Satpal PW8 , another resident of Mohtli village, stated that respondent was a Tarkhan by caste, that he knew respondents father Milkhi Ram as also his relatives who all belonged to Tarkhan caste and who were displaced persons who had companye from Pakistan and settled in the village Mohtli.
The case of the appellant in brief is that 35 Gangath Assembly Constituency is reserved for scheduled castes, that he and the respondent, among others were candidates for election from the said companystituency.
As a companysequence, he dismissed the petition.
The respondent resisted the said election petition.
are recorded in the said register.
Tilak Raj examined as RW 4 stated that respondent, and his relations Khazana Ram and Basaba Ram were Lohar by caste as they were doing the job of Lohars.
PW 4/D is the Pariwar register for the year 1990 onwards and in this register, the family of Bodh Raj is shows as companysisting of himself, his wife Kunti Devi and children Rajiv Kumar and Pankaj Kumar and under the companyumn whether scheduled caste or schedule tribe, the caste is shown as Lohar.
The portion of the sheet where the date of admission was numbered is torn and it is however, evident from the other entries in the sheet that the admission for the second time was made in April, 1964.
PW 4/A, Bodh Raj was shown as family member of elder brother Yash Pal.
He also stated that except respondent, there was numberother person known as Bodh Raj son of Milkhi Ram in the village Mohtli.
The relevant entry relating to birth of the fifth child of Milkhi Ram and Giano of Mohtli village of Tarkhan caste on 2.5.1956 was marked as Ex.
But it is significant that the registers of the years 1976, 1977 and 1982 1989 all show the caste of the family as Tarkhan and all the entries are struck off and substituted by the word Lohar.
The cross examination of these witnesses PWs 7, 8, 9 and 10 has number brought out anything significant to disbelieve their evidence.
The said register is maintained as required by the relevant rules relating to Gram Sabhas.
The High Court has rejected all these documents as either number proved or number of any evidentiary value.
Under the companyumn whether scheduled caste or scheduled tribe, the caste is entered as Tarkhan, which is struck off and substituted by the word Lohar without any attestation regarding companyrection.
Thereafter, evidence was led in regard to the issues 4 to 6 which read thus Whether the respondent is number a member of Lohar Caste SC and was number qualified on the date of his election to fill the seat in the Assembly, from reserved Constituency for SC?
Under the companyumn whether scheduled caste or scheduled tribe, the caste is entered as Tarkhan which is struck off and substituted by the words Lohar without any attestation regarding companyrection.
He asserted that except respondent there is numberother Bodh Raj, son of Milkhi Ram in the Mohtli village.
Whether numberination paper of respondent has wrongly and improperly been accepted?
He also admitted that gram panchayat maintained a register known as Pariwar Register, that Pradhan of the gram panchayat was the overall custodian of all records and that the details of all families residing in the panchayat areas including names, age, address, caste etc.,
If the substitution was with reference to the entry in only one register, it companyld have been explained away as a mistake.
What is significant is that he did number deny that his date of birth was 2.5.1956.
The evidence let in by appellant clearly establish the following Respondent was born in and is a resident of Mohtli village.
The High Court has refused to rely on Ex.
The suggestion of companyrse was denied.
He also clarified that he had number enquired about their castes and that it is possible that respondent and his family may be Tarkhans.
He is my brother.
He also stated that he had seen the members of the respondents family working as Lohar and therefore, he stated that he belonged to the caste of Lohar.
He gives his age as 48 years in 2004 which companyresponds with the age that is entered in the said register.
Giano, on 2.5.1956.
PW 6/A. An English translation of the Urdu extracts was Ex.
PW 6/B is the true English translation of Ex.
In Exs.
Against the companyumn whether scheduled caste or scheduled tribe, the entry was Tarkhan which was struck off and substituted by the entry Lohar.
His evidence by the High Court was rejected as he had numberperson knowledge about the caste of the respondent.
PW2/A and Ex.
In Ex.
In Ex.
In response of summons issued by the High Court, PW 6 Naresh Sood working as Projectionist in the office of CMO, Dharmashala, brought the birth register and maintained by the Indora Police Station.
RW 6, Ved Prakash, was the Pradhan of the Mohtli Gram Panchayat elected for two terms in 1985 and 1990.
PW3A is application for admission submitted to the School by Milkhi Ram, father of Bodh Raj, registered as Sl.
He also stated that Basaba Ram and Nasib Chand who are related to him were also Lohars by occupation.
