PARIHAR, J. - (1.) RAJASTHAN Legislative Assembly Elections were held on 1. 12. 2003. Nine candidates, including petitioner and respondents, contested the election for Ramgarh (District-Alwar) Assembly constituency. The results were declared on 4. 12. 2003. Respondent No. 1-Juber Khan was declared elected to the above Ramgarh Assembly Constituency by a margin of 783 votes. Petitioner contested the election on behalf of Bhartiya Janta Party, whereas, respondent No. 1-Juber Khan contested the election as a candidate of Indian National Congress.
(2.) PRESENT election petition has been filed challenging election of respondent No. 1 mainly on the grounds of assistance been sought from the government officials, booth capturing and voters belonging to weaker sections of the society been deprived of casting their vote been threatened and intimidated by the supporters of the winning candidate affecting the above elections materially. As per pleadings of the parties, following issues were framed by this Court vide order dated 1. 11. 2004:-      " 1. Whether the pleadings of the Election Petition are sufficient as required under the law and raises issues connected with requirement of Section 100 of the Representation of People Act, 1951? 2. Whether large scale booth-capturing was done by respondent No. 1 and his workers with his consent as alleged in the Election Petition and no effective steps were taken by the authorities in spite of written complaints made by the petitioner and his workers? 3. Whether assistance of gazetted officers was taken by the respondent No. 1 for prospect of his election as alleged in the Election Petition? 4. Whether forged and frivolous casting of votes took place in various manners as alleged in the Election Petition? 5.Whether the Electronic Voting Machine stopped working at 9. 30 AM after 150 votes had already been cast at Polling Station No. 44 and second voting machine having installed there, however, the votes cast in the first voting machine were not counted by the Returning Officer as alleged in the Election Petition? 6.Whether the application of re-counting of votes submitted by the petitioner was improperly rejected and improper counting of votes, as alleged in the Election Petition, was done? 7.Whether on account of non-compliance of provisions of the Representation of People Act, 1951 and the Conduct of Election Rules, 1961 and by commission of corrupt practice the result of election as far as respondent No. 1 is concerned has been materially affected? 8.Relief?" As per request made by learned counsel for the parties, issue No. 1 was also to be decided at the time of final hearing. Itnesses, including the petitioner himself, were examined in support of election petition, whereas, respondent No. 1 examined 33 wItnesses. Certain documents have also been filed on behalf of both the sides. Petitioner, in his affidavit, did not press the allegations mentioned in the election petition covered by issues No. 3, 4 and 6.
(3.) MR. S. R. Surana, learned counsel for the petitioner, submitted that every citizen of the country has a right to cast vote without fear and favour, however, in the present case, there have been large scale affray, assault and threatening to voters by respondent No. 1, his agents and supporters as well. It has been submitted that large number of voters belonging to weaker section of society in respective areas were deprived of casting their vote. It has further been submitted that in spite of repeated complaints been made by the petitioner before and during the course of election, sufficient preventive measures were not taken by the authorities concerned. As per evidence produced on behalf of petitioner, respondent No. 1 and his agents not only threatened voters but indulged in creating large scale chaos by throwing stones and giving beating by lathies and certain booths were almost captured by respondent No. 1 himself and his agents. Some of the witnesses sustained injuries and deprived of casting their vote have clearly named respondent No. 1 and his agents, however, no cross examination to that extent has been made of such witnesses on behalf of respondent No. 1, as such, the statements made by the witnesses have to be accepted. It has also been submitted that though the plea of alibi has been taken by respondent No. 1, however, it has not been proved at all in so far as the witnesses produced on behalf of the petitioner have not been cross examined on the point of presence of respondent No. 1 and his agents at particular place where booth capturing has been alleged. While relying on various judgments of Supreme Court, MR. Surana has submitted that apart from statements of witnesses, injury reports and complaints to the concerning authorities as also police have been submitted on behalf of the petitioner, however, the evidence so produced on behalf of the petitioner have not been properly rebutted by the respondent No. 1 at all. Mr. R. P. Singh, learned counsel appearing on behalf of respondent No. 1, on the other hand, has submitted that the election petition is liable to be dismissed on issue No. 1 itself since the same is lacking material particulars. It has been submitted that issues No. 3, 4 and 6 been abandoned by the petitioner, the burden heavily lies on the petitioner to prove the allegations of booth capturing, threatening and intimidation by the respondent No. 1, his agents and supporters, more so, when booth capturing is also a criminal offence and has to be proved beyond reasonable doubts. Even if there has been some disturbance at particular polling booths after closing of the voting, consent of a candidate or his agent in any such disturbance as alleged has to be proved. Mr. Singh further submitted that there have been material contradictions in the statements made by witnesses produced on behalf of the petitioner but even the documents so produced in support of the allegations do not carry confidence. Mr. Singh has also submitted that so far as allegations of Electronic Voting Machine (EVM) at Polling Station No. 44 having been stopped due to some mechanical defect is concerned, the voting machine at the above polling station was immediately replaced and all voters, who had earlier cast their vote were again allowed to cast their votes on the new electronic voting machine. Even otherwise, the number of votes already cast on the defective voting machine will not materially affect the ultimate result of the elections. Further, no complaint, whatsoever, was made by any individual voter that he was not allowed to cast his/her vote again on the voting machine so replaced. Mr. Singh further submitted that presence of respondent No. 1 on the alleged place of incident has specifically been denied, however, even above allegations are falsifies from the FIR lodged on behalf of the petitioner to the extent that name of respondent No. 1, who was the main contesting candidate, had been shown much lower in the list of accused and further in the same FIR the charge sheet has been filed by the police against a different person by the name of Juber Khan as is evident from father's name of respondent No. 1 as also Juber Khan against whom the charge sheet has been filed. ;