Holding

The election of the returned candidate is void because he does not belong to a Scheduled Caste; the documentary evidence establishing his caste as Tarkhan is admissible and decisive, and the caste certificate is to be ignored.

Summary

In the 2003 Himachal Pradesh Legislative Assembly election for the SC‑reserved 35‑Gangath constituency, the respondent Bodh Raj was declared elected, claiming membership of the Scheduled Caste Lohar and supporting it with a caste certificate issued by an Executive Magistrate. The appellant Deshraj challenged the election, alleging that Bodh Raj actually belonged to the Tarkhan caste, which is not a Scheduled Caste in the State. The Supreme Court examined oral testimony from village residents and a series of public records – school admission registers, a birth register, and Pariwar registers – all indicating the respondent’s caste as Tarkhan, with later unauthenticated alterations to Lohar after 1990. The Court held that such documentary evidence is admissible under the Evidence Act and that the caste certificate, issued without thorough investigation, must be disregarded. Consequently, the election was declared void as the candidate was ineligible to contest a seat reserved for Scheduled Castes. The appeal was allowed, setting aside the High Court’s decision.

Issues considered

Whether the appellant proved that the returned candidate did not belong to the Scheduled Caste (Lohar) for which the constituency was reserved.
Whether school admission registers, birth registers and Pariwar registers are admissible evidence to establish caste under the Evidence Act.
Whether a caste certificate issued by an Executive Magistrate can be relied upon when contradicted by primary public records.
Whether the election of a candidate not belonging to a Scheduled Caste in a reserved constituency is void under the Representation of the People Act, 1951 and Article 173 of the Constitution.

Legislation cited

Constitution of Indias. Article 173
Indian Evidence Act, 1872s. 35, s. 72, s. 90
Punjab Police Rules, 1934s. 22.45, s. 22.66
Representation of the People Act, 1951s. 100(1)(a), s. 116-A, s. 5

Subjects

election lawreserved constituencyscheduled castecaste certificatepublic recordsevidence admissibilityvoid electionHimachal Pradesh

Judgment

,

f
DESHRAJ A
v.
BODHRAJ

NOVEMBER 30, 2007
B
[K.G. BALAKRISHNAN, CJ AND R.V. RAVEENDRAN, J.]

Representation ofthe People Act, 1951:
ss. 5 and JOO(l)(a)-Election in State Assembly Constituency C
reserved for Scheduled castes-Election of returned of candidate
challenged on the ground that he did not belong to Scheduled Caste-
HELD: In view of ss. 5 and JOO(l)(a) r/w Article 173 of the
Constitution, if a candidate, who contests election from the
Constituency reservedfor Scheduled Castes, is shown in a proceeding D
challenging his election, as not belonging to a Scheduled Caste, his ,.
election is liable to be declared as void:_On facts, from the oral and
documentary evidence adduced by the election-petitioner, it has been
established that the returned candidate did not belong to 'Lahar'
Scheduled Caste as claimed by him, but was of 'Tarkhan 'caste which
was not a Scheduled Caste in the State and, as such, his election is E
declared to be void-Constitution ofIndia, 1950-Article 173.
Evidence Act, 1872:
s. 72-Relevancy ofentries in public record made in performance
ofduty-School admission and withdrawal registers, Pariwar Registers F
and Birth Register showing the caste ofthe candidate and hisfamily-
HELD: All these public records were produced by authorities of
respective Government Institutions duly summoned and examined by
court as PWs-Entries in these records in regard to age, caste etc. are
considered as relevant and admissible-High Court erred in ignoring G
entries in these documents-Punjab Police Rules, 1934-rr. 22. 45 and
22.66-Representation ofthe People At, 1951-ss. 5 and lOO(l)(a).

757 H
t
758 SUPREME COURT REPORTS [2007] 12 S.C.R.

A s. 90-Presumption as to documents thirty years old-Application
for admission given to Government Secondary School showing the
caste of the candidate and his family-HELD: Documents are thirty
years old and attract the presumption u/s 90-Punjab Police Rules.
1934-rr. 22.45 and 22.66-Representation ofthe People At, 1951--
B ss. 5and100(l)(a). \>-

Judicial Notice-Caste certificate issued by Executive
Magistrate-HELD: Such caste certificates are not given after a
thorough investigation-~When school records show aparticular caste,
the caste certificates issued to the candidate and his relatives by
C Executive Magistrate showing a different caste should be ignored-·
Social status certificates.
The appellant and the respondent both, claiming themselves to
be members of Scheduled Castes, contested election for Member
D of Legislative Assembly from 35-Gangath (SC) Assembly
Constituency in the State ofHimachal Pradesh held on 26.2.2003,
and the respondent having secured the highest number of votes was
declared as elected. The appellant challenged the election of the
respondent in an election petition before the High Court on the
E ground that he did not belong to 'Lobar' caste, as claimed by him
through a caste certificate dated 16.12.1991 issued by the Executive
Magistrate, but belonged to 'Tarkhan' Caste which was not a
Scheduled Caste in the State. The respondent resisted the election
petition on the ground that he was' Lobar' which was a Scheduled
F Caste, and as such, was eligible and qualified to contest the election Y'
from the Constituency concerned. The High Court held that the
election petitioner failed to prove that the returned candidate did
not belong to Scheduled Caste (Lobar) and, as such, dismissed the
election petition.
G In the instant appeal filed by the election petitioner under s.116-
A of the Representation of the People Act, 1951, the question for
consideration was: Whether the appellant-election petitioner proved
that the respondent-returned candidate did not belong to 'Lobar'
caste- a Scheduled Caste in the State ofHimachal Pradesh?
H
t
DESHRAJv. BODHRAJ 759
1 -.,

