Indian National Congress Party (INC) v. People’s Party of Arunachal Pradesh (PPA)

Judgment

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 335 346 365 Name of Polling Stations Zara Keba Niobia Karsang 62 Tedung Pipsonrang HQ Richik Raha Korapu Lukbia Total 361 7 1 0 87 5 73 357 234 70 118 943 5230 2 42 146 110 151 1991 2546 Postal ballot 64 Grand Total 33 548 5261 Grand Total (1 + II)=INC-2548 PPA-5261 =7809

Heard Mr. B.L.Singh, learned counsel for the election petitioner and Mr. M. Pertin, learned counsel for the Respondents.

3. The petitioner alleges that on the day of poll the workers of th e PPA candidate (respondent No.1), with his consent committed election offence b y capturing booths in 8 polling stations under the Tali Circle. In 7-Roing Poll ing Station under Tali Circle no election was held on 13.10.2009 as the polling team with Electronic Voting Machines (EVM in short) was kidnapped by the PPA wo rkers headed by Sri Gichik Kiogi Thaji on the night of 12.10.2009.Sri Gianiu Tal lo INC Polling agent of Roing polling station and Sri Tami Tayak, President of N SUI, Kurung Kumey District reported the incident on 13.10.2009 addressing letter s to the Executive Magistrate, Tali requesting him to take necessary action. On the next day i.e. 14.10.2009 Sri Rigam Santana, General Secretary of Tali Block Congress Committee, Sri Tami Tayak, President NSUI Kurung Kumey, Shri Rigio Tash ok, Shri Yukar Tara, President NSUI, Tali, Sri Tagio Yashok, ZPM, Tali jointly s ubmitted a representation to the Assistant Returning Officer (ARO in short) abou t the said incident requesting him for repoll of 20-Tali (ST) Assembly Constitue ncy. Sri Gichik Tago polling agent of 7-Roing Polling Station and Sri Gichik Tac hu jointly submitted another representation to the said ARO on 13.10.2009 demand ing repoll etc. Repoll was demanded as the genuine voters could not exercise th At 2-Ruhi Polling Station, as alleged in eir franchise due to booth capturing. the election petition, some miscreants including Sri Markio Tado, PPA candidate himself indulged in booth capturing and single-handed casting of votes as a res ult of which the INC candidate (petitioner) was shown to have secured only one v ote as against 1196 votes secured by the PPA candidate. The common voters were t hreatened to their lives by the miscreants of PPA candidate and not allowed to c ast their votes. This incident was reported by the INC polling agent Sri Tamuk T alu of Tamuk Village to the ARO of 20-Tali (ST) constituency on 14.10.2009 de manding repoll. It is alleged that similar booth capturing took place at 5-Guchi polling station. The INC polling agent Sri Dangur Tadek reported the matter to the said ARO on 13.10.2009 demanding repoll and necessary action. The polling ag ents of 2-Ruhi and 7-Roing polling station jointly reported the incident of boot h capturing to the said ARO in the aforesaid polling stations by addressing a re presentation dated 15.10.09. The petitioner himself also reported the said incid ent of booth capturing at the said polling station through fax message dated 15. 10.2009 addressed to the Returning Officer (RO in short) of 20-Tali (ST) Assembl y constituency, Koloriang with request for repoll.

4. Besides the above three polling stations, similar nature of boot h capturing and criminal intimidation took place in 5 (Five) other poling statio ns viz (1) 10-Yarda (2) 8-Dotte (3) 6-Giba (4) 4- Tungmar (5) 15-Richik polling stations. The incident of booth capturing took place in all the 8 polling statio ns under Tali Circle by the workers of PPA candidate Sri Markio Tado with his co nsent. It is alleged that the presiding officer of the said 8 polling stations, under duress, submitted their poll diaries to the R.O. without reflecting the ac tual incident that had taken place in the respective polling stations. A statem ent showing the name of 8 polling stations and the person under whose leadership the above noted booth capturing took place depriving the genuine voters of thei r right of franchise through intimidation, has been furnished. For convenience a nd ready reference the same is quoted from the petition hereunder: Sl. No Name and number of polling stations who has cast whole Votes in place of other voters te Cast in favour of INC 1. 378 2. Name of voters /persons Total vo Total Voters Total vote Cast in favour of PPA by booth captur

1.Shri Yora Palang, S/o Lt. Yara Tana, village -Lodokore 2.Shri Thaji Gichik Kiogi, S/o Lt. Gichik Talla, village - Sadok 3.Shri Yora Ta Shri Yarda Tayo, s/o Sri Yarda Kiokam, Village-Yarda Remark 10-Yarda 72 7-Roing 300 ha village -Lodokore 3. 02-Ruhi 1. Shri Markio Tado S/o Lt. Markio Tagi Village-Ruhi 2.Shri Mui Aman S/o Lt. Mui Tai A/T (SSA),Govt.ME. School,Village-Ruhi 3.Shri Mui Tai S/o L t. Mui Tada S/o Lt. Mui Tai A/T (SSA),Govt.M.E. School,Village-Ruhi 4.Shri Tagiu (Tagio) Taniang S/o Lt. Tagiu Take Vilalge-Sartam 1210 697 692 3 1 8-Dotte Shri Tagru Tasha (Kasha) S/o Shri Tagru Tayar A/T (SSA),Govt.M.E 1196

4. . School, Dotte Village-Dotte 5. Shri Tagru Tachuk (Dochuk) S/o Lt. Tagru Tatam Vill- Niomi 373 6. 6-Giba 206 204 1

1.Shri Tagru Tarang (Niglap) S/o Lt. Tagru Tade, Vill- Nyado. 2. 431 40 5-Guchi 1.Sri Dakme Tarak S/o Lt. Dakme Tadik Vill-Guchi 2.Shri Dangu Ta ro (Tara) S/o Lt. Dangu Tajum Block Dev. Officer, Hunli, Lower Dibang Valley Di strict, Vill- Guchi. 315 Shri Tatung (Marbam) Tago S/o Shri Tatuna, President-All

7. Kurung Kumey,District-Student, Union (AKKSU) Village-Tungmar. 410 53 4-Tungmar 289 12 15-Richik 347 8. 1. Shri Songio Taba S/o Shri Songio Tagun Village-Songio 2.Shri Songio Taw S/o Lt. Songio Tanang Village-Songio 3.Shri Rigio Tapa S/o Lt . Riogio Tada Village-Gyapin 4.Shri Rigio Takung S/o Lt. Rigio Takia Village-Gya 560 42 Total 357 4202 224 3763

5. rs : (i) In the election petition the petitioner made the following praye Call for the records of registration of voters, counter foils ( Form 17-A of those 8 polling stations described in the statements made in paragraph 7, EVMs of those 8 polling stations, Records relating to 20-Tali (ST) Assembly Constituency Declare as illegal those votes cast by booth capturing in (ii) (iii) (iv) 8 polling stations in favour of returned candidate Markio Tado, (v) Declare void the order dated 22.10.09 whereby returned candidate Sri Markio Tado, was declared duly elected to fill 20-Tali (S T) Assembly Constituency. (vi) Declare Shri Takam Sorang, the petitioner as elected candidate for the said 20-Tali(ST) Assembly Constituency.

