STATE OF PUNJAB

V, HARi SINGH & ANR.

March 21, 1974 [M. Ji. BEG AND R. S. SAllKARIA, JI.]

Indian Peno/ Code-S.302, 307 read wltli S. 34~M11rder-Wh<n t/14 evi. de nee, of eye' witnesses who were relatU to each otlwr a11d tlte victims cot11J he lied pon.

The trial court had convicted the mpondents u/s. 302/34 LP.C. and u/s. 307 /34 1, P.C. for the death of two pmo-a&z, Tho occu~ loot place

~'!"'Ii niibt bot- 18th It !!Ith June, 1969. Tho victims Used to c:ultivale jointly with others. The reopondents and the two •ai.uitled accused pmom -. brodlm who li"'!I in the same villas<. It is said that there was enmity -n the cleccaoed pcnoos and the reopondents.

Tho prosecution. case was that on the nlsht of 18th June 1969, the respoodents with two othen attacked GltZ and as a result G died but Z survived.

lb• trial court bad comk:ltd the respondenta but the High Court ac:qaitted them. .. On appeal by the Slate, the main question was whother Ibo throe al1-d "f"':Witnesses, P, W.3, P, W.4 It P.W.5 who were nlated to each other and the

Vlclims could bo relied upon, When corn>borated by other facts and cin:umstanaa. .

Allowina the appeal, . llEu> :-(I) lt is a principle, common to all criminal appeala by special lea.., that this Court will refrain fmm substitu~ ib own views about the appreciation of "evidence if the judgment of the Hish Court is bued on one of two altematiW> views each of which was reuooably cpcn to the Hish Coun to accept, If however, the High Court's approach is vitiated by eome baalcally erroneous assumptions, or it adopts reuoning which, QD the face of it, is umound, it may become the duty of this Court, to prevent a miscarriage of justice and to interfere with an order whther it be of conviction or of acquittal.

[729F)

(2) In the present case, the trial court had accepted the testimony of 3 oye witnesses, dcspi.te the fact that they are relations of the victims, It has been l'lll'Oltedly held by this Coun that the more fact that witness is related to the

victim could not be a good enoueh ground for rejecting his testimony althouah it mly be a ground for scrutinizing his evidence more ctitically and carefully where facts and circuµlStances disclase that only relations have been produced and othei-s, presumably independent witneeses, who were available, were not produced.

[729 HJ The ordinary presumption is that a witness speaking under an oath ls trothfut unless and until he is shown to be unreliable or untruthful. In any particular respect, witnesses solemnly deposing on oath in the witness boX during atrial upon a grave charge of murder, must be presumed to act with n full seme of responsibility of the consequences of what they state.

It may be that what they say is so very unlikely Of' unreasonable that it is safer not to act , upon it or even to disbelieve them. [730 In the present !'"'e, the evidence of Z who boc~ IJll"'!'lS<ious ue to fatal bloin . bv the assailants, can bo accepted when his OVIdcnce .ts atrongly cmoboraled br medical and other evidence.

Thereforo, the present .... is a lit ca9C wheto this court will intereferc.

CRIMINAL APPELLATE ]UIUSDICTION : Criminal Appeal No. 213 of 1970 ..

ApPeal by special leave from the judgment and order dated the 17th Jiine. t 970 of the' Punjab and Haryana High Court. at Chandigarh in Criminal Appeal No. 2~8 of 1970.

SUPREME COURT REPORTS

[1974] 3 S.C.R.

Harbans Singh, for the appellant.

Nuruddin Ahmed and U. P. Singh, for the respondents.

The Judgment of the Court was delivered by :

BEG, J, The State of Punjab has obtained special leave to appeal agamst the judgment of the High Court of Punjab and ffaryiµla, acquitting the two respondents from charges under Sections 302 and

302/34 Indian Penal Code and under Sections 307 /34 Indian Penal Code.

The Trial Court had convicted the respondents under each of these two sections and sentenced Harl Singh to death under Section 302 Indian Penal Code and Gian Singh to life imprisonment under sections 302/34 l.P.C., and it had sentenced both to six years rigorous imprisonment and to pay a fine of Rs. 2,0~/-, and, in default of pa; yment of fine, to undergo further rigorous imprisonment for two years under Sections 307 /34 I.P.C.

The occurrence which gave rise to the prosecution of the two respondents together with two others, Milkiat Singh and Dalip Singh, who were acquitted by the Trial Court, took place during the night between 18th and 19th June, 1969. The victims, Gian Singh, deceased, and his nephew, Zora Singh, P.W. 3, cultivated lands jointly with Bachan Singh, P.W. 5, his son Mukhtiar Singh, his two brothers Gian Singh and .Sarwan Singh, and, Surjit Singh, P.W. 4, and Jagjit Singh, the brothers of Zora Singh and sons of Sarwan Singh.

All of them also lived together in village Dhandri Kalan.

The respondents and the acquitted accused persons are brothers who also lived in village Dhandr. Kalan in District Ludhiana. It is said that there had been a fight bet ween Hari Singh, respondent, and Gian Singh deceased in

!YJ. ,,.,, cu had been settled by the Panchayat.

In 1969, sometime before the occurrence, another incident is said to have taken place.

Jagjit Singh and Mukhtiar Singh, by show of force, were said to have carried away some "toori' in a cart to their house against the wiibes ot Hari Singh, respondent, and another person in his company.