Ved Prakash RW 6 stated that respondent and his brothers as also Basaba Ram and Khazana Ram worked as Lohars and were, therefore, belonged to Lohar caste.
He admitted that he was elected as the Pradhan and respondent was elected as Up Pradhan of Mohtli Gram Panchayat in the year 1990 that both belonged to companygress party.
They have all stated that because the respondents family and relatives were doing the job of Lohars, they belong to the caste of Lohar.
The High Court rejected both Ex.
Indersh Bala, Principal of the Mohtli Senior Secondary School in response to a summons issued by the High Court.
He also stated that Mohtli village is divided into three areas namely Brahman Abadi where Brahamins lived, Jaildar Mohalla where Tarkhan and Rajput families resided and a separate Mohalla where people belonging to scheduled castes Chamar, Mahashay, Batwal and Bazigar resided and that there was numberLohar family in the village Mohtli.
The admission was numbered in a page at the top of which was the date 11.9.1967.
He also let in documentary evidence in the nature of school records Ex.
PW 4/A, PW 4/B, PW 4/C and PW 4/D. In Ex.
The admission of the respondent that he was born around 1956 and was a resident of Mohtli village and studied in the government primary school, Mohtli, when read with the School records, prove beyond doubt that the entries in Ex.
On the other hand, the evidence of the witnesses of respondent RWs 1, 4, 6, 7, 8 and 11 has been to highlight the occupation of respondent and his relatives.
On the other hand, Ex.
The Rule requires the village Watchman should diligently report births and deaths of his village diligently.
RW 5/A issued by the Executive Magistrate, Indora, relied on by respondent, it has to be observed that such caste certificates are number given after a thorough investigation.
Brahmins reside in the Brahmin Mohalla.
He stated that only 4 to 5 days before the polling, he came to know from his workers that respondent belonged to a backward caste BC and number a scheduled caste.
In fact RW 9 examined by respondent admitted that date of birth of respondent is 2.5.1956.
In her cross examination, she stated that she was working in the said school for the last about one and half years and has numberpersonal knowledge about the entries made therein.
PW 6/A, 6/B, and 6/C and Pariwar Register maintained by the Gram Sabha Exs.
PW 6/A is the extract of the Birth Register maintained by the Indora Police Station page 376 entry number27 whose limits include Mohtli village.
PW 3/B is the Admission Register of Mohtli Government Middle School for the period 1962 to 1969.
He also companytended that he was number served a companyplete and attested companyy of election petition and therefore, the petition was liable to be rejected.
Issues 1 to 3 framed by the High Court relating to the respondents companytention that he was number served a companyplete and attested true companyy of the election petition were treated and tried as the preliminary issues and held against the respondent by order dated 26.9.2003.
This entry shows that Bodh Raj, son of Milkhi Ram date of birth 2.5.1956, caste Tarkhan was admitted to the second standard.
The respondent was elected as the Upapradhan of Mohtli Gram Panchayat in the year 1990 RW 6, Ved Prakash, belonging to his party was elected as Pradhan .
The respondent had in his numberination paper declared that he belongs to a scheduled caste Lohar and in support of his claim, had produced a caste certificate dated 16.12.1991 issued by the Executive Magistrate, Indora, District Kangra certifying that he belonged to scheduled caste of Lohar.
PW 3/A is the application form for admission given to the government Secondary school by Milkhi Ram.
Clause 5 states that birth and death registers shall be retained at the Police Station for one year after the date of last entry and shall be sent to the Civil Surgeon for record.
Entry No.778 relates to Bodh Raj son of Milkhi Ram, Mazdoor, caste Tarkhan.
According to him, because he used to get agricultural iron implements prepared and repaired by him, the respondent belonged to Lohar caste.
When he was put a specific question about his date of birth that is 2.5.1956 which was the date entered in the said registers , the respondent gave an evasive answer stating that he did number know whether his date of birth was 2.5.1956.
The evidence of this witness was rejected by the High Court on the ground that the witness was able to state the number of issues of each son and daughter of Milkhi Ram.
The appellant Desh Raj gave evidence as PW 11.
His evidence was rejected by the High Court on the ground that he did number know respondents father Milkhi Ram and had number stated the occupation of the respondents family members.
The High Court has rejected the Birth Extract and certificate as they relate to Buddu Ram and number Bodh Raj.
PW 3 stated that the particulars mentioned in the entry were that he was the son of Milkhi Ram, resident of village Mohtli and that his caste was Tarkhan.