6. A joint written statement has been filed by the respondents on 2 5.2.2010 denying all the allegations brought by the election petitioner in the e lection petition. It has been pleaded that the election was conducted fairly and peacefully and there was no booth capturing, rigging etc. The allegations are b aseless and false inasmuch as the election petitioner manufactured, fabricated a nd forged documents after the election result was declared. The respondent No.1 was declared elected from 20-Tali (ST) Assembly Constituency by a margin of 2713 votes and there was no irregularity and illegality in the election of responden t No.1. The respondents have also questioned the maintainability of the election petition both on question of facts as well as on question of law inasmuch as th ere is no merit at all and the entire contents of the petition are bundle of fal se allegations based on fabricated documents prepared in support of the election petitioner. On consideration of pleadings of the parties, the following issu

7. es were framed: Whether the election petition is maintainable in its present form? (1) (2) Whether the polling team of 7-Roing polling station along with EVM were kidnapped by the PPA workers headed by one Sri Gichik Kiogi Taji in the night of 12.10.2009 and as a result of which, whether practically no election was held i n the said polling station ? (3) Whether any election offence of booth capturing was committed at 2-Ruhi and 5-Guchi polling stations on the date of polling on 13.10.2009 by Sri Markio Tado and his party workers by casting the votes single-handedly ? (4) Whether any offence of booth capturing and criminal intimidation was com mitted at 5-(five) other polling stations namely -(1) 15-Richik (ii) 10- Yarda ( iii) 8-Dote (iv) 6-Giba and (v) 4-Tungmar, by the persons named in column -3 of the statement against each polling station as mentioned in paragraph -7 of the Election petition ? (5) Whether Annexures 1 to 9 to the election petition are forged, fabricated , manufactured and afterthought for the purpose of filing the election petition? (6) Whether election of returned candidate Sri Markio Tado is liable to be d eclared void u/s 100 of Representation of People Act, 1951? (7) Whether the petitioner received majority of valid vote for the vote obta ined by the returned candidate by corrupt practices and is entitled to declarati on that he has been duly elected under Section 101 of the Representation of Peop le Act,1951 ?

8. The election petitioner filed the list of documents and witnesse s to prove his case. The returned candidate, the respondent No.1 also filed his list of documents and witnesses .The election petitioner filed evidence-in-affid avit on 25.5.2012. Similarly the respondent No.1-returned candidate also filed h is evidence-in- affidavit.

9. Before entering into the discussion on the issues framed, it is felt necessary to take note of some Misc. Applications and results thereof. (i) M.C.(EP)05(AP)/2010 was filed on 29.6.2010 by the election petitioner for ca lling records of register of voters, counter foils (Form 17-A) of 38 Polling Sta tions of 13(ST) Itanagar Legislative Constituency (LAC) from the Returning Offic er concerned. The returned candidate opposed the said application by filing obje ction petition on 19.8.2010. The said Misc. Application was allowed by this cour t vide judgment and order dated 14.9.2010. Against the said Judgment and order o f this court, the returned candidate filed a Civil Appeal No.1539/12 before the Hon’ble Supreme Court. The said civil appeal was allowed vide judgment and order dated 2.2.2012 dismissing the aforesaid M.C(EP)No.05(AP)/10 under Section 83(1) of the R.P.Act as reported in (2012)3 SCC 236. Agaisnt the said judgment and or der dated 14.9.2010 the respondent filed SLP (C) No.34368/10. The Hon’ble Suprem e Court by order dated 12.11.10 stayed further proceeding of the election petiti on by order dated 18.11.10 . It was subsequently dismissed as withdrawn vide ord er dated 18.10.2011. The respondent-returned c andidate also filed another SLP(C)No.30410/10 urging for additional grounds whic h was also dismissed on the same day i.e. 18.10.11 as infructuous. (ii) The election petitioner filed M.C(EP)06(AP)/2010 on 29.6.2010 for calling h and writing expert to be present at the time of examination of the respondent’s witnesses before this court. The respondent-returned candidate objected the said prayer by filing affidavit-in-opposition on 19.8.2010. By order dated 19.3.2012 , this court directed to send the Register of Voters (Form 17-A), which were als o procured from the District Election Authority under sealed cover and kept in s afe custody of the Registry of the Bench and sent to the Director of Regiional F orensic Science Laboratory (FSL), Police Training Centre, Bandardewa, AP, reques ting him to conduct scientific examination and verification of signatures /finge r prints appearing on Form 17A and to ascertain as to whether the thumb impress ions and signatures contained in Form 17-A were put single handedly and fraudule ntly by few persons as a measure of impersonation of the genuine voters and aft er such scientific examination/verification to submit report to the Registry of the court in sealed cover within 3rd May,2012. Against the said order of this co urt the respondent-returned candidate filed SLP (C) No.14619/2012. Th e respondent-returned candidate on 9.5.2012 sought permission to withdraw the SL P(C) No.12707/12 with liberty to agitate the question as and when election petit ion is heard on merit and to put in service the order passed by the Hon’ble Supr eme Court between the same parties on 2.2.2012. Accordingly the said SLP(C) was dismissed as withdrawn on the same date i.e.9.5.2012. The other SLP(C)No.14619 w as also dismissed in view of the observations made in paragraph 17 of the impug ned order passed by this court in judgment and order dated 20.4.12 in MC(EP)2/(A P)/12. In the aforesaid paragraph 17 as referred to it was observed by this cour t that (cid:28) moreover, an issue has been framed on the maintainability of the electi on petition in its present form leaving further scope for the parties to argue o n the issue after closure of evidence (cid:29). (iii) The respondent/returned candidate on 19.8.2010 filed M.C.(EP) No.07(AP)of 2010 under order 6 Rule 16 and Order 7 Rule 11(a) CPC, 1908 for striking out th e pleadings as unnecessary, scandalous, frivolous, vexatious and abuse of proces s of court with prayer for dismissal of the election petition. Upon hearing the learned counsel for the parties, the aforesaid Misc.Case was dismissed vide jud gment and order dated 14.9.2010. Against the said judgment and order the respond ent-returned candidate filed SLP(C)No.34368/10 under Article 136 of the Constitu tion of India but it was also dismissed by the Hon’ble Supreme Court vide order dated 18.10.2011. As a result there is no striking out of any pleading of the el ection petition. (iv) The respondent-returned candidate again on 18.4.12 filed MC (EP)/02(AP) und er Order 7 Rule 11(a) and Order 6 Rule 16 CPC, 1908 questioning the maintainabil ity of additional affidavit dated 27.1.11 filed by the election petitioner in Fo rm 25 as prescribed under Rule 94-A of the Conduct of Election Rules, 1961 for bringing the same as part of the election petition without leave of the court in violation of time limit prescribed under Section 81 of the Representation of Pe ople Act, 1951( hereinafter referred to as R.P.Act only) with prayer for dismiss al of the elecition petition. The said Misc. Case, after hearing the parties, wa s dismissed by this court vide judgment and order dated 20.4.12. The additional affidavit filed by the election petitioner was accepted. Agaisnt this order the respondent-returned candidate filed SlP(C)No.12707/12 which, on the prayer made by the applicant/returned candidate, was dismissed on withdrawal, as stated earl ier, on 9.5.2012.