Undoubtedly, the motive disclosed was not be strong enough for a murderous assault of a rather brutal kind on Gian Singh and Zora Singh.

This, however, is immaterial if the alleged eye-witnesses of the occurrence could be relied upon to establish the prosecution case.

The whole question before the Courts was whethr the three alleged eye witnesses, Zora Singh, P.W. 3, and Surjit Singh, P.W. 4, anJ Bachan Singh, P.W. 5, who are related to each other and the victims, as stated above could be relied upon, when corroborated by other facts and c_ircumstances which may appear in the case, to sustain the conviction.

The prosecution case was that Gian Singh and Zora Singh had gone to their field for watering their sugarcane crop in it on the evening of

18th June, 1969. At about 9 p.m. Bachan Singh, P.W. 5, and Surjit Singh, P.W. 4, are said to have carried _the meals for Gian Singh and .Zora Singh, who were at their field situated about "100 karams"

(nearly JOO paces) away from their tubewell, which was, as is wiuaf, lit up by electric light.

After tliat, tlian Singh and Zora Singh went to sleep a few feet from each other at their tubewell while Bachan Singh and Surjit Singh are said to have stayed oo at the sugarcane

field nearby.

At about mi<J.night, Zora Singh is said to have got up . to urinate, and to have just laid himself down on his cot after urinating when he saw the respondents and Milkiat Singh and Dalip Singh arrive with their wea.P"ns .. , Hari Singh is said to have struck his kirpan on the neck of Gian Singh, deceased, and Milkiat Singh is said to have struck Zora Singh on the right arm with his Gandasa, whereupon Zora Singh raised an alarm. All the four assailants then gave blows to the deceased and Zora Singh who had cried out : "Marditta-Marditta""

Bachan Singh, P.W. 4, and Surjit Singh, P.W. 4, rushed to their aid and alleged having seen the attack and the assailants running away.

They found Zora Singh unconscious when they came near him. Gian Singh and Zora Singh were removed to a Hospital in Ludhiana, where Gian Singh died at 5.45 a.m. The condition of Gian Singh, which was not such as to enable him to make a dying declaration, was described as follows :

"B.P. was not recordable. Pulse 60 /mt. fuble, unconscious, Gasping cynotic. Pupils constricted, Reacting Slugishly to light. There was 8"X4" wound on the left side. of the neck cutting deep to the muscles. The trachea was cut almost through and through and he was breathing through the hole of the trachea.

Hyoid bone was lying exposed in the wound. Could not feel the. left carotid artery. No bleeding was present when patient was brought to the hospital".

Zora Singh who survived had the following injuries :

" 1. An incised wound 3" x t" x 21" on the inner side of left hand and was cutting the 5th and 4th matacarpals completely. ·

2. Incised wound t' x r x flesh deep on thl inner side of left wrist.

3. Incised wound 5' x l' x 2' deep on the outer side of left hand and was chopping oil the thumb completely from the hand.

4. Incised wound 6" x :I:' x flesh deep back of left forearm lower part.

5. Incised wound 4" x t• x 2" deep on the right side of the face and the middle of the lower part of the nose and was cutting it and the right side of the upper jaw partially.

6. Inside wound 3"X t"X 1 t" deep on the upper part of the back of right side of the neck and was cutting the spine bone partially.

7. Incised wound 4' x l "x 3' deep on the back of riht

elbow and was cutting the ulna bone completely and the forearm was hanging just with a flesh."

H A First Information Report of this occurrence was lodged at 5.15 a.m. at Police Station Sadar, Ludhiana, at a distance of 7 miles frQm village. Dhandri Kalan, disclosing. offences punishable under. Sections 307 and 326 Indian Penal Code only as Gian Singh was still alive at

7.28

SUPREMJ; COURT , REPORTS

[1974) 3 S.C.R.

that time. It was stated in the F.I.R. that the respondents were recognised and that two other unknown assailants, who were young Sikhs could be identified if produced befcte the witnesses. ' .

Surji~ Singh, P.W. 4, the maker of the F.I.R., upon cross-examinahon derued that he had been tutored to state that he could not identify the two of the assailants as they' had their backs towards him. He had stated in the F.I.R. that they were youngmen although Milkiat Singh, aged 53, and Dalip Singh, aged 46, years were not so young. He had '.'ISO stated there that he could identify the two youngmen thereby implymg that he had seen them properly. He had stated in his evidence that one or two bighas of sugarcane can be irrigated in an hour by their Tubewell. Watering was said to have commenced at' p.m. and Zora Singh, P.W. 3, had stated that only 4 bighas of the field had to be watered. The High Court, therefore, did not think it likely that either Bachan Singh or Surjit Singh would still remain at the Sugarcane field or bo awake at the time when the occurrence took place. Moreover, the High Court thought that both Bachan Singh and Surjit Singh .were too far away, at abount 100 karams, to be able to reach in time to see the . occurrence.

Bachan Sitlgh, P.W.5, had supported the statement of Surjit Singh, P. W.4, that he ran up to help the attacked persons after hearing Zora Singh Shouting; "Marditta-Marditta". He said 'that he saw the assailants from a distance of 15 karams. He also said that Hari Singh was using his kirpan to attack and that the other assailants had used their gandasas. On cross-examination, this witness also stated that he could not recognise the companions of Hari Sngh and Gian Singh as they had their backs towards him, although it was proved that he had stated be• fore the Police that the unidentified persons were young Sikhs with Gandasas whom he could identify if produced before him.

