present from 9 A.M. to 4 P.M. He also stated that in that meeting there were no such volunteers from KHNAM party to distribute the notices to the public. In the cross examination, there is no suggestion to this witness that during the meeting one Fighter Wankhar came rushing to the Petitioner and showed him the notices received from one Elvis Kharumnuid. In the cross examination, there is no suggestion to this witness that during the meeting one Fighter Wankhar came rushing to the Petitioner and showed him the notices received from one Elvis Kharumnuid. The failure of the Petitioner to cross the witness on this point inspite of the fact that he was present in the meeting held by the Petitioner on 24.2.2003, shows that the statement of the Petitioner that Fighter Wankhar has handed over to him a bunch of notices is a made out story. 28. RW 12-Smti Min Mukhim stated that she was present in the meeting of Respondent No. 1 on 24.2.2003 and the meeting started at 8 A.M. and ended at 9 A.M. There is no suggestion to this witness also that notices were distributed by the Respondent No. 1 in the meeting, although she was present in the meeting. 29. RW 13-Elvishon Kharumnuid stated that he was present in the meeting of Respondent No. 1 held on 24.2.2003 at Smit which started at 8 A.M. and ended at 9 A.M. He also stated that after the meeting he left for the rally of the KHNAM party at Students' filed Jaiaw, Shillong and it was only in that meeting he met Kyrshanbor Rynjah P.W. 2 and P.W. 2 enquired from him about the meeting at Smit. The evidence of this witness contradicted the evidence of P.W. 2 who has stated that on 24.02.2003, he saw Ext. P1 the notices were distributed to the voters in course of the meeting by the Respondent No. 1. There is no cross examination to this witness that Kyrshnabor Rynjah was present in the meeting on 24.02.2003 and that Kyrshanbor Rynjah saw the distribution of the notices by the Respondent No. 1. Therefore, failure of the Petitioner to cross this witness on this vital point lends credibility to the fact that Kyrshanbor Rynjah was not present in the meeting at Smit on 24.02.2003. There is no other evidence or statement made by other witnesses that P.W. 2 Kyrshanbor Rynjah was present in that meeting on 24.02.2003. 30. RW 14-Silas Malngiang has stated that he had never been to the house of P.W. 2-Kyrshanbor Rynjah and he did not know his house. There is no other evidence or statement made by other witnesses that P.W. 2 Kyrshanbor Rynjah was present in that meeting on 24.02.2003. 30. RW 14-Silas Malngiang has stated that he had never been to the house of P.W. 2-Kyrshanbor Rynjah and he did not know his house. According to P.W. 2, RW 14 was the person who came to meet him at his house and requested P.W. 2 to print the notice in his computer and on the request of RW 14 the notice was printed in the computer of P.W. 2. No such suggestion was made to this witness that he went to the house of P.W. 2 and collected the floppy from his house. 31. In order to appreciate the facts with regard to the printing and publishing of the notice Ext. P1, the evidence of the Respondent No. 2 who was examined as RW15 will have more bearing in the matter. This witness in his deposition stated that during his tenure as Branch Manager at Smit he had personally contacted the loanees and issued notices and reminders for repayment of the loans granted to the farmers which were sanctioned during his tenure as well as by his predecessor from the Smit Branch of the Bank. He admitted that Ext. P1 is one such notice issued by the Bank under his signature. He had to issue the notices because some of the loanees were under the impression that their loans have been waived. He further stated that the notices were issued on the instructions of the higher authorities and after obtaining approval from the higher authorities he sent notices for printing and the same were distributed through the messenger. The notices were distributed in the Smit Bazar as most of the borrowers are from Smit and neighbouring villages. In the cross examination there is no suggestion to this witness that notices were printed by him in collusion with Respondent No. 1. There is also no suggestion that notices were distributed on 24.2.2003 in the election meeting of the Respondent No. 1 held at Smit. There is also no suggestion that notices were not distributed by the messenger of the Bank. No suggestion also made to the witness that notices were printed in collusion with Respondent No. 1 and that the same were distributed by the Respondent No. 1. There is also no suggestion that notices were not distributed by the messenger of the Bank. No suggestion also made to the witness that notices were printed in collusion with Respondent No. 1 and that the same were distributed by the Respondent No. 1. In absence of such suggestion to the witness who is the Respondent No. 2 and the authority who printed and distributed notices, the Petitioner could not make out any case that the notices were caused to be printed by the Respondent No. 1 in collusion with Respondent No. 2. 