10. ISSUE NO.1: Whether the instant election petition is maintainable in its present form ? In regard to this issue, Mr. M. Pertin, learned counsel for the r espondent returned candidate, first of all, submits that there is no cause of ac tion. As per the provisions under Section 49 of the Conduct of Elections Rules, 1961, there is a provision for challenging the identity of a person, who comes t o cast vote at a particular polling station, by depositing Rs.2/- only in cash w ith the Presiding Officer for its such challenge. At no polling station, no suc h challenge was made by the petitioner or his election agent or polling agent or any supporter/worker. Therefore, the allegation of casting votes by impersonati on or misrepresentation is baseless and no triable cause of action arose. No co mplaint was made by any voter nor any Presiding Officer reported about such inci dent at any polling station. Secondly, the petitioner is trying to prove his case by examinin g his party workers and supporters without examining any independent witness. T he party workers and supporters are interested and tutored witnesses and the all egations cannot be proved by examining such interested witnesses. As against the se allegations, the official records reveal that the election in question was co nducted smoothly and peacefully in all the polling stations. Thirdly, the respondent returned candidate won the election by a m argin of 2713 votes and there is no evidence to support the allegation of vote c apturing and rigging in any polling station. In the election petition, the alle gation has been made that the genuine voters were allowed to cast their votes, b ut the petitioner has not mentioned the names of voters, total number of such vo ters and as to whether the votes secured allegedly through illegal means materia lly affected the result of the election of the returned candidate. For want of s uch material particulars, the election petition is not maintainable and it is li able to be dismissed. Fourthly, the petitioner originally made complaint before the Retur ning Officer in respect of the election in 2-Ruhi and 7-Roing polling stations o nly. But in his election petition, he has incorporated 6 other polling stations . The petitioner altogether received 1873 votes in 2-Ruhi and 7-Roing polling s tations and as such, it cannot materially affect the election of the returned ca ndidate as he won the election by a margin of 2713 votes. This finding has been given by the Apex Court in judgment and order dated 2.2.2012 rendered in Civil Appeal No.1539/2012, as reported in (2012) 3 SCC 236 (Markio Tado v. Takam Soran g & Ors.). Fifthly, the election petition contains 10 annexures. They are th e integral parts of the election petition, but the petitioner relied on the Anne xure-1, 2, 3, 4, 9 & 10 only which have been marked as Exhibits No. P/9, P/10, P/13, P/14, P/18 and P/19 respectively. Regarding Annexures-5, 6, 7 and 8, the election petitioner stated in his evidence that those annexures do not bear the signatures of the persons concerned. This being the position, all the annexures to the election petition stand non-existent and so, (cid:28)half of the election petit ion becomes false, incomplete, ineffective (cid:29) and on this score, the election peti tion can be dismissed as not being maintainable. Sixthly, under Section 83 (1) of the R.P. Act, an election petition alleging corrupt practice, must be accompanied by an affidavit in prescribed fo rm in support of the allegations of such corrupt practice and particulars. The s chedule and annexures to the election petition should also be signed by the peti tioner and verified in the manner as the petition. The election petition in the present case was not accompanied by an affidavit duly sworn in Form No.25 prescr ibed under Rule 94(A) of the Conduct of Election Rules, 1961 (hereinafter referr ed to as (cid:28)the Election Rules (cid:29) only). Since the affidavit is not in prescribed F orm No.25 the election petition is liable to be dismissed at the threshold. The petitioner tried to remove this fatal defect by filing additional affidavit on 2 5.7.2011, that too, after expiry of time limit, which is not permissible under t he law. The said defect in filing the election petition without affidavit in pro per form and in prescribed manner is not curable and the election petition must be dismissed on this score itself. Mr. Pertin, learned counsel, in this regard, has relied upon - 1) 2) 3) 4) 5) 6) P.A. Mohammad Riyas v. M.K. Raghavan & Ors, (2012) 5 SCC 511; Quamarul Islam v. S.K. Kanta & Ors, AIR 1994 SC 1733; R.P. Moidutty v. P.T. Kunjaju Mohammad & Ors, (2000) 1 SCC 481; V. Narayan Swamy v. C.P. Thirunavukkarasa, (2000) 2 SCC 294; Ravinder Singh v. Janmeja Singh & Ors, (2000) 8 SCC 191; F.A. Sapa & Ors. V. Janmeja Singh & Ors, (1991) 3 SCC 375.

11. Citing the case of Azhar Hussain v. Rajib Gandhi, reported in 19 86 (Supp) SCC 315 and Samar Singh v. Kedar Nath & Ors, 1987 (Supp) SCC 663, it i s submitted by Mr. Pertin that the election petition can be dismissed even after framing of issues, if it does not disclose cause of action. He also submits tha t the election petition can be dismissed summarily at the threshold in exercise of powers under Order 6 Rule 16 and Order 7 Rule 11 of the Civil Procedure Code read with Sections 86 and 87 of the R.P. Act, if the petitioner fails to furnish material facts and particulars in violation of Section 83 of the R.P. Act, whic h are essential for disclosing of cause of action relating to charge of corrupt practice.

12. Mr. B.L. Singh, learned counsel for the petitioner, countering the above arguments, submits that the question of maintainability of the electi on petition cannot be raised at this belated stage inasmuch as the respondent re turned candidate has already filed written statement and issues have been fram ed and even examination of recording of the petitioner’s witnesses has been com pleted/closed. He submits that the election petition has been filed under Sectio n 81 of the R.P. Act with statements of material facts and material particulars, on which the petitioner puts reliance as required under Section 83 of the R.P. Act. According to him, those material facts and material particulars have suffic iently disclosed the cause of action within the meaning of Order 6 Rule 2 CPC. An election petition like the present one, with all necessary material facts and material particulars, is not liable to be dismissed at the threshold as insiste d upon by the respondents. Further, he submits that at the time of examination o f witnesses, the petitioner has already proved the documents filed by him and at this stage, therefore, maintainability of the election petition cannot be quest ioned.