Allowing the appeal, the Court A
HELD:l.1. In view of Sections 5 and lOO(l)(a) of the
Representation of the People Act, 1951 read with Article 173 of the
Constitution oflndia, if a candidate who contests election from the
constituency reserved for Scheduled Castes, representing himself
as belonging to a Schedule Caste, is shown in a proceeding B
challenging his election, as not belonging to a Schedule Caste of the
State, his election is liable to be declared as void.
[Para SJ [764-D, E)
1.2. In the instant case, the oral evidence of the witnesses
examined by the appellant election-petitioner (PWs 7, 8, 9 and 10),
c
who all belonged to the village to which the respondent-returned
candidate belonged, clearly shows that they knew the respondent
and his family well and that he belonged to 'Tarlrnan' caste. Their
1 cross-examination has not brought out anything significant to

-
,,;;.
disbelieve their evidence. On the other hand, the evidence of the D
witnesses of the respondent (RWs 1, 4, 6, 7, 8 and 11) has been to
highlight the occupation ofrespondent and his relatives. They have
all stated that because the respondent's family and relatives were
doing the job of'Lohars', they belong to the caste of'Lohar'. In fact,
the elder brother of the appellant in his examination-in-chief has E
---._
significantly stated that they and their relatives were 'Lohars' by
occupation. The respondent was evasive in his evidence about his
date of birth and particulars of his relatives in the village, to avoid
being linked to the caste mentioned in the school records. The
I y residents of a village have more familiarity with the 'caste' of a co- F
villager, than his date of birth. Several villagers who knew the
respondent and his father, including a cousin of the respondent have
been examined and they have stated the caste of the respondent as
'Tarkhan'. [Para 13 and 20) [767-F, G; 768-A; 771-B, CJ
2.1. The election petitioner also produced documentary G
.-{ evidence, namely, Ext. PW-2/A (admission and withdrawal register
of the Government Priman' School), Ext. PW3/A (application form
for admission given to Government Secondary School by father of
the respondent), Ext. PW3/B (Admission Register of Government
Middle School), Ext. PW 4/A, Ext. PW-4/B, Ext. PW-4/C (the Pariwar H
760 SUPREME COURT REPORTS [2007) 12 S.C.R.

A Registers for the years 1976, 1977, 1982-89 and 1990 onwards
respectively) and Ext. PW6/A (extract ofBirth Register maintained
by the Police Station). All these documents are the public records
maintained as per Rules in the usual course of discharge of official
functions. These records show the family of the respondent as of
B 'Tarlrnan' Caste. In thePariwar Register for the years 1976to1989
against the column 'whether scheduled caste or scheduled tribe', the
entry was 'Tarlrnan' which was struck off and substituted by the entry
'Lobar'. The correction was not attested. In the absence of any
satisfactory explanation of the caste 'Tarkhan' being struck off and
C substituted by 'Lohar', the conclusion is that the corrections were
all done subsequent to 1990 when respondent became the Up-
Pradhan. (Para 14, 15, 16, 17, 19 and 24] [768-C, E, G; 770-D;
773-F, G; 775-C, F]
2.2. The High Court erred in rejecting all these documents as
D either not proved or not of any evidentiary value. It committed an
error in ignoring the entries in these documents. It may be seen that
all these Government records were produced by the authorities of
the respective Government Institutions duly summoned and
examined by the Court as PWs. Having regard to the provisions of
E Section 35 of the Evidence Act, 1872, entries in school admission
registers in regard to age, caste etc., have always been considered
as relevant and admissible. Besides, the entries in the School
Registers were made nearly 40 years prior to filing of the election
petition. Ext. PW-3/A being a document more than 30 years old
attracts the presumption under Section 90 of the Evidence Act, 1872.
F It gives the caste as 'Tarkhan'. It has to be treated as clinching
evidence. [Paras 19, 20, 23 and 24) (770-E; 771-D, E; 772-C, HJ

Umesh Chandra v. State ofRajasthan, (1982] 2 SCC 202; State
ofPunjab v. Mohinder Singh, (2005] 3 SCC 702 and Kumari Madhuri
G Patil v. Add!. Commissioner, (1994] 6 SCC 241, relied on.

Birad Mal Singhvi v. Anand Purohit, AIR (1988) SC 1796,
referred to.

3.1. The evidence let in by the appellant clearly establish that
H
t
DESHRAJv. BODHRAJ 761

- 1
(a) the respondent was born in and is a resident ofMotli village. His A
date of birth is 2.5.1956; (b) respondent is the fifth and the last child
of his parents; (c) respondent was a student of government primary
and middle schools, Motli; School Registers show the caste of the
respondent as 'Takhan' on the basis of particulars furnished by his
father; (d) in the birth register maintained in the jurisdictional Police B
Station as per the Punjab Police Rules, his date of birth was
registered as 2.5.1956 and the caste of his parents was shown as
'Tarkhan'; and that (e) in the Pariwar Registers maintained by the
Gram Sabha between 1976 and 1989, the caste of his family was
shown as 'Tarkhan' and sometime thereafter it was struck off and c
shown as 'Lohar'. The evidence of the residents of respondent's
village (PWs. 7 to 10) support the same. There is nothing in the cross-
examination of PWs. 7 to 10 to disbelieve their statements that the
respondent belonged to Tarkhan caste. However, even if the entire
'
oral evidence is excluded, the documentary evidence produced by
.. i
the appellant, clearly demonstrates that the respondent's father and
D
his family members including the respondent had always held out to
be and accepted as persons belonging to 'Tarkhan' caste. It was only
after 1990, the respondent tried to show that he belonged to 'Lobar'
caste. [Para 25) [775-B, C, D, E, F, G; 776-A)
E
3.2. In so far as the caste certificate Ex.RW-5/A issued by the
Executive Magistrate and, relied on by the respondent, suffice it to
say, such caste certificates are not given after a thorough
investigation. When the caste of the respondent is in issue and when
' 'f primary evidence regarding caste is led by the appellant, and the F
attempt of the respondent to claim to be a 'Lobar' from 1990 is
evident, the caste certificate issued by the Executive Magistrate on
1.12.1991 cannot be taken as evidence to prove the caste of the
respondent. It has been observed by this Court that when school
records show a particular caste, the caste certificate issued to the G
A candidate and his relatives by the Executive Magistrate showing a
different caste should be ignored. [Para 26) [776-E, F, G]
Kumari Madhuri Patil v. Addi. Commissioner, [1994) 6 SCC 241,
relied on.
H
762 SUPREME COURT REPORTS [2007] 12 S.C.R.