32. In the evidence of the witnesses as discussed above, there is nothing to show that the issue of notices were made with intention to induce the voters to vote for the Respondent No. 1. No evidence also led by the Petitioner in his deposition or in the deposition of his witnesses that the printing and publishing of such notices has induced the voters to vote for the Respondent No. 1, which had materially affected the election of the Petitioner. The Petitioner in his election petition in paragraphs 11 and 12 alleged about the printing and publishing and distributing of notices but no where he has stated that such action has materially affected his election. 33. From the above discussions, the Petitioner therefore, has failed to prove that the Respondent No. 2 has committed an act collusively with Respondent No. 1 which constituted corrupt practices as defined under Section 123(iv) of Representation of People Act. Issues No. 4, 5 and 6 are therefore, decided against the Petitioner. 34. The next issues, Issues No. 3 and 7 are inter connected and are taken up together. Issue No. 3 is whether the farmers borrowing loans from the Bank were induced to vote in favour of Respondent No. 1 on the promise that the Respondent No. 1 shall repay their loans if he is elected. Issue No. 7 is whether any inducement by the Respondent No. 1 to get the voters in his favour by inducing the voters that they will get rid of the loans if he is elected and by this inducement, in the polling station at Smit, the Respondent No. 1 has secured 626 votes and the election Petitioner has secured 429 votes which created a difference of 197 votes and whether this has materially affected the result of the election. 35. 35. On the above issues, the Petitioner in his deposition did not make any statement regarding the inducement made by the Respondent No. 1. The only statement made by the Petitioner in his deposition is that on the night of 25.02.2003, the Respondent No. 1 visited the house of one Jrod Tariang of Mawpynthih village and asked the house owner Jord Tariang that he should vote in his favour and in return he will replace the thatched house by a good one. He also stated after visiting the house of Jrod Tarians the Respondent No. 1 went to the other localities of Mawpynthih village and asked the voters to vote in his favour and that he would repay the loans which they have taken from the Bank. However, in the cross examination P.W. 1 said that he did not meet the Respondent No. 1 on 25.02.2003 at Mawpynthih village. He also did not meet the Respondent No. 1 anywhere during that day. He also said that he only heard that Respondent No. 1 went to Mawpynthih village on the night of 25.02.2003. This statement of the RW 1 in his Cross examination shows that his statement in the examination chief that the Respondent No. 1 promised the voters to repay their loans is only a hearsay and is not reliable. 36. P.W. 2 Kyrshanbor Rynjah stated that the Respondent No. 1 assumed the farmers if he wins the election he will help the farmers to repay the loans by giving them money. He also stated that on 24.2.2003 there was a meeting at Smit held by the Respondent No. 1 in which he also attended. But this statement of the P.W. 2 was contradicted by RW3 when RW3 stated that Kyrshanbor Rynjah took his taxi for attending the KHNAM rally at Students' Field, Jaiaw, Shillong. RW 3 is an owner of a taxi which P.W. 2 Kyrsonbor Rynjah hired for the day and according to this RW 3 his taxi did not go to Smit on 24.2.2003. The statement of P.W. 2 was also contradicted by RW 6-Ferdean E Nongrum who was present in the taxi hired by P.W. 2 and he stated that he did not go to Smit on 24.2.2003. The statement of P.W. 2 was also contradicted by RW 6-Ferdean E Nongrum who was present in the taxi hired by P.W. 2 and he stated that he did not go to Smit on 24.2.2003. P.W. 2 himself in his cross examination further contradicted himself and the other RWs when he stated that on 24.2.2003 he was at Smit to attend the meeting of Respondent No. 1 at 8.30 A.M. and he came to Smit along with the driver and owner of the taxi. RW 3 who denied that his taxi never went to Smit on that day. Therefore, the statement of RW2 that Respondent No. 1 made such a promise is not correct. From the statement of P.W. 2 there is nothing to show that the Respondent No. 1 has induced the farmers to vote for him. He also did not make any statement that by such inducement the election of the Petitioner was affected. 