13. As regards the annexures to the election petition, he submit s that it is for the petitioner, out of all annexures or documents furnished, on which he may/should rely upon and get them proved and marked at the time of tri al or recording of evidence. There is no law that the petitioner must rely on an d get all the annexures/documents proved and exhibited and in failing to do so, the petition should be dismissed as not maintainable. In regard to affidavit, it is submitted that the election pe 14. tition is accompanied by an affidavit, which is substantially as per Form No.25, although not exactly in Form No.25, and hence the petitioner had sworn an addit ional affidavit on 27.1.2011 to form it as a part of the election petition. The said additional affidavit was filed as permitted by the Hon’ble Supreme Court vi de order dated 4.2.2011 passed in S.L.P.(C) No.34368/2010. The said SLP (C) wa s filed by the respondent returned candidate, which was dismissed on withdrawal on 18.10.2011 on the request made in that behalf by his counsel. The question of maintainability of the election petition, as argued by Mr. Singh, learned couns el, has attained its finality as soon as the Hon’ble Supreme Court passed the af oresaid order dated 18.10.2011. The respondent-returned candidate filed yet anot her MC (EP) No.02(AP)/2012 under Order 7 Rule 11 (i) and Order 6 Rule 16 of the CPC questioning the maintainability of the aforesaid additional affidavit dated 27.1.2011 filed by the petitioner. The said Misc. Case was dismissed by this Cou rt vide order dated 20.1.2012 and the said additional affidavit has been treated as a part of the election petition. The above rival submissions of the learned counsel for the pa 15. rties, so much so, the issues under consideration, are not new to this Court as the said issues were considered while disposing of the MC (EP) No.07(AP)/2010, w hich was filed by the respondent returned candidate under Order 6 Rule 16 and Or der 7 Rule 11 (A) CPC for striking out the pleadings as unnecessary, scandalous , fibulas, vexatious etc. The said Misc. Case was dismissed vide judgment and or der dated 14.9.2010. However, I am bound to consider the issue of maintainabil ity raised by the respondent returned candidate.

16. There is no dispute that under Section 83 of the R.P. Act, an election petition must contain a concise statement of material facts and materia l particulars of corrupt practice including as full statement as possible of the names of the parties alleged to have committed such corrupt practice and the da te and place of commission of such corrupt practice. The present election petit ion contains the allegation of booth capturing by the respondent returned candid ate, his agents and other persons within the meaning of Section 123(8) of the R. P. Act. The alleged booth capturing, as stated in the election petition, took p lace at 7-Roing, 2-Ruhi and 5-Guchi polling stations. The material facts and mat erial particulars have been specifically furnished in paragraphs 4, 5 and 6 of t he election petition. The names of the persons responsible for alleged booth ca pturing in 8 polling stations have been furnished in the statement attached to p aragraph 7 of the election petition. In paragraph 8 of the election petition, t he petitioner has explained how he would have secured more votes materially affe cting the election of the returned candidate and thereby how the petitioner woul d have been declared elected. It is altogether a different thing how the electio n petitioner would prove his case of corrupt practice by way of booth capturing by the petitioner and his agents, workers, supporters etc. Whether he has been a ble to prove the said allegation of booth capturing could be examined at the la ter stage when the issues involved/connected therewith are discussed. But so far furnishing of material facts and particulars are concerned, the petitioner has complied with the provisions of law and I had the occasion to discuss and give m y findings in this regard in paragraphs 8, 9, 10, 11, 12 and 14 of the judgment As regards 7-Roing polling station, the following averments have been ma and order dated 14.9.2010 rendered in Misc. Case (EP) No.07(AP)/2010, which are reproduced hereunder :- (cid:28)8. de in para 4 of the election petition- (cid:28) & Especially in Roing polling station no election was held on 13th October, 200 9 as the polling team with Ballot Boxes (EVM) had been kidnapped by the PPA work ers headed by Sri Gichik Kiogi Thaji on 12th October night. Shri Gianiu Tallo IN C Polling agent Roing and Shri Tami Tayak President NSUI, Kurung Kumey District reported the incident on 13th October, 2009 in separate letters to the Executive Magistrate, Tali for necessary action. On the next day on 14th October, 2009 S hri Rigam Santana, General Secretary Block Congress Committee Tali, Shri Tami Ta yak President NSUI, Tali Shri Tagio Yashok, ZPM, Tali jointly submitted a repres entation about the same incident with request for repoll to the Assistant Return ing Officer, 20-Tali(ST)Assembly Constituency. Shri Gichik Tago polling Agent, 7 -Roing Polling Station and Shri Gichik Tachu jointly submitted another represent ation on 13th October, 2009 to the Assistant Returning Officer, 20-Tali(ST)Ass embly Constituency for re-poll etc. But since no action has been taken by the co ncerned authority the genuine voters failed to exercise their constitutional rig ht of adult franchise. (cid:29) In this regard, the material fact is that there was a booth capturing at 7-Roin g Polling Station on 13th October, 2009 by way of kidnapping the polling staff/t eam with ballot boxes ( EVM). The necessary material particulars are that the bo oth capturing and kidnapping of polling team and EVM was done under the leadersh ip of PPA workers head by Sri Gichik Kiogi Thaji on 12th October night.

9. made in para 5 of the election petition as under: As regard booth capturing at 2-Ruhi polling station averments have been (cid:28) That similarly at 2-Ruhi polling station some miscreants including Shr i Markio Tado P.P.A. Candidate himself involved in booth capturing and cast vote s by single hand showing vote only 1 for INC and 1196 for PPA. The common voters were not allowed to exercise their voting rights as they have been threatened t o their lives by the miscreants of opposite party No.5. The matter was reported by INC Polling Agent, Shri Tamuk Talu of Tamuk village to the Assistant Returni ng Officer 20-Tali(ST)A.C.Arunachal Pradesh on 14.10.2009 for repoll. Such election offence of booth capturing was also happened at 5-Guchi po lling station. Polling Agent Sri Dangur Tadek reported the matter on 13.10.09 to the Assistant Returning Officer 20-Tali (ST) Assembly Constituency, Arunachal Pradesh for re-poll and necessary action. (cid:29)