r -
A 4. The appellant-election petitioner has clearly established that
the respondent and his family belong to 'Tarl<han' caste which is not
a Scheduled Caste in the State ofHimachal Pradesh. It is also clear
that from around 1990, the respondent has made efforts to show his
caste as 'Lohar', a Scheduled Caste. Consequently, the respondent
B who did not belong to a Scheduled Caste was not qualified to be
chosen to fill a seat in the Legislative Assembly reserved for
Scheduled Castes. Therefore, the judgment of the High Court is set
aside and the election of the respondent-returned candidate from
35-Gangath (SC) Assembly Constituency in the 2003 Election is
C declared to be void. [Para 27 and 28] [777-A, B, C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4676 of
2005.
From the final Judgment and Order dated 7.6.2005 of the High Court
D ofHimachal Pradesh at Shimla in Election Petition No. 1/2003.
Mahabir Singh, Ajay Pal, Nikhil Jain, Gagan Deep Sharma, Preeti
Singh and Dilbag Singh (for Sunil Kumar Jain) for the Appellant.
Anoop G. Choudhari, June Choudhari, J.S. Attri for the Resondent.
E The Judgment of the Court was delivered by
K.G. BALAKRISHNAN, CJI. l. This statutory appeal under
section l l 6A of the Representation of People Act 1951, is filed by an
Election Petition against the judgment dated 7.6.2005 of the Himachal
F Pradesh High Court dismissing his Election Petition No. I of 2003 " .
challenging the election of the respondent (Bodh Raj) as Member of
Legislative Assembly from 35-Gangath (SC) Assembly Constituency.
2. The case of the appellant in brief is that 35-Gangath Assembly
Constituency is reserved for scheduled castes, that he and the respondent,
G among others were candidates for election from the said constituency. 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
respondent had in his nomination paper declared that he belongs to a
scheduled caste (Lohar) and in support of his claim, had produced a caste
H
DESHRAJ v. BODHRAJ [K.G. BALAKRISHNAN, CJ.] 763
.-) -,
certificate dated 16.12.1991 issued by the Executive Magistrate, Indora, A
District Kangra certifying that he belonged to scheduled caste ofLohar.
Only a few days before the polling, the appellant learnt that respondent
does not belong to Lohar caste but belongs to 'Tarkhan' caste which is
not a scheduled caste in the State ofHimachal Pradesh. According to
Appellant, the respondent was disqualified to contest the election in the B
Assembly Constituency reserved for scheduled caste and therefore, the
election of the respondent was void.
3. The respondent resisted the said election petition. In his written
statement, he asserted that he belonged to Lohar caste (a Scheduled
Caste) and was eligible and qualified to contest as a candidate for the c
reserved Assembly Constituency (35-Gangath). He also contended that
he was not served a complete and attested copy of election petition and
therefore, the petition was liable to be rejected.
i 4. Issues 1 to 3 framed by the High Court (relating to the D
...;
respondent's contention that he was not served a complete and attested
true copy of the election petition) were treated and tried as the preliminary
issues a.TJ.d held against the respondent by order dated 26.9.2003.
Thereafter, evidence was led in regard to the issues (4) to (6) which read
thus: E
(4) Whether the respondent is not a member ofLohar Caste (SC)
and was not qualified on the date of his election to fill the seat
in the Assembly, from reserved Constituency for SC?
; °)' (5) Whether nomination paper of respondent has wrongly and
F
improperly been accepted?
(6) 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 not belong to a schedule G
)
caste (Lohar) and was not qualified to contest the election to the assembly
seat reserved for scheduled caste. As a consequence, he dismissed the
petition. The said judgment is under challenge in this appeal.
5. It is not in dispute that a person who does not belong to a H
764 SUPREME COURT REPORTS [2007] 12 S.C.R.