37. P.W. 6-Wanda Mawthoh in her statement said that during her association with the Respondent No. 1 in the election campaign she helped him in the cause of the farmers as Respondent No. 1 had promised that in case he wins the election he would help the farmers to repay the loans. He made promise in the meeting held in my house as well as in the house of Respondent No. 1 that if we vote for him, he will help us to repay the loans. The statement of this witness contradicted all the other statement that the Respondent No. 1 made the promise in the meeting held on 24.2.2003. None of the witnesses of the Petitioner had stated that there was such a meeting in the house of this P.W. 6 and in the house of Respondent No. 1. It is totally a new story made out by P.W. 6 which is not supported by any of the P.W.s. Therefore, this statement is not reliable. Except the above witness none of the P.W.s stated about the promise of the payment of the loans by the Respondent No. 1 if he is elected. Even the above P.W.s do not corroborate each other and in fact their statements were contradictory to one and other. 38. Except the above witness none of the P.W.s stated about the promise of the payment of the loans by the Respondent No. 1 if he is elected. Even the above P.W.s do not corroborate each other and in fact their statements were contradictory to one and other. 38. The Respondent No. 1 and his witnesses and other RWs totally denied the statement made by the above P.W.s. The Respondent No. 1 as RW 1 in his statement denied that he had influenced the voters to vote for him by making promise to repay the loans. There is no cross examination to RW 1 that he had induced the voters to repay the loans if he is elected. No suggestion was also made to RW1 that he has made such a statement in his election campaign that he would repay the loans of the farmers if he is elected. In the evidence of the other RWs also there is no cross examination made by the Petitioner that the Respondent No. 1 had made such a statement that he would repay the loans of the farmers if he is elected. The only suggestion made to the RWs in the cross examination is that the Respondent in his speech stated that he will look the welfare and development of the constituency in case he is elected. There is also no suggestion to the RWs by the petitioner in the cross examination that the election of the Petitioner has been materially affected by the alleged promise made by the Respondent No. 1 to repay the loans of the farmers. 39. From the statement of the witness on the above two issues as discussed above, it is seen that the Petitioner has failed to make out of a case that the farmers who borrowed loans from the Bank were induced to go in favour of the Respondent No. 1 on a promise that the Respondent No. 1 shall repay their loans if he is elected. The Petitioner and his witnesses did not make any statement about the inducement made by the Respondents in the polling station at Smit that he would repay the loans of the farmers if he is elected and by such inducement the Petitioner could secure only 429 votes whereas the Respondent No. 1 secured 626 votes. No evidence was led by the Petitioner and his witnesses on this point. No evidence was led by the Petitioner and his witnesses on this point. There was also no cross examination by the Petitioner in the evidence of RWs that there was such inducement made by the Respondent No. 1 and as a result of which the Petitioner got less vote than the Respondent No. 1. The Petitioner has therefore, failed to prove his case on the issues No. 3 and 7, the issues are therefore, decided against the Petitioner. 40. The next Issue No. 8 is whether the Respondent No. 1 has committed any corrupt practices to constitute bribery within the meaning of Section 123(i) of R.P. Act. 41. On this issue, the Petitioner has tried to make out the case by his evidence as well as by the evidence of P.W.s 3, 4 and 7. The Petitioner in his statement said that on the night of 25.2.2003 the Respondent No. 1 visited the house of Jrod Tariang of Mawpynthih village accompanied by one Morris Kharmawphlang of the same village and the Respondent No. 1 asked Jrod Tariang that he should vote in his favour and in return he will replace his thatched house by a good house. After visiting the house of Jrod Tariang, the Respondent No. 1 went to the other localities of Mawkynthih village and asked the voters to vote in his favour. P.W. 1 also stated that Respondent No. 1 distributed money to about sixty voters and each of them received Rs. 500/-. Jrod Tariang was not examined in this case. Morris Kharmawphlang was examined as P.W. 9 and he stated that the Respondent No. 1 came to our village on 24 and 25 February 2003. On 25.2.2003, the Respondent came to Mawkynthih village and promised that he will reconstruct the house of Jrod Tariang if he is elected. Thereafter, he met the people individually he did not know what the Respondent No. 1 was doing while meeting the people in the village. The Respondent No. 1 visited Rangkyrshel village. On that day P.W. 9 went to Iew Pamthiah village and asked the Respondent No. 1 to distribute a sum of Rs. 500/- each to the people and the people who received the money were Shri Khrod Tariang, Shining Marbaniang, Blis Kharmawphlang and Bli Kharmawphlang. He also stated that about 40-45 people received money from the Respondent No. 1 on that night. 