The High Court had found some difficulty in getting over the statement of Zora Singh, P.W. 3. It had observed that Zora Singh, aged

oruy about 16 years, would have tried to run away as soon as he saw four assailants by electric light attacking Gian Singh only at a distance of 10 feet, if he was really awak~. It had also opened that he would have cried out earlier than the moment of time when he received tho . injury on his right arm if he was .actually awake when the assault on ·

Gian Singh, deceased, took place. It was not disposed to rely upon the statement of Zora Singh that he was lying awake because he had. got up to urinate 5 minutes before the occurrence as this appeared to it to be an improvement upon his previous statement. Zora Smgh, on crossexamination, had explained that he had not stated this earlier as he was not questioned about it. The High Court had doubted the veracity of Z.Ora Singh because he disclaimed knowledge that Milkiat Singh and Dalip Singh were employed in the Air-Force although their fields ad, jcined his own fields. The High Court thought that it was likely that Zora Singh would have become unconscious after receiving injuries before he could recognise his assailants. The High Court had also attached importance to the fact that no special report of the occurrence was proved to have been sent to a Magistrate. It has considered the explanation that this was due to the fact that the F.I.R. disclosed only offences punishable under Sections 307 and 326 I.P.C. to be uffi•.

c •

t .-...

PUNJAB 1'. HARI SINGH (Beg, /.) 729

cient to explain this omission. After relying upon the observations of this Court ·; n Sarwan Singh Rattan Singh Vs. State of Punjab(') that . the prci; ecution must traverse the whole gap between "what may be

true" and "what must be true" before a conviction could be recorded in a crimipal the High Court had given the respondents the benefit of doubt and acquitted them.

The Trial Court, on the other hand, which had the additional advantage of seeing the witnes$es depose in the witness box, was impressed by the evidence of the three' alleged eye witnesses and had convicted the respondents. It bad not relied upon the alleged recoveries by .Hardit Singh, SuMnspector, P.W.8, of a kirpan on 28th June, 1969, from a straw-bin at a tube well at the instance of Hari Singh and a gandasa on the roof of a tubewell at the instance of Gian "Singh. Both the weapons were proved tCl be stained with human blood. As the recovery was shown to have taken place 4 days after the arrest of the respondents .the Trial Court thought that it must have resulted from the nse of 3rd

degree methods during the interrogation of the accused. The Trial Court had also considered it unsafe tQ rely upon the sole testimony tf.. the Investigating Officer on this question when other witnesses of the recovery were not produced for some unexplained reason. The Trial C-Ourt, had, however, relied upon the circumstance that the respc,11dents could not be found when searched in their village and could only be arrested several days later.

The question raised before us is : should we, even if we do not ootirely agree with the reasouing of the High Court, substitute our own views and reverse an order of acquittal by it ? It is enough to refer to the State of Madras Vs. A. V<Udyanatha Tyer(') to ppint out that this Court's power of interference under Article 136 of the Constitution with Judgments of acquittal is not exercised on principles which are different from those adopted by it in dealing with convictions. It is a principle, common to all criminal appeals by special leave, that this Court will refrain from substituting its own views about the appreciation of evideo,:e if the iudgment of the Hig" Couct is based on on of two alternative views each of which was reasonably open to the High Court to accept. If. however, the High Court's aoproach is vitiated by

some basically errcneous apparent assumption or it adopts reasonisg which, on the face of it, is UllllOUlld, it may become the duty of this Court, to prevent a miscarriage of justice, to interfere with an order whether it by of conviction or o'f acquittal.

In the case before us, the Trial Court, which had the additional advantage of seein~ the witn:sses-denose in the witnl"s~ box .. 1'-"rJ acceoted the testimony of the three eye witnesses, despite the fact that they are relations of the victims. lt has been repeatedly held by this Cvmt that the mere fact that a witness is related to the victim could not be a good enough ground for rejecting his testimony although it may be a ground for scrutinizing his evidence more critically and carefully wlier• facts and circumstances disclose that only relations have been produced and others, presumably independent witnesses, who were available, were not produced.. In the instant case, thete is no evidence that anyone

(I) AIR 1957 SC 637.

(2) 195! SCR 580

SUPREME COURT REPORTS i1974] 3 S.C.il.

besides the witnesses produced had actually witnessed the attack upon

Gian Singh and Zora Singh.

The High Court's reasons for doubting the correctness of some of the statements of Surjit Singh, P.W. 4, and Bachan Singh; P.W. S, as, for instance, that they had actually failed to recognise Milkiat Singh and Dalip Singh because they had their backs towards them when these very witnesses had asserted before the police that the two other participants were youngmen who could be identified by them, if produeed before them, are quite sound and reasonable. If, however, a false implieation was really intended and the F.I.R. was the result of some conspiracy, there was no reason to omit the names cf Milkiat Singh and Dalip Singh, the two brothers of the respondents, fiom the F.I.R. The prosecution had an explanation for this omission. This was. that 2:ora

Singh, who had seen and recognised these two accused persons had .become unconscious before their names could be communicated to Surjit Singh. The High Court had itself accepted the evidence that Zora Singh had ac_tually become unconscious. In fact, it had gone to the extent of holding that he must have become unconscious even before he

recognised any of the assailants. On the last mentioned point, we certainly do not find it possible to accept the view adopted .by the High Court. ·

It is in .dealing with the evidence of Zora Singh, P.W. 3, that the High Court seems to us to have adopted a patently erroneous approach and to have given grounds which do not appear to us to be reasonably

sll6tainable. The High Court seems to have assumed that Zora Singh must have invented the stclry that he had got up to urinate so that he may pose as an eye witness of the occurrence.