10. The allegation has been brought clearly against the returned candidate of the PPA, Shri Markio Tado himself that there was casting of votes s ingle-handedly in the said polling where only one vote was cast in favour of the INC. This is a material fact. Of course, no other name of agents or workers of PPA candidate have been disclosed. The applicant-returned candidate has been inf ormed sufficiently about the charge he has to meet. Regarding booth capturing at 5-Guchi polling station, no such material particulars has been furnished. The a llegation of booth capturing at 5-Guchi polling station it appears to be lacking in material facts and particulars but the same is to be read with annexure-5, a complaint dated 13.10.2009 made by the polling agent of the election petitioner with the Assistant Returning Officer, 20-Tali (ST) Assembly Constituency whereby stringent action w as demanded against those persons involved in booth capturing. In the said compl aint fresh polling was also demanded. Similar type of allegation of booth capturing has been made by t 11. he election petitioner in respect of five other polling stations namely (1) 10-Y arda, (2) 8-Dotte, (3) 6 -Giba , (4) 4-Tungmar and (5) 15- Richik by different w orkers of the returned candidate with his consent and pre-plan. The names and pa rticulars of persons who indulge in casting votes in the aforesaid eight (8) pol ling stations where booth capturing took place, have been furnished in a stateme nt as part of para 5 of the election petition. In the ele ction petition, it has been specifically stated that c omplaints were filed with the Assistant Returning Officer and the Returning Officer concerned about the aforesaid incident of booth capturing in the above polling stations a nd demanded repoll but no action was taken by the authorities concerned. The ele ction petitioner also made a point that due to booth capturing in the polling st ations mentioned above, the petitioner lost the election. In my considered view, the election petitioner has been able to furnish sufficient material facts and particular sufficient to inform the returned candidates to meet the charges brou ght against him in the election petition and to disapprove the same by adducing evidence in his support. No doubt, as per provisions under Order VI Rule 16, Court may a 12. t any stage of the proceedings order to strike out any matter in any pleading (a ) which may be unnecessary, scandalous, frivolous or vexatious or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit or (c) which is otherwise an abuse of the process of the court. Law has been settled by the Ape x Court in Sathi Vijay Kumar -Vs-Total Singh & Others, reported in (2006) 13 SCC 353 that the underlined object of Order VI Rule 16 of the Code of Civil Proced ure is to ensure that every party to a suit should present his pleadings in an i ntelligible form without causing embarrassment to his adversary. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the court would not order striking out of pleadings but a note of warni ng has also been given that the power to strike out pleadings is extra ordinary in nature and must be exercised by the courts sparingly and with extreme care, c aution and circumspection. The Apex Court in Ashwani Kumar Sharma (supra) held t hat the election petition is required to contain a concise statement of material facts equivalent to a cause of action and it is not required to set out in the petition the entire evidence in support of materials facts. In the present case, the opposite party/ election petitioner has set forth in his election petition the required concise material facts namely booth capturing at least 8(eight) pol ling stations with necessary material particulars, the applicant-returned candid ate had to meet. It is found that the election petitioner has complied with the requirement of law in regard to preparation of pleadings without offending the r ules of pleadings. The averments made in the election petition with the material facts and particulars have raised arguable issues particularly indulging in cor rupt practice by the returned candidate and his agents and workers by way of boo th capturing in the above 8(eight) polling stations. It is an issue concerning t he election petitioner in particular and people of the constituency in general a ffecting free and fair conduct of election in a democratic society which must be taken seriously, because the MLAs are law makers of the State and they must pro ve themselves free from corrupt practices in the election.

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14. I have gone through the decision rendered by the Calcutta High C ourt in Rakhaldas (supra) in regard to tendering and exhibiting documents before the trial court. As per the said judgment, any question regarding admissibility of a particular document in evidence for the purpose of proceeding must be dec ided at the time when the document is tendered and before it is actually marked as an exhibit. In the present case, the applicant/ returned candidate admittedly did not raise any objection to tendering any document either in original or pho tocopies and marking/ exhibiting them. The said documents were exhibited /proved through witnesses. When a document is exhibited the same is to be taken into co nsideration in deciding the related questions in respect of a particular case. T he applicant, at this stage of the proceeding, is debarred from questioning the admissibility of the evidence tendered by the witnesses by exhibiting the docume nt. However, the said documentary exhibit can be impeached by the applicant-elec ted candidate by adducing evidence through his witnesses. The said stage is yet to come. He may take the chance by examining his witnesses. & & & & & & &. (cid:29) There is no denial of the fact that the petitioner failed to fur 16.A. nish an affidavit in Form No.25 to the election petition, but he claimed that it was substantially as per the prescribed form i.e. Form No.25. It is also an ad mitted position that the petitioner, having come to know that the affidavit acco mpanying the election petition, was not in the prescribed form, he filed an add itional affidavit on 27.1.2011 as per liberty granted by the Apex Court vide ord er dated 4.2.2011 passed in S.L.P.(C) No.S.34368/2010. A copy of the said order has been placed by the learned counsel for the petitioner, which is quoted here under :- (cid:28)04.02.2011 On the request of the learned counsel for the caveator, the matter is ad journed by a week. It will be open to the respondent to file additional document s including copy of the affidavit referred to in the proviso to Section 83(1) of the Representation of People Act, 1951. (cid:29) The additional affidavit filed by the petitioner on 27.1.2011 is quoted hereunder for ready reference :- (cid:28) I Shri Takam Sorang, S/o Shri Sorang Takio, resident of Village- Zara, P.O- Ta li, Kurung Kumey District, Arunachal Pradesh, and permanently resident at Damsit e, Naharalagun, Papum Pare District, Arunachal Pradesh aged about 37 years, do h ereby solemnly affirm and say as follows: That I am the petitioner in the above mentioned Election Petition callin 1. g in question the election of Shri Markio Tado (Respondent No.1(5) in the said p etition on the ground of corrupt practice under Section 123 (8) of the Represent ation of the Peoples’ Act, 1951. The petition was accompanied with the affidavit supporting the statements made in the petition substantively as per Form 25 but not exactly as per format. Hence, I crave leave of this Hon’ble High Court to b ring this additional affidavit to form part of the record of the case. That the statements made in paragraphs 1,2,3,7,8,9,11,12 and 13 of the e 2. lection petition about the commission of corrupt practice of booth capturing, r igging, casting the votes by single handedly and the particulars of such corrupt practice mentioned in the said paragraphs 1,2,3,7,8,9,11,12 and 13 of the same petition and in paragraphs & &..of the schedule annexed thereto are true to my k nowledge.

3. That the statements made in paragraphs 4,5,6 and 10 of the said petition about the commission of corrupt practice of booth capturing, kidnapping of pol ling team with voting machines in 8 polling stations under 20-Tali (ST) Assembly Constituency described in a statement at paragraph 7 of the petition and the pa rticulars of such corrupt practice given in paragraphs 4,5,6 and 10 of the said petition and the contents of the schedule annexed thereto are true to my informa tion.

4. And the rest are prayers for relief before this Hon’ble High Court. Signature of Deponent Sd/ Illegible Solemnly affirmed/sworn by Sri Trakam Sorang, S/o Shri Sorang Takio at Naharlagu n Court premises on this 27th day of January,2011 (cid:29)