500/- each to the people and the people who received the money were Shri Khrod Tariang, Shining Marbaniang, Blis Kharmawphlang and Bli Kharmawphlang. He also stated that about 40-45 people received money from the Respondent No. 1 on that night. None of the above persons named by this P.W. 9 was examined by the Petitioner. P.W. 3 however, in cross examination has stated that it is correct that Shri Morris Kharmawphlang (P.W. 9) told me that I have received money from the Respondent No. 1. By this statement in the cross examination shows that P.W. 3 was tutored by P.W. 9 to make the statement that he received money from Respondent No. 1. Moreover P.W. 3 never said that he received money in present of other persons who also received money from the Respondent No. 1. 42. P.W. 4-Khristar Tariang stated that he received a sum of Rs. 500/- from the Respondent No. 1 on 25.2.2003. However, this witness in cross examination has stated that he did not see Shri Morris Kharmawphlang accompanying any candidate. This witness did not mention the name of any other persons who received money along with him. 43. P.W. 7-Jan Singh Lyngdoh in his examination in chief stated that on 25.2.2003 at around 10 P.M. the Respondent No. 1 came to his village Mawkynthih and gave us Rs. 500/- each and asked us to vote for him and he received a sum of Rs. 500/- from the Respondent No. 1. In the cross examination he said that besides him there were many other persons when the Respondent No. 1 came to the village on the night of 25.2.2003. They distributed the money in the house of one Mr. Shilor at Iew Pomtiah. He also stated that as soon as they received money they dispersed. P.W.s 3, 4 and 9 did not say in the evidence that the money was distributed in presence of many Ors. Therefore, the statement of this witness is contradict by the statement of P.W.s 3, 4 and 9. In the cross examination this witness said that he did not report about his receiving money either to the headman or to the police. In the cross examination this witness has admitted that Morris Kharmawphlang told him to tell the Court that he had received Rs. 500/- from the Respondent No. 1. In the cross examination this witness said that he did not report about his receiving money either to the headman or to the police. In the cross examination this witness has admitted that Morris Kharmawphlang told him to tell the Court that he had received Rs. 500/- from the Respondent No. 1. This shows that P.W. 7 is tutored witness and he made the statement of receiving money at the instance of P.W. 9-Moris Kharmawphlang. 44. The Petitioner had tried to make out the case of a bribery by making a statement in paragraph 16 of the election petition as follows: That on 14.3.2003 Shri Morris Kharmawphlang of Mawpynthih came to the Petitioner's office and told that the Respondent No. 1 visited the house of Shri Jrod Tariang of Krohpadai, Mawpynthih on the 25.2.2003 at about 6 P.M. and that in the presence of all the family members including Shri Morris Kharmawphlang, the Respondent No. 1 promised the said family that if they agree to cast their vote in favour of Respondent No. 1 he would replace their thatched house by a new one immediately after the election. Then the Respondent No. 1 rushed to Anr. locality i.e. Pdengshnong along with Shri Morris Kharmawphlang and visited many houses upto about 8 P.M. and then he rushed to Anr. locality i.e. Rangkyrshei and entered the house of Shri Shlan Kharmawphlang and the Respondent No. 1 distributed money about 63 voters who had agreed to cast their votes in favour of Respondent No. 1. While the Respondent No. 1 handed over the money to the voters, the house owner Shri Shlan Kharmawphlang write down the name and the amount paid to each voters and obtained their signatures in a Register which we kept for future held and assistance from the Respondent No. 1 in case he wins the election. The entire transaction ended at about 10 P.M. in the presence of Shri Morris Kharmawphlang who reported the aforesaid incidents to the Petitioner. This act of the Respondent No. 1 constitute the corrupt practice of 'Bribery' within the meaning of Section 123(1) of the Representation of the People Act in as much as the promise and cash payment made to the voters as aforesaid, was with the clear and sole objective of directly inducing the voters to vote in favour of Respondent No. 1. The above statement made by the Petitioner is totally contradictory to the evidence of P.W.s 3, 4, 7 and 9. The Petitioner stated that the Respondent No. 1 distributed money to 63 voters whereas P.W. 9 stated that about 40-45 people received money from the Respondent No. 1 on that night. In the above statement, the Petitioner has also said that while Respondent No. 1 handed over the money to the voters the house owner Shri Shlan Kharmawphlang wrote down the name and the amount paid to each voters and obtained signatures in a Register which he kept for future help and assistance from the Respondent No. 1 in case he wins the election. The entire transaction ended about 10 P.M. in the presence of Shri Morris Kharmawphlang. 