The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. The High Court, reversing this approach, seems to us to have assumed that witnesses !!re untruthful unless it is proved that they are telling the truth. Witnesses, solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumecj to act with a full sense of responsibility of the consequences of what they state. It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer not to act upon it or even to disbelieve them. The High Court had no doubt tried to show that this was the position with regard to the whole of the testimony of Zora Singh. But, we do not think that it was successful.

It is true that the statement of a witness that he had got up to urinate just before a murder was committed, so that he could witness the murder, looks suspicious.

But, the statement .is not, for that reason n<lCessarily untrue. Again, if, as the High Court believed, both Gian Singh and Zora Singh were attacked almost simultaneously, its view. that Zora Sincl! would have got up and run away or shouted earlier than he was attacked had he been really awake, is unreasonable.

Let us, however, assume, for the sake cif argument, that the High Court's guess is correct that Zora Singh was actually asleep when the

.PUNJAB v. HAltl. SINGH (Beg, /.) 731

au.ct upon Gian Singh and then 1.ora Singh began. Even thea it wO!lld be .quite. imreasonable to .believe and. hold, as the High Court

did, that Zora Singh must have become unconscious before he c:oald ace and recognise his assailants. There was the light of the electricity at the tubewcll where Zora Singh lay on his bed whether a.<leep or Zora Singh must hav!' nccessarily got up at least when he was. strul:k on the arm. He could not have avoided seeing and then recognising his assailants, whom be knew very well, before he became unconscious. His account, that he was strucldirst on the arm and then he: . gjcd out, is corroborated by the fact that other injuries indicate that his face and jaw were ailllel\ at .and struck probably in an attempt to silence him. The injuries were of such a nature that he must have .been awakened, shouted, writhed in pain, and seen the assailants before

be became unconscious.

The absolutely unacceptable guess work. bldulged in by the High Court, that Zora Singh must have become

unconscious before be could see and recognise his assailants, is utterly un'IUpported by evidence and seems very unreasonable.

Even if other parts of his evidence are, for some reason, not accepted, Zora Siogh's statement that he saw and recognised assailants.

before he became unconscious cannot be held to be capable of arousing doubts. There is no evidence that the assailants covered him U!> with a blanket or a cloth, so as to disable him from seeing them, before attacking him.

H we accept this part of th.e evidence of Zora Singh. as we think we must, since it is so strongly corroborated by the medical evidence and there is nothing on record which conflicts with this inference, it becQmes evident that be musi have shouted for help. If thai be so, it is difficult to understand why Surjit Singh and Bachan Singh would. not go to his rescue as they naturally would on hearing shouts even if they were at some distance. We think that, judging from the number of injuries on the two victims, the incident must have lasted long enoguh to enable Surjit Singh, P.W. 4, and Bachan Singh, P.W. 5, to rush :towards the scene of occurrence and to see and _recognise aneast the escaping assailants. It is possible that they may have exaggerated in stating that they actually saw the attack on both the victims. But, that would itot be enough to discard the whole of their

testimony on the ground that they were not likely to be present at their field nearby at the time of the attack. There is no evidence to suggest that they were elsewl)ere at the time.

Indeed, the fact that t_hey ai:ang\ld for the transport of the victims to a hospital' 10 Ludhmna and took them there before day-break shows that thy

were there to be able to do all this. We do not think that the reasons given for suspecting their presence near enough from the tubewell, at their sqgarcane field, are strong enough to make it incredible that they should come to the help of the two atta.:ked persons and to sec at least the escaping assailants out of whom they recognised two.

As human testimony, resulting from widely different powers of observation and 4'scription, is necessarily faulty and even truthful Witl!eSSes.not infrequently exaggerate or imagine or tell half truths the Courts must try to extract' and separate the hard core of..truth from the whole evidence.

This is what is meant by the proverbial saying

SUPREME CQURT .REPORTS [l.974] 3 S.C.R.

that Courts must separate ."the chaff from the grain" .. lf, after consi d<:ring the who~ ass of evidence, a residue. of acceptable truth . is

esuious11"l by .the prosecuuon beyond. any reasonable doubt the Courts are hound to give effect to the result flowing from it and not throw it overboard on purely hypothetical and conjectural grounds. In so far as the grounds given for rejecting the evidence of Zora Singh appear

to us lo be patc_ntly unreasonable and highly conjectural, we think .that

th~. case before us calls. for interference by this Court.. That evidence, as we have already pointed .out, is corroborated by medical evideru; c as well as by the statements of Surjit Singh and Bachan Singh. Hence, although, the statements of Bachan Singh and Surjit Singh, taken by themselves, may not have been enough to warrant the conviction of the

respondents, yet, when the evidence of Zora Singh, strongly corroborated by medical vidcnce is there, we think that the statements of Surjit Singh & Bachan Singh could be used to support the conclusion thus reached without going to the extent of holding that Surjit Singh and Bachan Singh must be wholly believed before their evidence could serve any useful purpose at all as the High Court seems to have erroneously thought. Indeed, it is very difficult to find a witness whose evidence is so flawless that it has to be wholly, completely and, unqualifiedly accepted. We think that the High Court had, without saying so, ignored the principle repeatedly laid down by this Court in appraising evidence, that Courts do not, in this country, act on the maxim : "fa/sus i11 uoo fa/sus ill omnibus". In cciisidering the effect of each allegation proved to be incorrect or the likelihood of its being true or untrue, we have to view it in the lit of a whole setting or concatenation of facts in each particular case.