A scheduled caste, cannot offer himself as a candidate for election to a
reserved constituency. Article 173 of the Constitution prescribes the
qualification for membership of the State Legislature and provides that a
person shall not be qualified to be chosen to fill a seat in the legislature of
a State unless he is a citizen oflndia, not less than 25 years of age, and
B possesses such other qualifications as may be prescribed in that behalf
by or under any law made by Parliament. Section 5 of the Representation
of People Act, 1951 ('Act' for short) made by the Parliament prescribes
the qualification for membership of a Legislative Assembly. It provides
that a person shall not be qualified to be chosen to fill a seat in the
C Legislative Assembly of a State, reserved for the scheduled castes of that
State, unless he is a member of any of those scheduled castes and he is
an elector for any Assembly Constituency in that State. Section 100 of
the Act enumerates the grounds for declaring an election to be void.
Clause (a) of sub-section (1) thereof provides that ifthe High Court is of
D the opinion that on the date of his election, a return candidate was not
qualified, or was disqualified, to be chosen to fill the seat under the
Constitution or under the Act, the High Court shall declare the election
of the returned candidate to be void. Thus, if a candidate who contests
the election, representing himself by belonging to a schedule caste, is
E shown in a proceeding contesting his election, as not belonging to a
schedule caste of the state, his election is liable to be declared as void.
Therefore, the only question that arises for our consideration is whether
the appellant had proved that the respondent does not belong to 'Lohar
Caste' - a scheduled caste of the State of Himachal Pradesh.
F 6. The appellant had let in oral evidence by examining some residents
of the respondent's village Mohtli - Jagdish Raj (PW7), Satpal (PW8),
Joginder Singh (PW9) and Mohal Lal (PWl 0) to show that the respondent
belonged to 'Tarkhan' caste. He also let in documentary evidence in the
nature of school records (Ex.PW-2/A, Exs.PW-3/A and 3/B), birth
G register extracts (Exs.PW-6/A, 6/B, and 6/C) and Pariwar Register
maintained by the Gram Sabha (Exs.PW-4/A, 4/B, 4/C and 4/0) to show '
that the caste of respondent was 'Tarkhan' and that after 1990 respondent
had attempted to represent that his caste as Lohar. We will first consider
the oral evidence.
H
DESH RAJ v. BODH RAJ [K.G. BALAKRISHNAN, CJ.] 765
..... l
7. Jagdish Raj (PW7) stated that the respondent's mother and his A
father were cousins, that he and respondent belong to Tarl<han caste and
are residents ofMohtli village. According to him, the village has three
Mohallas. About ten families ofTarkhan caste and those belonging to the
Rajput caste reside in Jaildar Mohalla. Persons belonging to the scheduled
castes ofChamar, Mahashay, Batwal and Bazigar reside in the Harijan B
Mohalla. Brahmins reside in the Brahmin Mohalla. He stated that no one
belonging to 'Lohar' caste resided in the village. He also states that
respondent's parents were Milkhi Ram and Giano Devi. He also gave the
names of other Tarkhan families in the village who were the relatives of
the respondent. His evidence was rejected by the High Court on the c
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 not in a position to say the degree of
i relationship between his father and respondent's mother, when he claimed D
... that they were cousins.
8. Satpal (PW8), another resident of Mohtli village, stated that
respondent was a Tarkhan by caste, that he knew respondent's father
Mill<hi Ram as also his relatives who all belonged to Tarkhan caste and
who were displaced persons who had come from Pakistan and settled in E
the village Mohtli. 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
, y people belonging to scheduled castes - Chan1ar, Mahashay, Batwal and
Bazigar resided and that there was no Lohar family in the village Mohtli. F
He also stated that except respondent, there was no other person known
as Bodh Raj son of Mill<hi Ram in the village Mohtli. 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 ofMilkhi
Ram. G
' )
9. Joginder Singh (PW9), another resident ofMohtli village, stated
that respondent belonged to Tarkhan caste, that he also knew the
respondent's fatl1er Milkhi Ram as also their relatives who all belonged
to Tarkhan caste. He also stated that Milkhi Ram had five children namely
H
t
766 SUPREME COURT REPORTS [2007] 12 S.C.R.

r ,.....
A three sons (Sat Pal, Yashh Pal and Bodh Raj) and two daughters (Satya
Devi and Raj Rani) and the respondent was youngest among the five issues
ofMilkhi Ram. He also stated that Tarkhans and Rajputs reside in Jaildar
Mohalla, that persons belonging to scheduled castes of Chamar, Bazigar,
Batwal and Mahashay resided in a separate Mohalla, and Brahmins
B resided in another separate Mohalla. The evidence of this witness was +
rejected on the ground that he was a sympathizer towards BJP party to
which the appellant belonged and therefore, inimical towards respondent
who belonged to Congress Party.
I 0. Mohan Lal (PW! 0) who is also a resident of the Mohtli, stated
c that respondent belonged to Tarkhan caste and that there was no person
other than respondent in the village who is known as Bodh Raj, son of
Milkhi Ram and that no Lohar family resides in the Village Mohtli. His
evidence was rejected by the High Court on the ground that he did not
know respondent's father Milkhi Ram and had not stated the occupation I-
D of the respondent's family members.
...
11. The appellant Desh Raj gave evidence as PW- I I. He stated
that respondent belonged to Tarkhan caste and was not qualified to contest
the election for a seat reserved for scheduled castes. He stated that only
E to 5 days before the polling, he came to know from his workers that
4
respondent belonged to a backward caste (BC) and not a scheduled
caste. His evidence by the High Court was rejected as he had no person
knowledge about the caste of the respondent.
12. We may also refer to the evidence of the respondent's witnesses
F hailing from the village Mohtli. RW-1 Yash Pal, respondent's elder ~
.
brother, examined as RW-1 stated that he and respondent are Lohars by
occupation. He also stated that Basaba Ram and Nasib Chand who are
related to him were also Lohars by 'occupation'. In his cross-examination,
he stated that his father Milkhi Ram had five children (three sons and two
G daughters), that the respondent was the youngest, that his grandfather's
name was Gopi, that he and respondent studied in the village school, and ,,
i.
that respondent was carrying on the business of scooter repairs. Tilak Raj
examined as RW-4 stated that respondent, and his relations Khazana Ran1
and Basaba Ram were Lohar by caste as they were doing the job of
H Lohars. Ved Prakash (R W-6) stated that respondent and his brothers as
DESH RAJ v. BODH RAJ [K.G. BALAKRISHNAN, CJ.] 767