45. The above pleadings made by the Petitioner is not supported by the P.W.s 3, 4, 7 and 9 as no statements were made by them in their deposition to this effect. Moreover, the house owner Shri Shlan Kharmawphlang was not examined by the Petitioner. According to the Petitioner the name of house owner is Shri Shlan Kharmawphlang. But according to P.W. 7, the money was distributed in the house of one Mr. Shilor at lew Pomtiah. P.W. 9 Morris Kharmawphlang did not make any such statement that the names of the recipients of the money was written down in a Register. He also never stated that the entire transactions ended at 10 P.M. On the other hand, P.W. 9 tried to make out the case that the persons who received money were Shri Khrod Tariang, Shining Marbaniang, Blis Kharmawphlag, Bli Kharmawphlang and some Ors., which was never stated in the election petition by the Petitioner. The evidence of P.W.s 3, 4, 7 and 9 are therefore, not according to the pleadings made in paragraph 16 of the electionpetition. The evidence of the said P.W.s which is beyond the pleadings in the election petition, therefore, cannot be accepted as it is only a second thought to make out the case in favour of the Petitioner. 46. The evidence of P.W.s 3, 4, 7 and 9 are therefore, not according to the pleadings made in paragraph 16 of the electionpetition. The evidence of the said P.W.s which is beyond the pleadings in the election petition, therefore, cannot be accepted as it is only a second thought to make out the case in favour of the Petitioner. 46. With regard to the acceptance of the evidence which are not raised in the pleadings, the Apex Court in the case of Ravinder Singh, Appellant v. Janmeja Singh and Ors., Respondents reported in AIR 2000 SC 3026 has held that it is an established proposition that no evidence can be led on a plea not raised in the pleadings and that no amount of evidence can cure defect in the pleadings. 47. The Apex Court in the case of D. Venkata Reddy, Appellant v. R. Sultan and Ors., Respondents reported in AIR 1976 SC 1599 in paragraph 4 of the judgment as laid down the law for the Petitioner to prove his case. The Apex Court has observed as follows: Another principle that is equally well settled is that the election Petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi-criminal charge the same must be proved beyond any shadow of doubt. Where the election Petitioner seeks to prove charge by purely partisan evidence consisting of his workers, agents, supporters and friends, the court would have to care and caution, scrutiny and circumspection, and would, as a matter of prudence though not as a rule of law, require corroboration of such evidence from independent quarters, unless the Court is fully satisfied that the evidence is so credit-worthy and true, spotless and blemishless, cogent and consistent, that no corroboration to lend further assurance is necessary. It has to be borne in mind that the attempt of the agents and supporter of the defeated candidate is always to get the election set aside by means fair or foul and the evidence of such witnesses, therefore, must be regarded as highly interested and trained evidence which should be acted upon only if the Court is satisfied that the evidence is true and does not suffer from any infirmity. Where, however, the evidence led by the election Petitioner even though consistent is fraught with inherent improbabilities and replete with unnatural tendencies, the Court may refuse to accept such evidence, because consistency alone is not the conclusive test of truth. Judicial experience shows that sometimes even a tutored or parrot like evidence can be consistent and free from discrepancies and yet not worthy of credence. 48. With regard to the standard of proof in election petition the law is settled by the Apex Court in the case of Ch. Razik Ram, Appellant v. Ch. J.S. Chouhan and Ors., Respondents reported in AIR 1975 SC 667 where the Apex Court in paragraph 15 of the judgment held as follows: Before considering as to whether the charges of corrupt practice were established. It is important to remember the standard of proof required in such cases. It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious, penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the Respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt. 49. The Apex Court in the case of V. Narayanashwamy, Appellant v. C.P. Thirunavukkarasu, Respondent reported in AIR 2000 SC 694 in paragraph 24 of the judgment held as follows: A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election Petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the Court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open two equal possible inferences the pleadings of corrupt practices must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegations could have no legal existence and the Court could not take cognisance thereof. Charge of corrupt practice being quasi-criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. 50. The Apex Court in the case of Gopalrao Ravalaji Gulve, Appellant v. Shantaram Punjaji Aher, Respondent reported in AIR 1999 SC 3358 held that the charge of corrupt practice relating to bribery cannot be said to have been proved through such cryptic, vague and unreliable evidence. 