There may be reasons for doubting the worth af the evidence of recovery from the respondents, but, that docs not mean that t!le evidence given !1y Hardit Singh, S.L, P.W.8, relating to recoveries, is necessarily false so that the investigation itself is tainted. Similarly, the mere fact that, after the lodging of the F.I.R., the necessary precaution of sending the special report to a Magistrate speedily was not shown by the prosecution to have been obscrve4 does not mean that the whole prosecution case is false or unacceptable. On the other hand, the fact that the F.l.R. discloses only offences punishable under Sections 307 and 326 I.P.C. indicates that it must have been lodged before

6. a.m. In any event, before the Inquest report on the morning of 19-6-1969, the police had before it the prosecution version contained in the F.l.R. to which a reference is made in the Inquest report. The statements of Bachan Singh~ and Surjit Singh were also recorded before that.

Therefore, the alleged suspected delay in the lodging of the F. I. R. or in sending a special report to a Magistrate do not, on the facts of this case, .indicate an attempt to conspire and fabricate. Indeed, if this was so, as already observed, one would have expected to find the names of Milkiat Singh and. Dalip Singh also in the F.I.R. instead of a description given of the unidentified youngmen which did not fit these two acquitted accused persons who were. therefore, given the benefit of doubt. This feature of the evidence indicates that the names of these two accused were introduced in the ease ouly after

Zora Singh had regained consciousness and revealed them as the prosecution alleged. Hence, it is. likely that the F.I.R. must have been made soon enough to contain the earliest version before Zora Singh 's version could get into it after he regained consciouness.

We think that the High Court had missed the core of truth in the case and had unjustifiably rejected thi; prosecution case which was strong enough on the statement of Zora Singh alone corroborated by medical evidence. ILl!ad, we think, 111ade the error of throwing away the prosecution case, without attempting to separate the chaff from the grain on the wrong ass1111\1>tion. that the two were inseparable here.

We, therefore, set aside the order of acquittal by the High Court and convict the respondents for the offences with which they were charged.

As, however; the occurrence took place several years ago, we refrain from aw~ a death sentence in this case. We sentence both llari Siqgh respondent u/s 302 I.P.C. and Gian Singh respondent sons of Arjan Singh to life imprisonment under Sections 302/34 I.P.C. We

also sentence each of them to six years rigorous imprisonment and to pay a fine of Rs. 2,000/" each, and, in default of payment of linel. to rigotous imprisonment for a further period of two years under ~

tions 307/34 I.P.C. The seiltenees awarded shall run concurrently.

s.c.

Appeal Allowed.

STATE OF PUNJAB

HARi SINGH & ANR

March 21, 1974

M. Ji. BEG

S.302, 307

S. 34

s. 302

s. 307

Harbans Singh

Nuruddin Ahmed

U. P. Singh

BEG

State of Punjab

Sections 302 and

302

Indian Penal Code

Sections 307

Indian Penal Code

Harl Singh

Section 302

Indian Penal Code

Gian Singh

sections 302

Sections 307

I.P.C

Milkiat Singh

Dalip Singh

18th and 19th June, 1969

Zora Singh

Bachan Singh

Mukhtiar Singh

.Sarwan Singh

Surjit Singh

Jagjit Singh

Zora Singh

Sarwan Singh

Dhandri Kalan

Ludhiana

Hari Singh

Jagjit Singh

18th June, 1969

.Zora Singh

tlian Singh

Bachan Singh

Surjit Singh

Hari Singh

Marditta-Marditta

Sections 307 and 326

Indian Penal Code

Surji~ Singh

Bachan Sitlgh

Hari Sngh

Gandasas

Zora Smgh

Z.Ora Singh

Sections 307 and 326

I.P.C

HARI SINGH

.Hardit Singh

28th June, 1969

Gian "Singh

Article 136

AIR 1957 SC 637

Singh

Zora Sincl

1.ora Singh

Zora Siogh

Hardit Singh

Sections 307 and 326

I.P.C

Bachan Singh~

llari Siqgh

s 302

I.P.C

Gian Singh

Arjan Singh

Sections 302

I.P.C

I.P.C


NAWABAU

THE STATE OF utTAR PRADESH

March 22, 1~74 . (H. R. KHANNA AND P. K. GoSWAMI, 1J.J

lnMtm .l'enal Codo, m:. 302 r<atl wit/1 stc. 14? IJ'.C.-No vicarious liability uaku t!M person is • mtm!Nr of the unlawful assembly al tht time of the camml.rllon of oD•nt:•.

ni;.a-Uant and six othera were inter a/la, convicted for of!ence u/s 302 read With .... 14? ol the I.P.C. There was long SlalldinJ. enmity belwun -- and Ibo deceased and the parties were involved in civil and crimjoal litlptioo. 11 Wiii allesod tbat the accused attacked tbe deceased with latbis and thereafter carrled him to the houoo of one Mohd. Shafi and locked tbe door from inside.