17. The respondent returned candidate challenged the maintainabi lity of the aforesaid additional affidavit by filing Misc. Case being MC(EP) No. 02(AP)/2012 and this Court by judgment and order dated 20.4.2012 accepted with d irection that it shall form a part of the election petition. In Moidutty’s case (supra), Kerala High Court found the affi 18. davit filed by the petitioner in support of the election petition, as not satis fying the requirements of the proviso to Section 83 (1) of the R.P. Act and For m No.25 prescribed under the Election Rules. In F.A. Sapa’s case (supra) also, i t is held that for want of affidavit in the required form and also for lack of p articulars, the allegation of corrupt practice cannot be enquired into and tried at all. In Narayan Swamy’s case (supra), it is held that the election petition alleging corrupt practice must be supported by an affidavit disclosing the sour ce of information and stating that the allegations are true to the petitioner’s knowledge. In the present case, the petitioner by filing an affidavit has discl osed the source of information and also mentioned that the allegations are true to his knowledge. The judgments in the above cited case extend support to the pe titioner’s case providing that the additional affidavit is accepted and treated as a part of the election petition. As I have, with reasons furnished above, onc e accepted it as a valid affidavit, it cannot be taken out of the record. In my considered view, in the attending facts and circumstances of the case and also o n application of the law in the above cases, the election petition has met the r equirements of filing affidavit to the election petition alleging corrupt practi ce and the same can be taken up for trial. For the above reasons, Issue No.1 st ands answered in the affirmative in favour of the election petitioner. Whether the polling team of 7-Roing polling stat 19. ion along with the EVM were kidnapped by the P.P.A. workers headed by one Shri G ichik Kiogi Taji in the night of 12.10.2009 and as a result of which, whether pr actically no election was held in the said polling station ? Issue No.2: The election petitioner, in support of his case, examined 4 witn esses including himself. The aforesaid witnesses, before commencement of trial, filed an evidence-in-affidavit as required under the provisions of the Civil Pr ocedure Code. Those affidavits have been marked as Ext.P/7, Ext.P/9, Ext.P/12 a nd Ext.P/13. Apart from the aforesaid paper exhibits, the petitioner relied on certain documents, mainly, the complaints lodged with the District Election Auth ority, which have been marked as Ext.P/8, Ext.P/10, Ext. P/13 and Ext.P/15 to Ex t.P/22. In his evidence-in-affidavit (Ext.P/7), Sri Tagru Taru stated that he w as the polling agent of Indian National Congress (in short I.N.C.) at 7-Roing Po lling Station. He was at Roing on 12.10.2009. The polling staff arrived in the e vening on the same day and he had a talk with them at night in the residence of one Sri Gichik Taming. On the next day, (i.e. 13.10.2009), he got up at 5 AM and went to see the polling staff, but he did not see the polling team nor even the E.V.Ms. He also stated that none of the workers of Sri Markio Tado (P.P.A. can didate) was present in the village and so, they presumed that the polling staff were kidnapped by the workers of Markio Tado headed by Sri Thaji Gichik Kiogi, Sri Yora Palang, Sri Yara Taha and Sri Nabam Tara. He along with other I.N.C. p arty workers started searching for the polling staff and headed towards Tali to lodge a complaint to the effect that the polling team has been kidnapped. But, on their way to Tali, they were interrupted at suspension bridge above Kamla Riv er and were threatened by firing from the opposite bank of the said river. Howe ver, they reached Tali at around 11 AM through alternative road. The affidavit and his signature on it have been proved and exhibited as Ext.P/7 and Ext.P/7(1) respectively. In his oral evidence, this witness proved the complaint filed by him, which has been marked as Ext.P/8 and his signature which has been marked a s Ext.8(1). In cross examination, he clarified that the Ext.P/8 was a photocopy of the complaint petition, which bears no endorsement of the officer or the off icials acknowledging receipt of the said complaint (Ext.P/8). He also clarified that the complaint was not written in his own hand. He does not know who scribed the Ext.P/8. He, however, denied the suggestion that the said Ext.P/8 was manuf actured after declaration of the election result. He also denied the suggestion that the polling team/personnel were not kidnapped by P.P.A. party workers heade d by Sri Thaji Gichik Kiogi, Sri Yaro Palang, Sri Yara Taha and Sri Nabam Tara b ecause there were policemen on duty with arms. This witness denied the suggestio n that there was no incident of kidnapping of polling officials and there was pe ace during poll on 13th October, 2009. He reiterated that there were no polling officials at 7-Roing Polling Station although several people came for casting t heir votes. The suggestion that they were not interrupted on the suspension brid ge above Kamla River and that there was no threat by firing from the opposite ba nk of the river, was also denied. He added that they could not cross the bridge due to firing from jungle opposite to the bridge. He also denied that he broug ht false allegation against the returned candidate and he has deposed falsely ag ainst him as he was a supporter of the defeated I.N.C party candidate.

20. On the same incident, Sri Gichik Tachu, an elected Anchalik S amiti Member (A.S.M.) was examined as P.W.8. In his evidence-in- affidavit which he proved and got it marked as Ext.P/9, bearing his signature ma rked as Ext.P/9(1), stated that no election was held at 7-Roing Polling Station as the polling team with E.V.M. was kidnapped by the workers of Sri Markio Tado headed by Sri Yara Palang, Sri Taji Gichik Kiogi and Sri Yara Taha. Being a re sponsible person, he along with Sri Gichik Tago, polling agent of I.N.C. candida te, lodged a complaint on 14th October, 2009 with the A.R.O. and demanded re-pol l. In his oral evidence before the Court, he proved the said complaint and his s ignature thereon as Ext.P/10 and Ext.P/10(1). He also identified and proved the signatures of Sri Gichik Tachu, which was marked as Ext.P/10(2). He also clarif ied that the complaint-Ext.P/10 was typed out and printed in computer at the pol ling station on 13.10.2009, but he accepted the suggestion that there was no pro vision for computer typing at Roing polling station. He again stated that Ext.P/ 10 was in fact, written by him at 7-Roing polling station and submitted the same before the A.R.O. concerned. But it was typed out and printed in computer. He denied that Ext.P/10 was manufactured as an afterthought just to make out a case . The said Ext.P/10 was written by his friend Sri R.T. Hake, Zilla Parishad Memb er (Z.P.M.), C.W.1 at Roing polling station. The said R.T. Hake is a resident o f Nobia village which falls under Pipsorang circle. The distance between Nobia v illage and Roing can be covered in 5 to 6 hours on foot and it takes whole day f or covering the distance from Nobia to 7-Roing polling station. He knew that sai d R.T. Hake cast his vote on 13.10.2009 at Nobia polling station. He clarified t hat he did not know whether the polling officials were kidnapped with E.V.M. by the workers of Sri Markio Tado headed by above named persons, but when he visite d the said polling station for casting the vote, he found no polling officials s ince the morning of 13.10.2009. He denied the suggestion that being supporter of I.N.C. party candidate, he made false deposition. He asserted that he was depri ved of precious right to vote. He firmly denied the suggestion that Ext.P/10 was manufactured after the election result was declared with intention to make out a case for the defeated candidate, Sri Takam Sorang. This witness was re-examine d by the petitioner. In re-examination, he stated that the complaint-Ext.P/10 w as written by hand on 13.10.2009 in the morning hours and Sri R.T. Hake left 7-R oing polling station immediately at 6 AM.

21. The election petitioner in support of the above allegation, exam ined one Sri Tami Tayak as P.W.11. Like other P.Ws, he also filed evidence-in-a ffidavit which he proved and got it marked as Ext.P/12 and his signature thereo n as Ext.P/12(1). In the said affidavit, he stated that he made a complaint to the Executive Magistrate, Tali regarding missing of polling team with E.V.M. He also stated that a joint representation signed by 5 signatories was submitted to the A.R.O. demanding re-poll at Roing polling centre since no polling team repo rted at the said polling centre and no election was held on 13.10.2009 at 7-Roin g polling station. He re-affirmed the aforesaid statements in his oral evidence. He has proved the said complaints marked as Ext.P/13 and Ext.P/14. He also pro ved his signature marked as Ext.P/13(1) and Ext.P/14(1). During cross examinatio n, he admitted that the complaints Ext.P/13 and Ext. P/14 are the photocopies wr itten by some person.On being asked who wrote the complaint Ext.P/8, this witn ess clarified that the complaints Ext.P/13 and Ext.P/14 are in the handwriting o f Sri R.T. Hake (C.W.1) who belongs to Nobia village. He cast his vote at Tali p olling station and he does not know at what polling station, the said Sri R.T. H ake cast his vote. He agreed that it takes 2 days on foot to cover the distance from Lukbia to 7-Roing polling station and it takes 3 hours at the maximum to co ver the distance on foot from Tali to 7-Roing polling station. According to him , Ext.P/13 was written at Tali on 13.10.2009 and he signed Ext.P/14 at Tali. How ever, he does not know where this exhibit was written. Like P.W.7 and 8, he als o denied the suggestion that Ext.P/13 and Ext.P/14 were manufactured by them thr ough Sri R.T. Hake after the I.N.C. candidate was declared defeated with intenti on to make out a case for him as he belongs to I.N.C. party. At the end of his evidence, he stated that Tali is situated at such a backward place, which is yet to be covered by mobile phone network and similar is the case in respect of 7-R oing Polling Station for which, the polling officials and police personnel were provided with Walky-Talky for their communication.