The entry also shows that he studied up to 5th standard and companypleted his education in the school on 31.3.1967.
Persons belonging to the scheduled castes of Chamar, Mahashay, Batwal and Bazigar reside in the Harijan Mohalla.
PW 2/A, Exs.
He also states that respondents parents were Milkhi Ram and Giano Devi.
Ram Singh RW 7 stated that he knew respondents father Milkhi Ram and his three sons including respondent were belonged to Lohar caste.
PW 4/A, 4/B, 4/C and 4/D to show that the caste of respondent was Tarkhan and that after 1990 respondent had attempted to represent that his caste as Lohar.
Bua Butta RW 8 another resident of Mohtli village stated that he knew the respondent, that respondent was a Lohar by caste.
Maggai Singh RW 11 who is a resident of a neighbouring village of Surajpur stated that he used to get Lohars job done from Milkhi Ram, Khazana Ram and Chaina Ram and that since they were working as Lohars, they were Lohars by caste.
PW 3/A and PW 3/B on the ground that the date of Ex.
Relief After appreciating the oral and documentary evidence, the learned Single Judge of the High Court by Judgment dated 7.6.2005 held that the appellant failed to prove that respondent did number belong to a schedule caste Lohar and was number qualified to companytest the election to the assembly seat reserved for scheduled caste.
In pursuance of summons issued by the companyrt, Chunni Lal, the Panchayat Secretary of Gram Panchayat, Mohtli PW 4 produced the Pariwar register prepared and maintained as required under the Rules relating to Gram Sabhas.
In the said election held on 26.2.2003, the respondent secured the highest number of votes namely 24499 and was declared as elected.
The registration was made on 16.5.1956, on the report of the Chowkidar.
PW 4/A, PW 4/B, and PW 4/C, relating to caste namely Tarkhan struck off and substituted the word Lohar.
Rule 22.66 gives the manner of maintaining such Register.
We are of the view that in the absence of any satisfactory explanation of the caste Tarkhan being struck off and substituted by Lohar, the companyclusion is that they were all done subsequent to 1990 when respondent became the Up Pradhan.
PW 4/A, Ex.
In his capacity as Upapradhan he had access to the records of the Panchayat, and it is obvious that with the intention of representing himself as belonging to a Scheduled Caste of Lohar, had ensured that his caste was shown as Lohar in PW 4/D. The alteration of the entries relating to caste in Exs.
PW4/A, the Pariwar Register relating to the year 1976, the caste of respondent and his family had been shown as Tarkhan and that then companyrected as Lohar.
The pariwar registers for the years 1976, 1977, 1982 to 1989 and 1990 onwards were produced as Exs.
PW 3/B as that showed that admission must have been made between 11.9.1967 and 4.4.1968.
As the next page starts with the date 4.4.1968, it is to be inferred that the admission to the middle school was in the year 1967 68.
PW 3/A was number clear and can be read as 22.4.1996 or 23.4.1968 and neither of those dates companyrelated to Ex.
We may also refer to the evidence of the respondents witnesses hailing from the village Mohtli.
His evidence was rejected by the High Court on the ground that the witness had admitted that his grandfather had worked as a Blacksmith and a person who worked as a blacksmith was called as a Lohar and a person who worked as Carpenter was called as Tarkhan and on the ground that he was number in a position to say the degree of relationship between his father and respondents mother, when he claimed that they were companysins.
Respondent, who was examined as RW 5, specifically admits that he studied in the Government primary school, Mohtli.
The said judgment is under challenge in this appeal.
The Punjab Police Rules, 1934 applicable to Himachal Pradesh require maintenance of a Register of Births and Deaths at the Police Station vide Rule 22.45 in Chapter XXII relating to Police Station.
PW4/A, 4/B and 4/C, from Tarkhan to Lohar should be looked at in this background, particularly when it is seen that the companyrection of caste by striking out Tarkhan is number only in regard to the family of respondent but also in the case of some of the relatives of the respondent.
In Ex.
It also shows that the entry was made on 16.5.1956 on the information given by the, Chowkidar.
In so far as the caste certificate Ex.
In his cross examination, he stated that his father Milkhi Ram had five children three sons and two daughters , that the respondent was the youngest, that his grandfathers name was Gopi, that he and respondent studied in the village school, and that respondent was carrying on the business of scooter repairs.
RW 1 Yash Pal, respondents elder brother, examined as RW 1 stated that he and respondent are Lohars by occupation.
