PUNIT RAI versus DINESH CHAUDHARY

Citation: [2003] SUPP. 2 S.C.R. 743 · Decided: 19-08-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

PUNIT RAI 
A 
v. 
DINESH CHAUDHARY 
AUGUST 19, 2003 
[V.N. KHARE, CJ., BRIJESH KUMAR AND S.B. SINHA, JJ.] 
B 
Election Laws: 
State Assembly Election-Reserved Constituency-Returned candidate- C 
Challenged on the ground that the returned candidate not belonging to 
Scheduled Caste-Dismissed by the High Court-On appeal, Held: Returning 
Officer entertaining grave doubt about the caste of the respondent and 
initiated criminal proceedings against him but accepted the nomination 
paper-Such acceptance was improper-Facts regarding second marriage of 
his father with his mother, a Scheduled Caste woman, was within his special D 
knowledge yet he failed to produce his parents as his witnesses-It is not 
appropriate to act upon statement of other witnesses-Adverse inference 
could be drawn against the respondent for withholding the best evidence 
available to determine his caste-Election of the respondent set aside-
Election Commission to hold election afresh-Evidence Act, 1872-Section E 
114(g)--Constitution of lndia-Artic/es 341 and 342. 
Appellant, respondent and others contested Assembly Election from a 
reserved constituency in the State of Bihar. Respondent was declared elected. 
Appellant challenged the election of the respondent on the ground that he did 
not belong to Scheduled Caste community. Earlier, the Returning Officer had F 
entertained doubts as to the caste of the respondent and initiated a criminal 
proceeding against him; he, however, accepted the nomination paper. High 
Court dismissed the election petition holding that the petitioner was not having 
any special knowledge as to the caste of the respondent as he was not from 
the family of the respondent, and that he could not produce any member of the G 
family of the respondent for examination before the Court to prove that the 
respondent did not belong to Scheduled Caste community. 
Allowing the appeal, the Court 
HELD: Per Brijesh Kumar, J. (for himself and CJI): 
H 
743 
744 
SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R. 
A 
1.1. There w~mld obviously be no occasion for the election petitioner to 
examine the father of the respondent in support of his case while challenging 
the election of his son. A person borne in a Kurmi family would normally be 
taken to be Kurmi by caste. But it is only in special circumstances, as may 
have been provided under a Circular of the Government of Bihar, that the caste 
B of the mother would be taken as the caste of the children, if she happens to be 
a Scheduled Caste, married to a non-Scheduled Caste. There is no denial of 
the fact that the father of the respondent as well as his wife is Kurmi by caste. 
The facts that he was borne from a woman, a scheduled caste, stated to be 
second wife of his father, of which special knowledge was with the respondent, 
he alone had to prove thoseJacts by adducing the best evidence on the point of 
C his being a Pasi by caste, a Scheduled Caste. (750-F, G, H; 751-AI 
1.2. It is clear that the respondent well understood the relevance arid 
weight of the evidence of his parents who were cited as witnesses in the list 
of witnesses but they have obviously been withheld and not produced before 
D the Court. Respondent has not indicated any reason for their non-production. 
At the same time the Court was led by the case of the respondent that his 
father did not take care of his sons after their birth and had left them. The 
High Court lost sight of the fact that despite such an averment made in the 
written statement father of the respondent has been cited as witness. Further, 
so far as mother is concerned, she was with the respondent and there is no 
E reason of any kind of bad relations between the respondent and his mother. 
The reason imagined by the Court for non-production of father of the 
respondent would not apply for his mother. [751-F, G, H; 752-A] 
1.3. In the instant case, the onus of proof that the respondent was Pasi 
by caste due to alleged second marriage of his father with his mother in some 
F other place was wholly within the special knowledge of the respondent. The 
respondent was supposed to prove the facts within his special knowledge by 
adducing best evidence, which he failed to do. In these circumstances, the High 
Court erred in observing that the appellant should have examined t1'.e father 
of the.respondent. The best evidence, as also according to the High Court, to 
G prove the case of the respondent was, to produce his parents but they have 
been wi

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