22. Court Witness No.1 Sri R.T. Hake testified that he scribed Ext.P /8, the missing report of polling team with ballot box and E.V.M. of 7-Roing Pol ling Station. He also scribed Ext.P/13 and Ext.P/14 in his own hand. He knows all the 5 persons who signed Ext.P/14. Those 5 persons carried and delivered Ex t.P/14 to the A.R.O. concerned. He even testified that he was present at the ti me of presenting the Exts.P/8, P/10, P/13 and P/14 before the officer concerned along with the signatories. He did not accept the statement of P.W.8 that he cas t his vote at Nobia Polling Station and also the statement that he left 7-Roing Polling Station after drafting Ext.P/8 at about 6 A.M. He clarified that he was at Tali Headquarters and wrote the said exhibits at Tali Headquarter s itself. He flatly denied the suggestion that he did not write the aforesaid ex hibits at Tali Headquarters on 13.10.2009 or 14.10.2009. He further denied the s uggestion that he did not cast his vote at Tali Headquarters. He, however, admit ted the suggestion that he had no personal knowledge about the alleged incident of booth capturing and rigging as he did not visit those places.

23. Against the aforesaid evidence of election petitioner, the resp ondent-returned candidate examined D.W.3, D.W.4, D.W.8 and D.W.23. D.W.3 is one Sri Yaro Taha who stated that he cast his vote at 7-Roing Polling Station. He w as present at the polling station at around 7 A.M. He saw the voters in queue. H e also saw the polling officials including the Presiding Officer and polling age nts of the respective candidates inside the polling station. To his knowledge, t here was no disturbance or violence inside the polling station. There were 2 pol icemen on duty at the said polling station. In cross examination, he stated that the polling officials arrived at the polling station on 12.10.2009 at 4 P.M. Th ey spent the night in the polling station. He denied the suggestion that the ele ction could not be held due to booth capturing or disturbance or violence in t he polling station on the day of poll. He also denied the suggestion that some supporters of returned candidate kidnapped the polling officials and captured t he polling booth. He further denied that he was one of the persons who kidnappe d the election officials. Sri Yara Palang(DW-4) stated that the election was he ld peacefully. There were policemen in the polling station. There were two que ues; one for male and the other for female voters. There were Presiding Officer ,Polling Officers, policemen and other voters. One Gyani Talu, polling agent of I.N.C. candidate was also present. In his opinion, there is no ground for chall enging the election of the Respondent No.1 because the election was conducted in a peaceful manner. In cross examination, he stated that he does not remember at what time the poll started at 7-Roing Polling Station. As he stays at a distan t place, he could not say where the polling staff stayed after arriving at 7-Roi ng Polling Station. He denied the suggestion that polling staff of 7-Roing Polli ng Station were kidnapped and election was not held peacefully.

24. D.W.8, Taji Gichik Kiogi, deposed that the handwriting and sign ature appearing on Ext.P/13 are not in the handwriting of P.W.11. He knows Sri Gichik Tago as he is his younger cousin brother. He also knows Sri Gichik Tachu as he is also his cousin brother. Both are voters of 7-Roing Polling Station. He denied the suggestion that under his leadership, booth capturing, kidnapping etc. took place at 7-Roing Polling Station on the day of poll and asserted that there was no chance of resorting to act of booth capturing, rigging and kidnappi ng as the Presiding Officer and polling officials besides security personnel and public were present at the polling station.

25. D.W.23, Sri Manje Tangjang is a Government official who was appo inted as Presiding Officer of 7-Roing Polling Station. He deposed that 3 pollin g officers were appointed along with him for the said polling station. They wer e lifted by Pawan Hans Helicopter service and were dropped at Tali on 10.9.2009. They halted at Tali on 10th October, 2009 and collected election materials on 1 1th October, 2009. As they were not familiar with the said place and people, th ey proceeded on foot to Roing on 12.10.2009 at about 7 A.M. with the help of por ters. They arrived at Roing at about 4.30/5 P.M. They were received by village headman and other local leaders who arranged one house for their stay. With the help of local people, they came to the polling station at around 5.20 A.M. for m aking necessary arrangement for the poll on 13.10.2009. At around 6.30 A.M., th ey conducted mock poll in presence of polling agents and the polling staff. The poll started at 7 A.M. On being identified by the polling agents, the voters we re allowed to come inside the polling booth and cast their vote. They conducted the poll peacefully and closed the E.V.Ms at around 3.30 P.M. and after completi ng the formalities at around 6.20 P.M., they left the polling station at 6.30 P. M. for Tali by different routes on foot. They arrived at Tali at about 11 P.M. and reported before the A.R.O. The poll materials were deposited/submitted and on 14.10.2009, they left Tali for Koloriang by helicopter service. He stated tha t no complaint was received from any body regarding alleged booth capturing and rigging at 7-Roing Polling Station. He further stated that as Presiding Officer, he maintained register of voters in Form-17-A which he proved and marked as Ext .D/21 which bears his signature marked Ext.D/21(1) and D/22(2). He maintained a ccounts of votes in Form-17C and also Presiding Officer’s Diary. 26. From the contents of Ext. P/8 it appears that PW 7 was an eye witness to the incident of kidnapping of polling team of 7-Roing polling station with E VMs by the PPA workers headed by DW 8 and he has deposed before the court about the same. PW 11 reported about the said incident vide a complainant dated 13.10. 2009(Ext. P/13). PW 8 also reported the A.R.O. vide complainant dated 13.10.2009 (Ext. P/10) about the same incident. In support of their allegations the said wi tnesses were examined themselves. Against their evidence the respondent returned candidate also examined DWs 3, 4, 8 and 23.