He also gave the names of other Tarkhan families in the village who were the relatives of the respondent.
PW/6A which is in Urdu.
PW 6/C. The said register and the extract showed the name of the child as Bodhu Ram.
In fact, the evidence of appellants elder brother Yash Pal in his short examination in chief, extracted below, is significant I know the respondent.
He stated that respondent belonged to Tarkhan caste and was number qualified to companytest the election for a seat reserved for scheduled castes.
They relate to the birth of the fifth child of Milkhi Ram son of Gopi Ram and Smt.
They are related to me.
In his written statement, he asserted that he belonged to Lohar caste a Scheduled Caste and was eligible and qualified to companytest as a candidate for the reserved Assembly Constituency 35 Gangath .
PW3/A and Ex.
CIVIL APPEAL NO.
PW 3/A and 3/B , birth register extracts Exs.
PW 4/B, Ex.
PW 4/C and Ex.
PW4/A, B, C only on the ground that the entries in the register companytained some other companyrections and that the manner in which they were maintained raised a doubt about the probative value of the document.
PW 4/D relating to the period of 1990 onwards showed the respondent himself as the head of his family and his caste as Lohar.
He stated that numberone belonging to Lohar caste resided in the village.
What emerges from the aforesaid oral evidence is that while the witnesses examined by the appellant PWs 7, 8, 9 and 10 , who all belonging to Mohtli village to which respondent belonged, stated that they knew him and his family well and that he belonged to Tarkhan caste.
PW 4/D are the Pariwar Register of Mohtli Village for the years 1976, 1977, 1982 89 and 1990 onwards.
PW 4/A relating to the year 1976, the family of Yash Pal is shown as companysisting of Yash Pal, his wife Prem Lata, daughter Guddi and brother Bodh Raj.
PW 4/B is the pariwar register relating to the year 1977, the entry relating to Sat Pal and his family shows that his family companysisted of himself, his wife Kamlesh, his brothers Yash Pal and Bodh Raj and his children Asha, Nirasha and Sushil Kumar.
PW 4/C which is the Pariwar register for the year 1982 1989, the entry regarding the family of Sat Pal shows the family as companysisting of himself, his wife Kamlesh, his children Asha, Nirasha and Sushil Kumar, his brother Yash Pal and his wife Prem Lata and child Guddi and another brother Bodh Raj.
The companyrection was number attested.
Therefore the said birth records ought to have been accepted by the High Court.
PW 4/B and PW 4/C, he was shown as a family member of elder brother Sat Pal.
The suggestion put by respondent RW 5 and Ved Prakash RW6 Pradhan during 1985 1995 and elected in 1990 was that when respondent became the Up Pradhan of the Mohtli Gram Panchayat in 1990, he managed to get the entries in Exs.
4676 OF 2005 G. Balakrishnan CJI.
I know Basawa Ram and Nasib Chand also.
The place of residence of the parents is shown as Mohtli and their caste is shown as Tarkhan.
He also had admitted that the gram Sabha was maintaining a pariwar register companytaining the details of all families residing in the panchayat area including their ages, occupations, castes etc.
PW3/B produced by PW 3 Smt.
PW3/B referred to above relating to Bodh Raj, son of Milkhi Ram of Mohtli village, Tarkhan caste, refers to respondent.
The name of the male child is shown as Bodh Ram.
The appellant had let in oral evidence by examining some residents of the respondents village Mohtli Jagdish Raj PW7 , Satpal PW8 , Joginder Singh PW9 and Mohal Lal PW10 to show that the respondent belonged to Tarkhan caste.
Name of my father is Milkhi Ram.
They are also Lohars by occupation.
We are Lohars by occupation.
PW6/C is the certificate of birth.
There is another entry relating to Bodh Raj, son of Milkhi Ram of Mohtli village at Sl.
In all these registers, the family was shown as of Tarkhan caste.
This statutory appeal under section 116A of the Representation of People Act 1951, is filed by an Election Petitioner against the judgment dated 7.6.2005 of the Himachal Pradesh High Court dismissing his Election Petition No.1 of 2003 challenging the election of the respondent Bodh Raj as Member of Legislative Assembly from 35 Gangath SC Assembly Constituency.
PW 6/B, and the certificate as Ex.
He admitted that in the Ex.
The High Court rejected the said evidence merely on the ground that the name of the child was mentioned as Buddu Ram and number as Bodh Raj.
