Ujjal Bhuyan, J.

1. Heard Mr. D. Mazumdar, learned Senior counsel assisted by Mr. R. Sharma, learned counsel for the election petitioner and Mr. K. Agarwal, learned Senior counsel assisted by Mr. R. Baruah, learned counsel for respondent No. 1. This petition has been filed under Sections 80 and 81 of the Representation of the People Act, 1951 (in short, the RP Act) seeking a declaration that the election of respondent No. 1 to Assam Legislative Assembly from No. 112 Dhakuakhana (ST) Legislative Assembly Constituency is void as per Sections 98(b) and 100(1)(b) of the RP Act with a further declaration that petitioner is elected from the said constituency having received the maximum number of valid votes following declaration of the election of respondent No. 1 as void.

2. Challenge to the election of respondent No. 1 has been made on the ground of corrupt practice. Respondent No. 1 is alleged to have been involved in bribery as well as booth capturing.

3. As per pleadings in the election petition, Election Commission of India had issued notification for holding election in respect of No. 112 Dhakuakhana (ST) Legislative Assembly Constituency (constituency hereinafter) notifying the following dates:-

(i) Last date for nomination - 17.03.2011,

(ii) Scrutiny of nomination - 18.03.2011,

(iii) Last date for withdrawal of candidature - 21.03.2011,

(iv) Date of poll - 04.04.2011,

(v) Counting of votes - 13.05.2011

4. Petitioner filed his nomination paper for the said constituency as a candidate nominated by the Indian National Congress Party. Respondent No. 1 also filed his nomination paper for the said constituency as a candidate nominated by the Asom Gana Parishad Party. Respondent Nos. 2, 3 and 4 had filed their nomination papers as independent candidates whereas respondent Nos. 5 to 8 had filed their nomination papers for the said constituency as candidates belonging to the SUCI (C), AITC, BJP and CPI(M) political parties respectively.

5. One nomination paper for the said constituency was filed by Shri Ranjit Chintey as an independent candidate. However, Shri Chintey withdrew his nomination paper on 21.03.2011.

6. Nomination papers filed by the petitioner and the respondents were found to be in order and declared to be valid. They were allotted the following election symbols:-

Petitioner - Hand,

Respondent No.1 - Elephant,

Respondent No.2 - Cup and saucer,

Respondent No.3 - Table,

Respondent No.4 - Saw,

Respondent No.5 - Battery torch,

Respondent No.6 - Flower and grass,

Respondent No.7 - Lotus and

Respondent No.8 - hammer, sickle and star.

7. Main contest was between petitioner and respondent No. 1. Petitioner had appointed Shri Lalitya Kumar Das as his election agent while respondent No. 1 had appointed Shri Pradip Chamua as his election agent.

8. As notified, polling was held on 04.04.2011 and counting of votes was held on 13.05.2011. As per final result sheet issued by the Returning Officer of the constituency, total number of valid votes cast was 1,26,803; total number of postal ballots received were 342; total number of votes polled by the petitioner was 56,456; and total number of votes polled by respondent No. 1 was 63,963. Thus, respondent No. 1 having secured 7507 more votes than the petitioner, was declared elected from the said constituency.

9. According to the petitioner, one Shri Ranjit Chintey had filed his nomination paper for the said constituency as an independent candidate. However, respondent No. 1 offered huge amount of money to Shri Chintey to withdraw his candidature. Acting under such promise and offer, Shri Chintey withdrew his candidature. It is alleged that this act of respondent No. 1 amounted to bribery within the meaning of Section 123(1)(A)(a) of the RP Act.

10. Respondent No. 1 made offer and promise to pay huge amount of money to Shri Memud Pagag, son of Shri Maikeswar Pagag, to contest the election as an independent candidate from the said constituency. Acting on such offer and promise, Shri Memud Pagag filed hi