also Basaba Ram and Khazana Ram worked as Lohars and were, A
therefore, belonged to Lohar caste. He admitted that he was elected as
the Pradhan and respondent was elected as Up Pradhan ofMohtli Gram
Panchayat in the year 1990 that both belonged to congress party. He also
admitted that gram panchayat maintained a register known as Pariwar
Register, that Pradhan of the gram panchayat was the overall custodian B
of all records and that the details of all families residing in the panchayat
areas including names, age, address, caste etc., are recorded in the said
register. He admitted that in the Ex.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 corrected as 'Lohar'. Ram Singh (RW-7) stated c
that he knew respondent's father Milkhi Ram and his three sons including
respondent were belonged to Lohar caste. He also stated that he had
seen the members of the respondent's family working as Lohar and
therefore, he stated that he belonged to the caste of Lohar. Bua Butta
(R W-8) another resident of Mohtli village stated that he knew the D
respondent, that respondent was a Lohar by caste. According to him,
because he used to get agricultural iron implements prepared and repaired
by him, the respondent belonged to Lohar caste. He asserted that except
respondent there is no other Bodh Raj, son ofMilkhi Ram in the Mohtli
village. Maggai Singh (RW-11) who is a resident ofa neighbouring village E
ofSurajpur stated that he used to get Lohar's job done from Milkhi Ram,
Khazana Ram and Chaina Ram and that 'since they were working as
Lohars, they were Lohars by caste. He also clarified that he had not
enquired about their castes and that it is possible that respondent and his
family may be Tarkhans.
F
13. 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 th_ey
knew him and his family well and that he belonged to Tarkhan caste. The
cross-examination of these witnesses (PWs 7, 8, 9 and 10) has not G
brought out anything significant to disbelieve their evidence. 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. They have all stated that because the respondent's family and
relatives were doing the job of Lohars, they belong to the caste of'Lohar'. H
768 SUPREME COURT REPORTS [2007] 12 S.C.R.

A In fact, the evidence of appellant's elder brother Yash Pal in his short
examination-in-chief, extracted below, is significant:
"I know the respondent. He is my brother. We are Lohars by
occupation. Name of my father is Milkhi Ram. I know Basawa
Ram and Nasib Chand also. They are related to me. They are also
B Lohars by occupation."

14. We will next consider the documentary evidence. Ex.PW-2/A
is the admission and withdra'val Register of Government Primary School,
Mohtli for the relevant period. Entry at SL No.1739 in the said Register
C shows that Bodh Raj, son of Milkhi Ram, Labourer (date of birth
2.5.1956; caste: Tarkhan) was admitted on 16.4.1962 to the First
Standard and his name was struck off due to lack of attendance on
11.2.1964. There is another entry relating to Bodh Raj, son ofMilkhi Ram
ofMohtli village at SI. No. 1959. This entry shows that Bodh Raj, son
D ofMilkhi Ram (date of birth 2.5.1956, caste: Tarkhan) was admitted to
the second standard. The portion of the sheet where the date of admission
was noted 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.
The entry also shows that he studied up to 5th standard and completed
E his education in the school on 31.3.1967.
15. Ex.PW-3/A is the application form for admission given to the
government Secondary school by Milkhi Ram. It gives the name of the
student as Bodh Raj, father's name as Milkhi Ram, date of birth as
2.5.1956 and the caste as Tarkhan. It contains the thumb mark ofMilkhi
F Ram. Ex.PW-3/B is the Admission Register of Mohtli Government Middle
School for the period 1962 to 1969. Entry No. 778 relates to Bodh Raj
son of Milkhi Ram, Mazdoor, caste Tarkhan. The admission was noted
in a page at the top of which was the date 11.9.l 967. As the next page
starts with the date 4.4.1968, it is to be inferred that the admission to the
G middle school was in the year 1967-68.
16. Ex.PW-6/A is the extract of the Birth Register maintained by
the Indora Police Station (page 376 entry no.27) whose limits include
Mohtli village. Ex.PW-6/B is the true English translation of Ex. PW/6A
H which is in Urdu. Ex. PW6/C is the certificate of birth. They relate to the
DESHRAJv. BODHRAJ(K.G.BALAKRISHNAN,CJ.] 769

birth of the fifth child ofMilkhi Ram (son of Gopi Ram) and Smt. Giano, A
on 2.5.1956. The place of residence of the parents is shown as Mohtli
and their caste is shown as Tarkhan. The name of the male child is shown
as Bodh Ram. The registration was made on 16.5 .1956, on the report
of the Chowkidar.
B
17. Ex.PW-4/A, Ex.PW-4/B, Ex.PW-4/C and Ex.PW-4/D are the
Pariwar Register of Mohtli Village for the years 1976, 1977, 1982-89
and 1990 onwards. The said register is maintained as required by the
relevant rules relating to Gram Sabhas. In Ex.PW-4/A relating to the year
1976, the family ofYash Pal is shown as consisting ofYash Pal, his wife C
Prem Lata, daughter Guddi and brother Bodh Raj. Under the column
'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 correction. In Ex.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 consisted of himself, his wife Kamlesh, his brothers Yash D
Pal and Bodh Raj and his children Asha, Nirasha and Sushil Kumar. Under
the column '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 correction. In Ex.PW-4/C which
is the Pariwar register for the year 1982-1989, the entry regarding the E
family of Sat Pal shows the family as consisting 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. Here again, under the column 'whether scheduled caste or scheduled
tribe', the entry is 'Tarkhan' which is struck off and substituted by the word F
'Lobar' without any attestation regarding the correction. Ex.PW-4/D is
the Pariwar register for the year 1990 onwards and in this register, the
family of Bodh Raj is shows as consisting of himself, his wife Kunti Devi
and children Rajiv Kumar and Pankaj Kumar and under the column
'whether scheduled caste or schedule tribe', the caste is shown as 'Lohar'. G
18. The High Court has rejected all these documents as either not
proved or not of any evidentiary value. We may now consider whether
they were properly proved.
19. Ex.PW-2/A (admission and withdrawal register ofthe government H
770 SUPREME COURT REPORTS [2007] 12 S.C.R.