When the police arrived the door was broken open and only six accused were fotmcl there but nol tbe appellant. Tbe body of tbe deceased was also reeowred m tbo house. The Sessions u<f80 convicted all the accused includinJ the llllllOllazil for of!eoco u/s 302 read with Sec. 14? of the J.P.C. and Ibo conVJctioo aDa - were upheld by the High Court. .

Allowing tbo appeal,

HBu> :-(I) Thal from the evidence ii can bo said that tbe appellant was inside tbe house of Mohd. Shafi only for a short time and thereafter left that .Place. 'lberc no evidence on record to show that the deceased was stran~· latm before the appellant left tbe house. There is nothing to rule out the Jl(l8Sibil1ty ol the deceased lµiving been strangulated after the appellant left the house and when ho bad ceased to be ::t member of. the unlawful assembly. No liability can

be futcned upon the appellant for anything done by the members of the unlawful wembly nfter he had left the house and had ceased to be the memb:r of the unlawful assembly.

[736G-HJ

_. (II) In the prosecution under section 149 l.P.C., it is incumbent upon the prosecution to show that the pcon concerned was a member of the unlawful asaembly at the time of the commission of the offence. No vicarfQUs liability ........ _can be fastened under section 149 I.P.C. if the person concerned goes away and ceases to be a member of the unlawful assembly before the commission of the offence and subsequently the offence is committed by Other members of the unlawful assembly.

[737A-C] ·

Cll.IMINAL APPELLATE JURISDICTION : Criminal Appeal No. 20 of 1971..

AplJCal bv Special Leave fmm the Judgment and Order dated lhe 26th Au211st. 1970 o! the Allabab<{j High Court (Lucknow Bench l in Criminal Appeal No. 8 of 1968. ·

B .. P. Sin11h. for the appellant.

D. P. Yniyal, R. Bai1a and O. P. Rana, for the respondent.

The Judgment of the Court was delivered by

KHANNA, J.-Nawab Ali and six others including bis two sons Naim Khan and Azim Khan were convicted by learned Sessions Judge . Bahraich under section 302 read with section 149 Indian Penal code. section 323 read wiib section 149, Indian Penal Code, section 147, section 342 and section 364 Indian Penal Code. Each of the seven accused was sentenced to undergo imprisonment for life for the offence

NAWAB ALI v. U.P. STATE (Khanna,/.) 735

A under section 302 read with section 149 Indian Penal Code. Lesser sentences qf imprisonment were awarded for the other offences.

Appeal filed by the seven accused was .dismissed by the Allahabad

High Court. Nawab Ali alone then came up in appeal to this Court by special leave. The leave was, however, restricted to the question of conviction of the appelalnt for the offence under section 302 read with section 149 Indian Penal Code. ll

_, E

The case of the prosecution is that there wa.• long standing enmity between the seven accused, . wbo are related to each other,

and Abdul HamiJ Khan.

Disp_utes had ansen between •.ne parties in connection with some land belonging to Sarju Devi and the parties tml been involved in civil and crimmal litigation.

Abdul Hamid Khan deceased and tbe accused belong to viJlagc Gulalpurwa.

On the evening of June 17, 1967, it is stated, Abdul Hamid Khan went to the house of his co-villager liahao Khan

(PW 5), because the two wanted to have a talk in connection with a case pendin2 before the Commissioner.

Abdul Hamid Khan accompanied by Puttan Khan (PW 7) left the house of Bahao Khan :ct about 10 p.m. Wben the two reached near the house of Siddiq, the s.:ven accused armed with iathis emerged and attacked Atxlul Hamid Khan and his companion. Puttan Khan ran away and, while doing so. raised alarm. Abdul Hainid Khan was given lathi blows and was apprehended.

Th<:. accuse'tl then lifted Abdul Hamid Khan and carried him to the house dI Mohd. Shafi accused.

Alarm raised by Abdul Hamid Khan and Puttan Khan attracted Maiku 1'han tPW U. Nasir Khan (PW 3), Hafeezulla (PW 4J and some others including Rahim Khan. Rahim Khan tried to intervene but

i1e too was J:iven lathi blows.

Aftcr taking Abdul Hamid Khan inside the house of Mohd. Shafi, the accused closed the de.Qr of the

house. Attempt was made by those present to get the door of the house opened.

Six of the accused then emerged from the house armed with lathis and threatened those present to go away and that other;>ise they too would be assaulte\I. The accused thereafter went back to the house and closed the door. . 1'hosc present outsi'<k continued to stay there.

Maiku Khan (PW 1l, who is nephew of Abdul Hamid Khan, in the meantime, rushed to his h{IUSc and from there proceeded on his cycle to police station Nanpara, at a distance of three miles from the

pl= of occurrence.

Report l,(a I was lodged at the police station by Maiku Khan at l I.05 p.m.

Inspector Y ash want Singh accompanied by some constables immediatelv proceeded to the place of qccurrencc and arrived there about.half an hour after mid-night. The Juspector found a number uf person present outside the house of Mohd. S>1ali.