51. From the evidence as discussed above, it is cleared that the election Petitioner could not establish about the alleged bribery committed by the Respondent No. 1. The allegation of bribery as stated in paragraph 16 of the election petition must be strictly proved by a cogent and reasonable evidence, the case in hand, the Petitioner has examined three witnesses, who allegedly received money from the Respondent No. 1, but none of the witnesses say that he was paid when all of them were present. There is no corroboration of evidence between the witnesses. Moreover, the statement in paragraph 16 of the election petition had to be seen in the light the evidence of the P.W.s 3, 4, 7 and 9. 52. There is no corroboration of evidence between the witnesses. Moreover, the statement in paragraph 16 of the election petition had to be seen in the light the evidence of the P.W.s 3, 4, 7 and 9. 52. The Apex Court in the case of K.V. Narayana Rao and Ors., Appellants v. P. Purushotham Rao and Ors., Respondents reported in AIR 1993 SC 1698 held as follows: It must be remembered that proof of corrupt practice vitiates the election by itself. It is not necessary to prove in such a case, it has materially affected the election. It is therefore, necessary that such a corrupt practice must be clearly alleged and cogently established. 53. In yet Anr. case of Mercykutty Amtna, Appellant v. Kadavoor Sivadasan and Anr., Respondents reported in (2004) 2 SCC 217 . The Apex Court in paragraph 27 of the judgment held as follows: Allegations of corrupt practices are quasi-criminal charges and the proof that would be required in the support thereof would be as in a criminal charge. The charges of corrupt practices are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in a criminal trial. 54. In the case of Regu Mahesh alias Regu Maheshwar Rao, Appellant v. Rajendra Pratap Bhanj Dev and Anr., Respondents reported in (2004) 1 SCC 46. The Apex Court in paragraph 18 of the judgment held as follows: An election petition is intended to bring into focus any illegality attached to an election. It essentially and basically puts a question mark on the purity of election, casts doubt on the fairness thereof and seeks a declaration that the mandate of the people has been obtained by questionable means. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election Petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun. 55. The onus on the election Petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun. 55. The election Petitioner in the schedule of corrupt practices has alleged about the publication and distribution of the notices by the Respondent No. 1, but did not explain in detail with regard to the distribution of the notices except making a statement that the publication and distribution of notices amount to corrupt practices under the Section 123(4) and (7) of the Representation of the People Act, there is no detailed explanation given in the schedule. So also with regard to the commission of corrupt practices of bribery by the Respondent No. 1 except what he stated in paragraph 16 of the election petition there is no explanation of such bribery in the schedule. Merely making a vague statement about the alleged corrupt practices without explaining as to the manner that the same were carried out will not be sufficient for allowing the election petition. 56. The Apex Court in the case of T.A. Ahamed Kabeer, Appellant v. A.A. Azeez and Ors., Respondents reported in (2003) 5 SCC 650 in paragraph 26 of the judgment the Apex Court held as follows: The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of the ballot must be zealously guarded. On account of a rigid following of these principles the Election Courts are inclined to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law. 57. This is the purpose and object of the election law. 57. The settled legal position in the filed of election jurisprudence were laid down by the Apex Court in the case of Jeet Mohinder Singh, Appellant v. Harminder Singh Jassi, Respondent reported in (1999) 9 SCC 386 one of which is as follows: The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the Court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration. 58. Considering all the facts and circumstances as discussed above, this Court is of the opinion that the election Petitioner has failed to make out the case for setting aside the election of the Respondent No. 1. As held by the Apex Court in the cases referred to hereinabove, the election cannot be set aside on a vague and flimsy ground and by means of scattered evidence here and there as it is done by the election Petitioner in this Case. The trust made by the voters in favour of the Respondent No. 1 cannot be brushed aside by the evidence as let out by the Petitioner in the case. 59. For the aforesaid reasons, the election petition is therefore, dismissed. However, considering the facts and circumstances of the case there will be no order as to costs. Petition dismissed.