A primary school, Mohtli) was produced by PW-2 (Kamla Kumari)
employed in the Government primary school, Mohtli, in response,
summons issued to the said school to produce the said register. She also
gave evidence regarding entries nos. 1739 and 1959 relating to Bodh Raj
and gave the particulars entered in regard to Bodh Raj under the said
B two entries. In her cross-examination, she stated that she has lx.-en posted
in the said school for the last two years and that she had not made the
said entries. The High Court has rejected the said School Register on the
ground that the said register Ex.PW-2/A and the entries therein relating
to Bodh Raj merely on the ground that PW-2 was not the author of the
c entries and she has no personal knowledge about the entries. The High
Court relied on the decision ofthis Court in Birad Mal Singhvi v. Anand
Purohit, AIR ( 1988) SC 1796.
20. Section 35 of the Evidence Act provides that an entry in any
public or other official book or register or record, stating a fact in issue
D or relevant fact and made by a public servant in the discharge of his official
duty or by any other person in perfonnance of a duty specifically enjoined
by law of the country in which such book or register is kept, is itself a
relevant fact. Having regard to the provisions of Section 35, entries in
school admission registers in regard to age, caste etc., have always been
E considered as relevant and admissible. [See: Umesh Chandra v. State
of Rajasthan, [1982] 2 SCC 202 and State of Punjab v. Mohinder
Singh, [2005] 3 SCC 702. In Kumari Madhuri Patil v. Addi.
Commissioner, [1994] 6 SCC 241 ], this Court observed that caste is
reflected in relevant entries in the public records or school or college
F admission register at the relevant time and certificates are issued on its
basis. In Birad Mal Singhvi (supra), this Court after referring to the
ingredients of section 35 held thus :
"An entry relating to date of birth made in the school register is
relevant and admissible under section 35 of the Act, but the entry
G
regarding to the age of a person in a school register is of not much
evidentiary value to prove the age of the person in the absence of
material on which the age was recorded ...... The entries regarding
dates of birth contained in the scholar's register and the secondary
school examination have no probative value, as no person on whose
H
DESHRAJv. BODHRAJ[K.G. BALAKRISHNAN,CJ.] 771

infonnation the dates of birth of the aforesaid candidates was A
mentioned in the school record, was examined. In the absence of
the connecting evidence, the documents produced by the
respondent, to prove the age of the aforesaid two candidates have
no evidentiary value."
B
This Court further held unless the parents, or persons conversant with their
date of birth were examined, the entry in the school register by itself will
not have much evidentiary value. In this case, we are concerned with the
'caste' and not the date of birth. The residents of a village have more
familiarity with the 'caste' of a co-villager, than the date of birth of the C
co-villager. Several villagers who knew the respondent and their father,
including a cousin of the respondent has been examined and they have
stated the caste of the respondent. Appellant has also produced other
documentary evidence which clinch the issue, namely the application made
by the respondent's father for admission of respondent to school, birth
register extract and village Pariwar Register extracts to establish the caste D
of the respondent. Further the said entries in the school register were made
nearly forty years prior to the election petition. When read with other oral
and documentary evidence, it cannot be said that Ex.PW-2/A has no
evidentiary value even by applying the strict standards mentioned in Birad
Mal Sanghvi. E

21. We will next refer to Ex. PW3/A and Ex. PW3/B produced by
PW-3 Smt. Indersh Bala, Principal of the Mohtli Senior Secondary School
in response to a summons issued by the High Court. Ex. PW3A is
application for admission submitted to the School by Milkhi Ram, father F
of Bodh Raj, registered as Sl.No.478. Ex.PW-3/B is the School
Admission Register and entry 778 showed that Bodh Raj son of Milk.hi
Ram, caste Tarl<han, was admitted to Middle School and had passed 8th
standard from the school. PW-3 stated that the particulars mentioned in
the entry were that he was the son of Milkhi Ram, resident of village Mohtli G
and that his caste was Tarkhan. In her cross-examination, she stated that
she was working in the said school for the last about one and half years
and has no personal knowledge about the entries made therein. The High
Court rejected both Ex.PW-3/A and PW-3/B on the ground that the date
ofEx.PW-3/A was not clear and can be read as 22.4.1996 or 23.4.1968
H
772 SUPREME COURT REPORTS [2007] 12 S.C.R.