The door of the house of Mohd. Shafi .had .been chained from outside a'1!d rhr motbrr of Mohd. Shafi was sitting there. The Inspector got the door opened.

On going inside. the Inspector fouml th~ dead body ,, r Abdul Hamid Khan lving in the verandah of tbc house.

Six of.

~-LS4SupCl/75

SUPRl!ME COURT Rl!PORTS

[1974] 3 S.C.R.

the aa; llSW were Present inside the house.

Nawab Ali appellant A was. however, not present there.

The case of the prosecution further is that Nawab Ali had slipped awav Jt the time the accused hat! emerged out of the house. 'fba

ix uccased present inside the house were taken into custody.

On lhe foJlowinJ? morclug the .InsP.Cctor prepared the inquest report and sent the dead bodv to the mortuary.

Post mortem examination on B the dead body was performed by Dr. J. B. Singh at Bahraich on Jun• lR, 1967 at 3 p.m.

Nawab Ali appellant surrendered himself in Conrt on June 23,

1967. He was thereafter put under arrest.

At the trial Nawab Ali appellant, with whom we are concerned, denied the prosecution allegations about his complicity and staled C that he had been falsely involved in this case because of enmity with Puttau Khan.

The trial court and the High Court accepted the prosecution case and convicted the accused as above.

It has not been disputed before us that Abdul Harni<I Khan was the victim of a murderous assault. Dr. J. B. Singh, who performed the post mortem examination on the dead body of the deceased, found IO iniuries caused with blunt weapon on the body.

The doctor found that the brain, larynx, .trachea, lungs, intestine, pancrea>. snlcen and kidney were c:onges_ted. Rings of the tmchca and hyoiJ bon,1 were fractured.

Blood was found in the tissues of the neck.

Death wa; due t-0 aspbvxia as a result of strangulation of the neck.

The short question which arises for determination in this appeal is whethu the appellant is guilty of the offence under section 30.2 read with section 149 Indian Penal C<ide.

So far as this question is cc1tcemed, we find that it is in the evidence of Nasir Khan (PW 3) that when he and others rushed to the house of Mohd. Shafi on hearing alarm, all the accused except ROuf came out of the house armed with !othis and threatened those present to go awav.

Five out of the six accused who had come out then went inside the house Nawab

Ali, howver, did not go inside the house.

Nasir Khan and others present there then surroundctl the house of Mohd.

Shafi ~1d umainod there ti!! the arrival of the t>Olicc.

The Police Inspector. wl•o got the l:loor of the hou<e 01>cned, found only six of the accused

present there. The appellant was not among those six accused. It can therefore, be said that the appellant was inside the house of Mohd. Shafi only for a very short time and thereafter he left that place.

There is no ev'dencc on t'c record to show iat Abdul Hamid Khan was strangulated before Nawab Ali "ppcllant left the house of Mohd. Shafi.

Indeed. there is nothing to rnlo out tho possibility of Abdul Hamid Khan having been strangula:cil uft.cr Nawab Ali had left the house of Mohd. Shafi and had thu~ ceased lo 1". a member of the unlawful assembly, No liabilitv, in our opinion. {:an he fastened upon Nawah Ali for anything done by the members of the unlawful assembly after he had left the house of

!<AWAD ALI v. U.P. STATE (Kha1111a, /.) 737

Mohd. Shafi and had thus ceased to be a member of the unlawful \ asse.nbly.

Accordin~ to section 149 InUian Penal Code, if an offence is committed by any member of an unlawful assembly in prosecution o{ the comm.on object of that assembly, or such as the members of tlm assembl.Y knew to be likely to be committed in prosecution ot that object, every pets<.111 who, at the time of the committing o[ that offence, is a member of the same assembly, is guilty of that olience.

It is, therefore, inC'!!llbent upon the prosecution to show that tl1e person concerned was_ a member of the unlawful assembly at the time of the ccmmission of the offence. If the person con ccrned oes away and ceases to he a member oI the unlawful assembly before the commission of the offence, no vicarious liability

can oc fastened up01i him under section 14(} Indian P0nal Code because of any subsequent aq done by the other members of the

unlawfal assembly.

The c()nviction of NawaJ:> Ali appellant for tl1e >.lifencc under section 302 reacj with section 149 lndbn Penal Code in the circumstances cannot be held to be well found. We, therefore,. accept the appeal of Nawab Ali to the extent of setting aside hi' c0nviction under section 302 read with section 149 Jndiaif Pciwl Code. Ifo is acquitted on that score.

S.B.W.

AppeQ/ allowed.

THE STATE OF utTAR PRADESH

1~74 . (H. R. KHANNA

P. K. GoSWAMI

s 302

I.P.C

Mohd. Shafi

s 302

Sec. 14

section 149

section 149

I.P.C

D. P. Yniyal

R. Bai1a

O. P. Rana

KHANNA

Nawab Ali

Naim Khan

Azim Khan

section 302

section 149

Indian Penal code

section 323

section 149

Indian Penal Code

section 147

section 342

section 364

Indian Penal Code

section 302

section 149

Indian Penal Code

Allahabad

High Court

Nawab Ali

section 302

section 149

Indian Penal Code

Abdul HamiJ Khan

Sarju Devi

Abdul Hamid Khan

June 17, 1967

Abdul Hamid Khan

liahao Khan

Abdul Hamid Khan

Puttan Khan

Bahao Khan

Siddiq

Atxlul Hamid Khan

Puttan Khan

Abdul Hainid Khan

Maiku

U. Nasir Khan

Hafeezulla

Rahim Khan

Rahim Khan

Maiku Khan

Nanpara

Maiku Khan

Y ash want Singh

Mohd. S>1ali

Nawab Ali

J. B. Singh

Conrt

June 23,

1967

Nawab Ali appellant

Puttau Khan

Abdul Harni<I Khan

section 30

section 149

Nasir Khan

Nawab

Ali

Nasir Khan

Mohd.