27. On perusal of the evidence on record, I find that the allegation of kidnapping of polling team with EVMs is not cogent and believable inasmuch a s it has been found that the polling team arrived at the polling station in the evening of 12.10.2009 and they were present in the 7-Roing polling station to co nduct the election. The witnesses of the petitioner did not inform the police fo r taking necessary action against the culprits. There is no evidence of lodging any FIR or complaint by the witnesses concerned. It may be held that there was a n attempt to kidnap the polling team with EVMs by interested parties but it did not succeed. In that view of the matter, I hold that the allegation of kidnappi ng of polling team with EVMs does not stand proved. Whether the election was con ducted at the 7-Roing polling station peacefully and without disturbance is a ma tter of examination on the basis of documentary and oral evidence available on r ecord. The parties concerned have adduced their oral and documentary evidence. I have already appreciated the evidence on record in respect of the alleged incid ent at 7-Roing polling station. Apart from the petitioner there are three witnes ses (PWs 7, 8 and 11) who have adduced their evidence. There is no independent w itness for the petitioner. PW 7 is the polling agent of the petitioner while the PW 8 is an ASM elected as an INC nominee and PW 11 was an INC worker. They have not bothered to examine any voter from the said polling station as independent witness to give evidence on the actual happenings that had taken place at the sa id polling station. As against the evidence of the petitioner’s witness, the res pondent returned candidate examined three witnesses who are his party workers. H e also examined one Presiding Officer as DW 23. No voter from the said polling s tation was examined as independent witness by the Respondent No. 1 also. For wan t of evidence of independent witnesses it is difficult to take a view for or aga inst the allegation. The balance tilts in favour of a returned candidate in so f ar as he has been able to examine the Presiding Officer concerned(DW 23) who has broadly deposed that the election was conducted peacefully and there was no inc ident of booth capturing, rigging and single-handed casting of votes and he rece ived no such complaint from anybody. On the face of such evidence the allegation brought by the petitioner against the returned candidate should be rejected and the issue should be answered in the negative in favour of the respondent. There is again a difficulty in holding the issue in favour of the respondent in view of the report of the experts and their evidence adduced as CW 2 and 3. I will co me to a final conclusion in this regard after discussing the other issues invol ved.

28. Issue No. 3 -Whether any election offence of booth capturing was committed at 2-Ruhi and 5-Guchi polling stations on 13.10.2009 by Markio Tado a nd his party workers by casting the votes single-handedly ? This issue pertains to two polling stations. First of all let me discuss about t he allegations of corrupt practice and the evidence on record adduced by the par ties. The allegation in this respect has been made in paragraph 7 of the electio n petition, particularly at Sl. No. 3 of the chart provided as part of the said paragraph. The names of persons (cid:28) who cast votes in place of other voters (cid:29) has b een furnished. It has mentioned the names of Shri Markio Tado, PPA candidate, Sh ri Mui Aman, Shri Mui Tai and Shri Tagiu (Tagio Taniang). The election petitione r, besides himself, has examined Shri Tamuk Taluk as PW 3. He had sworn one depo sition-in-affidavit filed on 5.5.2010 which he proved and got it marked as Ext. P/3 with his signature thereon marked as Ext. P/3(1). In the said affidavit he s tated that on 13th October, 2009 he went to cast vote and reported before the Pr esiding Officer as polling agent of INC candidate at 2-Ruhi polling station but he was obstructed by about 50 workers of Shri Markio Tado. He was checked and th reatened by the workers of Markio Tado with dire consequences if he volunteered to enter the polling booth. At that time the respondent Markio Tado was also sta nding with his said workers. He saw none in the queue near the polling booth til l the conclusion of poll. He did not sign any document as a polling agent. He wa s cross examined by the respondent’s counsel. He stated that he, on being appoin ted as a polling agent of election petitioner, came to the polling station with the appointment letter. He saw no policeman in the premises of the polling station nor did he see any pe rson in the premises of the polling station. He was allowed to go inside the pol ling booth but he did not lodge any complaint before any authority in this regar d. Regarding the alleged incident of 2-Ruhi polling station the election petitio ner submitted a complaint through fax dated 15.10.2009 which was proved by him and exhibited as Ext. P/15. The said complaint was addressed to the R.O. and it included the alleged incident of 7-Roing Polling Station. In the said complaint , Ext. P/15, he has not disclosed the source of his information.

29. The respondent returned candidate examined 5 witnesses as DW 1 , DW 14, DW 15, DW 16 and DW 28. DW 1 is Shri Mui Aman. He belongs to Ruhi villa ge. He has been impleaded as respondent No. 9 in the election petition. Accordin g to his evidence, there were two queues; one for the male and the other for the female voters. He cast his vote on the date of poll at the said polling station . Security personnel were posted at the polling station. The polling officials i nclude Presiding Officer and Polling Officers besides one Micro Observer sent by the Central Election Commission. Polling agents of the respective candidates we re present in the polling station. The election was held peacefully without any disturbance. There was no mobile phone facility at Ruhi where the polling statio n situates. Two IRBN personnel were posted with wireless set and they used to tr ansmit message every one hour. In cross examination he stated that he has been s erving as a teacher under the Sarba Siksha Abhijan since 2003. There is no motor able road connecting Ruhi village. The population of Ruhi village would be about 1500. The voters were in the queue since 7 AM on 13.10.2009. He does not rememb er at what time the poll concluded but he left the Ruhi polling station at abou t 9.30AM. He denied the allegation that the polling agent of INC candidate was n ot allowed to enter the Ruhi polling station. DW 14 is Shri Tagiu Tamang who was working as Chowkidar in the Electrical Department in the Government of Arunacha l Pradesh. He deposed that he cast his vote at 2-Ruhi polling station and he doe s not belong to any political party at the time of the election in question. He stood in the queue for casting vote. Outside the polling station he saw two pol icemen and inside the polling station he saw the Presiding Officer, Polling Offi cer and polling agents of both the election candidates. No disturbance or incide nt took place on the day of poll at 2-Ruhi polling station and the election was held peacefully. In cross examination he deposed that he cannot say how many PPA party workers were present at the polling station but he saw many people presen t at the polling station. He denied the suggestion that there was booth capturin g and rigging of votes at 2-Ruhi polling station. He also denied the suggestion that he was one of the persons who were allegedly involved in the act of booth c apturing and rigging of votes. He also denied the suggestion that PPA party cand idate Shri Markio Tado along with 50 workers captured the polling booth and rigg ed the votes.

30. DW 15 is one Mui Tai who was working as a teacher on contract basis under the Sarba Siksha Abhijan. He stood in the queue for casting vote an d he cast his vote at 2-Ruhi polling station. Inside the polling station he saw the Presiding Officer, Polling Officers and polling agents of the election candi dates. He saw two policemen on duty outside the polling station. He does not bel ong to any political party and he denied the allegation that the voters were obs tructed and prevented from casting their votes by the supporters of the PPA part y candidate. In cross examination he stated that the present MLA Mr. Markio Tado belongs to Ruhi village. He cannot say how many workers were there with Mr. Mar kio Tado when he visited the said polling station. However, he denied the sugges tion that the present MLA and his party workers indulged in the act of booth cap turing and rigging of votes at 2-Ruhi polling station.

31. DW 16 is Markio Raju, who is a resident of Ruhi village and w as the polling agent of the PPA candidate. He deposed that the polling officials arrived at Ruhi village on the previous day i.e. on 12.10.2009 and they stayed overnight in the house of village-headman and in the morning of the next day the y came to the polling station. There was a mock poll conducted in the polling bo oth in presence of Micro O