A and neither of those dates correlated to Ex.PW-3/B as that showed that
admission must have been maae between 11.9.1967 and 4.4.1968. It is
evident from Ex.PW-2/A that Bodh Raj left the primary school on
31.3.1967. The date on which the application for admission was registered
was seen as '22.4.196_'. Only regarding the last figure in the 'year' the
B court had a doubt whether it was '6' or '7' or '8' as that would make the
year 1966, or 1967, or 1968. Merely because there was difficulty in
reading one figure in the date cannot be a ground to refuse to accept
Ex.PW-3/A. The said application submitted by Milkhi Ram, containing
his thumb mark, being a document more than 30 years old attracts the
C presumption under section 90 of evidence Act. As Ex.PW-3/A gives the
caste as 'Tarkhan', it has to be treated as clinching evidence. Ex.PW-3/
B which was also produced from proper custody in pursuance of summons
issued from the court showed that Bodh Raj, son ofMilkhi Ram, Tarkhan
caste, belonging to Mohtli village studied upto 8th standard. Here again
D it should be noticed that the evidence of the witnesses of both appellant
and respondent is that there is only one Bodh Raj, son of Milkhi Ram in
Mohtli village. Therefore, there was no justification to hold that there were
some irreconcilable difference between Ex.PW-3/A and Ex.PW-3/B and
rejected both the documents. Another reason given by the High Court to
E reject the said evidence is that Ex.PW-3/B showed that the Bodh Raj
had passed the 8th Standard and whereas he had stated in his cross
examination that his qualification is under 'middle'. The High Court
interpreted this as having failed in 8th standard, and considered the said
statement as a contradiction and therefore, an additional ground for
rejecting Ex.PW-3/B. The Respondent had been evasive in his evidence
F about his date of birth and particulars ofhis relatives in the village, to avoid
being linked to the caste mentioned in the school records. Therefore, his
statement that he was under 'middle' was not a ground to reject the
correction ofEx.PW-3/B. Insofar as the evidentiary value ofEx.PW-3/
B, our observation with reference to Ex.PW-2/A equally apply to Ex.PW-
G 3/Balso.
22. We are of the view that the High Court committed an error in
ignoring the entries in the admission and withdrawal registers of the
government primary and middle schools, Mohtli (Ex. PW-2/A and Ex.
H PW-3/B). We have already noticed the evidence (of PW8 and RW8)
-f
DESHRAJv. BODHRAJ[K.G. BALAKRISHNAN,CJ.] 773

that there is only one Bodh Raj, son ofMilkhi Ram in the village ofMohtli. A
Respondent does not claim that there was any other Bodh Raj, son of
Milkhi Ram in the village ofMohtli. Respondent, who was examined as
RW-5, specifically admits that he studied in the Government primary
school, Mohtli. He gives his age as 48 years in 2004 which corresponds
with the age that is entered in the said register. When he was put a specific B
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 not know whether his date of birth was 2.5 .1956. What
is significant is that he did not deny that his date of birth was 2.5.1956.
In fact RW-9 examined by respondent admitted that date of birth of c
respondent is 2.5.1956. The admission of the respondent that he was bom
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. PW2/A and Ex. PW3/B
-f referred to above relating to Bodh Raj, son ofMilkhi Ram ofMohtli D
village, Tarkhan caste, refers to respondent.
23. 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.
The relevant entry relating to birth of the fifth child ofMilkhi Ram and ·J2
Giano of Mohtli village of Tarkhan caste on 2.5 .1956 was marked as
Ex.PW-6/A. An English translation of the Urdu extracts was Ex.PW-6/
B, and the certificate as Ex.PW-6/C. The said register and the extract
showed the name of the child as 'Bodhu Ram'. It also shows that the entry
was made on 16.5.1956 on the infonnation given by the, Chowkidar. The F
High Court rejected the said evidence merely on the ground that the name
of the child was mentioned as 'Buddu Ram' and not as Bodh Raj. This
again is a public record relating to births maintained as per Rules in the
usual course of discharge of official functions. The Punjab Police Rules,
1934 (applicable to Himachal Pradesh) require maintenance of a Register G
of Births and Deaths at the Police Station (vide Rule 22.45 in Chapter
XXII relating to Police Station. Rule 22.66 gives the manner of maintaining
such Register. 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. The Rule requires the village H
~
774 SUPREME COURT REPORTS [2007] 12 S.C.R.
..
A Watchman should diligently report births and deaths ofhis village diligently.
Therefore the said birth records ought to have been accepted by the High
Court. The High Court has rejected the Birth Extract and certificate as
they relate to Buddu Ram and not Bodh Raj. It is quite possible that the
person who gave infonnation mentioned the name as Buddu Ram instead
B of Bodh Raj or that the child was also known as Buddu Ram initially.
But what is relevant is that fifth child ofMilkhi Ram and Giano ofMohtli
village who belonged to Tarl<han caste was born on 2.5.1956. It is
nobody's case that Milkhi Ram and Giano ofMohtli village had some other
fifth child born on 2.5.1956.
c 24. In pursuance of summons issued by the court, 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. The pariwar registers for the years 1976, 1977,
D
1982 to 1989 and 1990 onwards were produced as Exs.PW-4/A, PW- .
,
4/B, PW-4/C and PW-4/D. In Ex.PW-4/A, Bodh Raj was shown as
family member of elder brother Yash Pal. In Exs.PW-4/B and PW-4/C,
he was shown as a family member of elder brother Sat Pal. In all these
registers, the family was shown as ofTarkhan caste. Against the column
'whether scheduled caste or scheduled tribe', the entry was 'Tarl<han' which
E was struck off and substituted by the entry Lohar. The correction was
not attested. On the other hand, Ex.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. RW-6, Ved Prakash, was the Pradhan of the Mohtli Gram
Panchayat elected for two tenns in 1985 and 1990. He also had admitted
'f
F that the gram Sabha was maintaining a pariwar register containing the
details of all families residing in the panchayat area including their ages,
occupations, castes etc. 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
G Panchayat in 1990, he managed to get the entries in Exs.PW-4/A, PW-
4/B, and PW-4/C, relating to caste namely 'Tarkhan' struck off and ~
\
substituted the word 'Lohar'. The suggestion of course was denied. If the
substitution was with reference to the entry in only one register, it could
have been explained away as a mistake. But it is significant that the
H registers of the years 1976, 1977 and 1982-1989 all show the caste of
i
I

