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2008 DIGILAW 912 (AP)

Kutagolla Ammaji v. Bommala Vimala

2008-10-22

L.NARASIMHA REDDY

body2008
JUDGMENT : The elections to the Gram Panchayat of Mallur Vilalge, Kadapa District were held on 29.07.2006. The office of Sarpanch was reserved in favour of women. The petitioner and respondents 1 to 3 herein contested for the same. The petitioner was declared elected. The 1st respondent filed Election O.P.No.1 of 2006 before the Election Tribunal-cum-Principal Junior Civil Judge, Rayachoty, challenging the election of the petitioner. It was pleaded that the petitioner incurred disqualification under Section 19(3) of the A.P. Panchayat Raj Act, 1994 (for short ‘the Act’), on account of the fact that she gave birth to a third child, subsequent to 30.05.1995. The petitioner opposed the election petition, denying the allegation against her. She pleaded that the date of birth of her third child, by name Ilyas, is ‘23.03.1995’ and not ‘05.07.1995’, as pleaded by the 1st respondent. The Tribunal allowed the O.P., through its order, dated 21.09.2007 and declared that the 1st respondent stood elected as Sarpanch. The petitioner feels aggrieved by the said order. Sri D.Sudershan Reddy, learned senior counsel appearing for the petitioner, submits that the entire case of the 1st respondent rested on a certificate marked as Ex.P.2 and during the course of evidence, it emerged that it does not accord with the admission register, marked as Ex.P.3. He further submits that having realized their folly, the 1st respondent sought to get marked Exs.P.5 and P.6., which, in turn, are in relation to a different individual, altogether. He also submits that the evidence of P.W.2 would clinch the issue and the trial Court had misread the evidence on record. Sri O.Manohar Reddy, learned counsel for the 1st respondent, who alone contested the writ petition, submits that the records maintained in the school, where the third child of the petitioner was admitted, clearly discloses that the date of birth is 05.07.1995 and thereby, the disqualification under Section 19(3) of the Act is attracted. He contends that the small discrepancy, that existed in the matter, was explained in the re-examination of P.W.2. Learned Government Pleader for Panchayat had also advanced arguments on behalf of respondents 4 and 5. The only ground, urged by the 1st respondent herein, in her challenge to the election of the petitioner is that the latter incurred disqualification under Section 19(3) of the Act. Learned Government Pleader for Panchayat had also advanced arguments on behalf of respondents 4 and 5. The only ground, urged by the 1st respondent herein, in her challenge to the election of the petitioner is that the latter incurred disqualification under Section 19(3) of the Act. Disqualification against an individual is provided for under the said provision, either for contesting to any Office or from continuing therein, if elected; in case, he or she had a third child after one year from the date on which the Act came into force. To be precise, the Act came into force on 30.05.1994 and if an individual gives birth to a third child after 30.05.1995, the disqualification gets attracted. The 1st respondent pleaded that the petitioner gave birth to her third son, by name Ilyas, on 05.07.1995. The petitioner, on the other hand, pleaded that the date of birth of her third child is 23.03.1995. Therefore, the only controversy before the Tribunal was as to the exact date of birth of the third child of the petitioner. On behalf of the 1st respondent, P.Ws.1 to 3 were examined and Exs.P.1 to P.6 were marked. On behalf of the petitioner, R.Ws.1 to 3 were examined and Exs.R.1 to R.6 were marked. The 1st respondent, as P.W.1, stated in her affidavit filed in lieu of chief-examination that she raised an objection at the time of scrutiny of nominations, by filing a representation, marked as Ex.P.1, to the nomination of the petitioner. She further stated that the Head Mistress of the Mandal Parishad School, Malluru Village, furnished a certificate, marked as Ex.P.2, and according to it, the date of birth of the child, by name Ilyas is 05.07.1995. No other documents were marked through her. Several suggestions were made to the witness to the effect that Ex.P.2 does not represent the date of birth of the child and the document itself is defective in several respects. P.W.2 is the Head Mistress of the School, who is said to have issued Ex.P.2. In her chief-examination, she stated that she issued Ex.P.2 on the basis of Ex.P.3, the admission register. It is also stated that the relevant entry in Ex.P.3, in relation to the third child of the petitioner, is at serial No.1795. The entry was marked as Ex.P.4. In her chief-examination, she stated that she issued Ex.P.2 on the basis of Ex.P.3, the admission register. It is also stated that the relevant entry in Ex.P.3, in relation to the third child of the petitioner, is at serial No.1795. The entry was marked as Ex.P.4. She further stated that in Ex.P.4, the name of the child is mentioned as ‘Imran Basha’ and father name of the child as ‘Anwar Basha’. She reiterated that Ex.P.2 reflects the entry in Ex.P.4. In the cross examination of this witness, it was elicited that Ex.P.2 does not accord with the entry in Ex.P.3, marked as Ex.P.4. Obviously, faced with this situation, the 1st respondent re-examined P.W.2 and during