Point of Law: Mere absence of documentary evidence would not dilute the evidentiary value of the oral testimony.

JUDGMENT :

N. Kotiswar Singh, J.

Heard Mr. A.R. Sikdar, learned counsel for the petitioner in both the petitions. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Assistant Solicitor General of India, for respondent No.1 as well as appearing as standing counsel, NRC, for respondent No.6; Mr. N. Pathak, learned special counsel, FT, appearing for respondent Nos.2 and 5; Mr. A.I. Ali, learned standing counsel, ECI, appearing for respondent No.3 and Ms. U. Das, learned Additional Senior Government Advocate, Assam, appearing for respondent No.4.

2. In these petitions, the petitioners have challenged the common order dated 15.02.2019 passed in F.T. Case Nos.103/2017 [Ref. IM(D)T Case No.11076/98] and 104/2017 [Ref. IM(D)T Case No.11074/98] declaring both of them as foreigners.

3. The proceedees in both the petitions, namely, Sahjahan Ali and Khandakar Abdur Rouf, are stated to be two brothers born to Khandakar, resident of Tedhara, under Baghbar police station in Barpeta district. After the reference was made, notices were issued to the petitioners in both the petitions and they duly received the notice and filed their respective written statements. According to the learned counsel for the petitioners, since the petitioners in both the petitions are brothers, they relied on the same set of documents and in fact, the learned Tribunal proceeded to consider the said documents, which are 8(eight) in number and exhibited as Exbts.-A to H as follows:-

Exhibit-A: Certified copy of Electoral Roll of 1966

Exhibit-B: Certified copy of Electoral Roll of 1970

Exhibit-C: Certified copy of Electoral Roll of 1997

Exhibit-D: Certified copy of Electoral Roll of 2005

Exhibit-E: Electoral Photo Identity Card

Exhibit-F: Jamabandi copy

Exhibit-G: Gaonburah Certificate of Tedhara Gaon

Exhibit-H: A self sworn affidavit

4. We will first examine the observations and findings of the learned Tribunal.

5. Learned Tribunal by referring to the written statements and the evidences on record noted that the both the petitioners in their written statements had claimed that they were born and brought up at village Tedhara Pathar, PS-Baghbar, District-the then Kamrup, now Barpeta, Assam. Learned Tribunal also noted that both the proceedees had stated that in the year 1997 both their parents, in their nick names i.e. Khandakar Aklas Uddin and Sahera Khatun were shown as voters of Tedhara under 45 No. Baghbar LAC instead of their correct names Akhlaz Uddin and Saheran Nessa. In the written statements, it was also mentioned that Saheran Nessa and Sahera Khatun are one and the same person. It has been also stated that in the Electoral Photo Identity Card, their mother's name Sahera Khatun has been recorded instead of correct name, Saheran Nessa.

6. Learned Tribunal further observed that both the petitioners had not disclosed their grand-parents' names and also had not mentioned how many brothers and sisters their grand-parents had and how many brothers and sisters their father had. The Tribunal also noted that there is also no mention about the brothers and sisters of both the petitioners. Learned Tribunal also noted that at the time of filing written statements, both the petitioners had not mentioned the date and year of their birth.

7. Learned Tribunal also noted that both the petitioners had examined two witnesses as DW-2 and DW-3 in support of their claim. DW-2 is Saheran Nessa alias Sahera Khatun, wife of Akhlaz Uddin alias Khandakar Akhlaz Uddin, who the petitioners claim to be their mother. DW3 is a Gaonburah.

8. Learned Tribunal also noted that DW-2 stated that the person whose name as Akhlaz Uddin in the voters' lists of 1966 and 1970, is her husband and the name of DW-2 has been recorded as Saheran Nessa, wife of Akhlaz Uddin in the aforesaid voters' lists.

DW-2 further stated that in the year 1997 her name along with her husband Akhlaz Uddin and Sahera Khatun respectively had been recorded instead of their correct names i.e. Akhlaz U