DESHRAJv. BODHRAJ[K.G.BALAKRISHNAN,CJ.] 775

the family as 'Tarl<han' and all the entries are struck off and substituted A
by the word 'Lohar'. The High Court has refused to rely on Ex. PW4/A,
B, C only on the ground that the entries in the register contained some
other corrections and that the manner in which they were maintained raised
a doubt about the probative value of the document. We are of the view
that in the absence of any satisfactory explanation of the caste 'Tarkhan' B
being struck off and substituted by 'Lohar', the conclusion is that they were
all done subsequent to 1990 when respondent became the Up-Pradhan.
25. The evidence let in by appellant clearly establish the following:
(a) Respondent was born in and is a resident ofMohtli village. c
His date of birth is 2.5.1956.
(b) Respondent is the last and fifth child of his parents are Milki
Ram and Giano. Respondent is the only 'Bodh Raj', son of
Mill<hi Ram in Mohtli village.
(c) Respondent was a student of government primary and middle D
schools, Mohtli. The school records show that Respondent is
the son ofMilkhi Ram ofMohtli and his caste was Tarkhan
on the basis of particulars furnished by his father.
(d) In the birth register maintained in the jurisdictional Police E
Station as per the Punjab Police Rules, his date of birth was
registered as 2.5.1956 and the caste of his parents was shown
as Tarkhan;
(e) That in the Pariwar Registers maintained by the Gram Sabha
between 1976 and 1989, the caste of his family was shown F
as 'Tarkhan' and that sometime thereafter, it was struck off and
shown as 'Lohar'.
The evidence of the residents ofMohtli village (PWs.7 to 10) support
the same. There is nothing in the cross-examination of PWs.7 to 10 to G
-- disbelieve their statements that the respondent belonged to Tarkhan caste.
However, even if we exclude the entire oral evidence, the documentary
evidence produced by the appellant, to which we have adverted to above,
clearly demonstrate that the respondent's father and his family members
including respondent had always held out to be and accepted as persons H
~

776 SUPREME COURT REPORTS [2007] 12 S.C.R.
,_ ~

A belonging to Tarlchan caste. It was only after 1990, the respondent tried
to show that he belonged to Lohar caste.
26. The Learned counsel for the respondent submitted that in view
of Ex. PW4/D and Ex.RW-5A, he should be considered as having
established that he belongs to Lohar caste. Ex. PW-4/D is the Pariwar
B
Register extract for the year 1990 onwards. The same no doubt shows
the caste of respondent as Lohar. But when Ex.PW-4/D is read in
conjunction with PW-4/A, PW-4/B and PW-4/C which are the Pariwar
Register extracts relating to the previous years (1976, 1977 and 1982-
1989) where his caste was shown as Tarlchan and later altered as 'Lohar',
c the entry in Ex.PW-4/D becomes a self serving statement. The respondent
was elected as the Upapradhan ofMohtli Gram Panchayat in the year
1990 (RW-6, Ved Prakash, belonging to his party was elected as
Pradhan). In his capacity as Upapradhan he had access to the records
of the Panchayat, and it is obvious that with the intention of representing ""
D himself as belonging to a Scheduled Caste ofLohar, 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, 4/B and 4/C, from 'Tarkhan' to 'Lohar' should
be looked at in this background, particularly when it is seen that the
correction of caste by striking out 'Tarkhan' is not only in regard to the
E family of respondent but also in the case of some of the relatives of the
respondent. In so far as the caste certificate Ex.RW-5/A issued by the
Executive Magistrate, Indora, relied on by respondent, it has to be
observed that such caste certificates are not given after a thorough
investigation. When the caste of respondent is in issue and when primary i •
F evidence regarding caste is led by appellant, and the attempt of respondent
to claim to be a 'Lohar' from 1990 is evident, the caste certificate issued
by the Executive Magistrate on 1.12.1991 cannot be taken as evidence
to prove the caste of the respondent. The decision of this Court in R.
Palanimuthu v. Returning Officer, [1984 (Supp.) SCC 77), supports
G this position. In Madhuri Patil (supra), this court observed that when
the school records show a particular caste, the caste certificates issued > -·
to the candidates and his relatives by the Executive Magistrate showing a
different caste should be ignored. Reference was also made to the caste
certificate of two relatives. But they are also of the period subsequent to
H 1990 when respondent started showing that he belonged to Lohar caste.
DESHRAJv. BODHRAJ[K.G.BALAKRISHNAN,CJ.] 777
_,, I

They have to be ignored as observed by this Court in Madhuri Patil A
(supra).
27. In view of the above, we are of the view that the appellant has
clearly established that the respondent and his family belong to Tarkhan
caste which is not a scheduled caste in Hirnachal Pradesh. It is also clear B
that from around 1990, the respondent has made efforts to show his caste
as 'Lobar', a scheduled caste. Consequently, we hold that the respondent
who did not be~ong to a Scheduled Caste, was not qualified to be chosen
to fill a seat in the Legislative Assembly reserved for Scheduled Castes.
28. Therefore, we allow this appeal, set aside the judgment of the C
High Court and declare the election of the returned candidate (Bodh Raj)
from 35-Gangath Assembly Constituency in the 2003 Election, to be void.
Parties to bear their respective costs.
RP. Appeal allowed. D

t

r