this, another register was marked as Ex.P.5. The witness deposed in the re-examination that Ex.P.2 was issued on the basis of an entry in Ex.P.5, marked as Ex.P.6. In the further cross examination of the witness, it was elicited that there is no declaration, form or any other document, in relation to the student, by name ‘Ilyas Basha’. P.W.3 is said to be a Retired Teacher, who worked as Head Master of the same school for about 5 years. In the chief-examination itself, he revealed his ignorance, as to the number of children the petitioner had, though he is said to have resided in front of the house of the petitioner. The evidence of this witness does not have any bearing, on the fact in issue. A close scrutiny of the examination-in-chief of P.Ws.1 and 2, would disclose that both of them treated Ex.P.2 as the certificate in relation to the third child of the petitioner. P.W.2, who issued Ex.P.2, related the same to an entry at serial No.1795, marked as Ex.P.4, in the admission register, marked as Ex.P.3. Without the assistance of any further oral and documentary evidence, a comparison of Ex.P.2 with Ex.P.4 demonstrates that they do not relate to each other. In her chief- examination, P.W.2 stated as under: “In Ex.P.4 it is mentioned as Imran Basha Kutagolla, father’s name is mentioned as Anwar Basha. Basing on Ex.P.4 I issued Ex.P.2.” In Ex.P.2, the name of the student is mentioned as Ilyas Basha, son of Anwar. In fact, there did not exist any necessity for the petitioner herein to cross-examine P.W.2. However, the witness was cross-examined. Basing on Ex.P.4 I issued Ex.P.2.” In Ex.P.2, the name of the student is mentioned as Ilyas Basha, son of Anwar. In fact, there did not exist any necessity for the petitioner herein to cross-examine P.W.2. However, the witness was cross-examined. During the course of cross-examination, the petitioner had only made P.W.2, to be more clear, about what was already said in the chief-examination. It was only in the re-examination of P.W.2, that another admission register, marked as Ex.P.5, was brought on record. An attempt was made to relate Ex.P.2 to an entry in Ex.P.5, marked as Ex.P.6. This exercise is, in fact, opposed to the very purport of Sections 137 and 138 of the Evidence Act. Re-examination is confined, to the exercise of seeking clarification, if what is stated in the cross-examination is either equivocal or capable of being interpreted in a different manner. If any new information is to be furnished in the re-examination, it should be only through specific permission of the Court. If the petitioner was able to make out her point vis-à-vis the validity of Ex.P.2, without the necessity of cross-examining P.W.2, the re-examination of the witness equally becomes irrelevant. Even otherwise, the process of re-examination can never be resorted to, to explain or contradict, what was stated by the witness in his or her chief-examination. The purport of re-examination must be confined or related to what is stated in the cross-examination. Therefore, the information elicited through P.W.2 in the re-examination does not explain the internal contradiction, that emerged in the chief-examination of the witness, as regards Ex.P.2. It is natural that the burden to prove the fact pleaded by the 1st respondent, squarely rested upon her. Except oral evidence of P.W.2 and the documentary evidence of Ex.P.2, she did not have any other material, to prove that the petitioner gave birth to a third child, after 30.05.1995. Ex.P.2 suffered from more infirmities, than one. It has been demonstrated that the entry in Ex.P.3, marked as Ex.P.4, was in relation to the first child of the petitioner and the entry in Ex.P.5, marked as Ex.P.3, was in relation to the son of one ‘Mr. Anwar’ and not ‘Anwar Basha’. It was not clear whether the entry was made on the strength of any form or information from the parents. Anwar’ and not ‘Anwar Basha’. It was not clear whether the entry was made on the strength of any form or information from the parents. It is not as if the petitioner intended to rest her case upon the weakness of the evidence adduced by the 1st respondent. Independently, she filed several documents to prove that the date of birth of her third child is 23.03.1995. P.W.2 herself gave a letter, dated 01.09.2006, marked as Ex.R.1, to the effect that Ex.P.2 was issued to one Mr. Akula Mehaboob Peer and that there was no admission form or signature of the parents. The school, in which the third child of the petitioner, by name Iliyas, is studying, had issued a date of birth certificate, marked as Ex.R.2. The relevant entry in the admission register maintained by the school was also marked as Ex.R.5. The 1st respondent was not able to prove these documents as untrustworthy. These documents are marked through R.W.2, the Correspondent of the institution. Nothing was suggested to this witness, to doubt the correctness of the documents marked through him. The discussion undertaken above demonstrates that the Tribunal did not follow the correct principles of appreciation of evidence. It proceeded as though the plea raised by the 1st respondent was proved. It placed reliance upon Exs.P.5 and P.6, to sustain the validity of Ex.P.2. It has already been pointed out that such a course was totally impermissible in law. The writ petition is accordingly allowed and the impugned order, dated 21.09.2007, is set aside. There shall be no order as to costs.