Shafi

Nawah Ali

Mohd. Shafi

section 149

InUian Penal Code

NawaJ

section 302

section 149

Penal Code

section 302

section 149

Jndiaif Pciwl Code


j 738

MOHD. YUNUS SALEEM v.

SHIV KUMAR SHAS1RI AND OTHERS.

March 25, 1974

(P. N. BHAGWATI AND P. K. ClosWAMI, 11.]

Rcvr1:sentah_"o11the, Pople1-ct (43 of 1951), Ss. 30, 116--A and 123(1) (A)(a)-Elect1on ·,_, omm1ss1oner if he can alter .date of Poll-Appreciation of evidence by Supre111e Court-Bribe for witlrdrawal after the date fixed for witltdrawal-lf corrupt practice.

A parliamentary nstituency from which election to Lok Sabha took place 1n March 1971 consisted of five assembly constituencies.

The polling at two of them was scheduled to take place on March 1, and at the other three on March 3. 1971. ISth March. 1971 was fixed as the last day for the completion of tho election. The Polling at the first two constituencies took place on Marth

I. 19_71. but. or: ¥arch 2. there was a communal riot as a result of which, the Election Comm.ISS1oner pastponed the poll at the other three constituencies from March 3 to March 9.

After the polling took place the first respondent was ded~ elected.

The appellant filed an election petition challenging the clecti0-!1 of the first respondent alleging several corrupt practices against him, one of which was that on 6th March. tho second respondent, who was one of the candidates. was induced to withdraw from the contest by the first respondent offering to reconunend him to a seat in the legislative council and by a financier offering him a large sum of money; and that tho second respondent, though he declined the offers, did. in fact, withdraw. He also contondcd that the Election ('ommissioner had no power to alter tho date of Poll at the remaining constituencies. Tho election petition was dismissed by tho High Court.

Jn appeal to this Court, tho firnt respondent raised the contention that even if tho facts relating to tho offers were established,, the first respandent would not be guilty of the corrupt practice under s. 123(1)(A)(a), because, the with drawal of the 2nd respondent was after the date fixed for withdrawal from being a candidate.

Dismissing the appeal to this Court.

HELD .(1) The Election Coi; nmissioner had power to alter the date of the poll from 3rd Maren to 9th March in the remaining constituencies. Secs. 57 & 58 could not be invoked by Election Commissioner for this purpose, because they are applicable only in the circumstances specifiod and in the manner provided, in those sections and s. 153. on which the High Court relied, is also F not applicable, because it in terms provides only for extending the timt ftN co1nplcfion of election and not for altering the date of the poH. But s. 30 of the _Repre6entation of the People Act. read with s. 21 of the General Clauses Act gives the necessary power to the Election Commissioner to a1ter the dalt" of the poll.

1.742H; 743F-H; 744C.E) .(2) The amendment of the date of the poll gets en.grafted in the original form no. 1 in pursuanc.o of the subsequent notification made in valid exercise of the power under s. 30 of the Representation of the People Act read \vilh G s. 21 of the General Clauses Act. and therefore, a fresh notification of the date under r.3 of the Conduct of Election Rules. in the requisite form, is not necessary.

[744EG)

(3) If the facts regarding the offers to the second respondent had been established it v:oold amount to corrupt practice within the meaning of s. 123(1) (A)(a) of the Representatin of the eople Act. (a1 Bribery to induce a person to withdraw from being a candidate at an election amoun!S to cor!Ul't practice within the meaning of. the sub-section. It cannot said that !lt!lCC H 1he time for withdrawal of candidature fixed for that purpose in the. appropnatc notification had .aJready expired in this case there coul~ be no. withdrawal of c:111didature after the date.

When s. 123(1)(A){a) speaks of wtthdf!'Wal fro'!' \\being a candidate it is not limited to a candidate who has been validly nom1c

nted and who hs withdraw!\ ea.lier according to law.

The expression "to withdraw from being a Candidate cnnnot be given a restricted meaning and confi!led .to the stage where law permits a cindidate to withdraw from thi.:

lection. For the prpose of the section the words are of wide amplitude to mclude subsequent \vtthdrawal even at the last stage prior to tho poll

(746B

747C] . •

. <? The omiss!on of he. words "retire from contest" from the section as

t _ong1na1ly_ stood is, not s1.gn1ficant, because the dictionary n1eaning of the "''Ord

withdraw' includes to retire from the field or battle or any contest' and it is because the words 'retire from contest' .have become unnecessary '•bat they were advisedly deleted by the legislature.

(746G~H] •

(c) Si11ce purity of elections is the most important object of the Act. a 11arrow meaning to the v.ord "withdraw'' to refer only to lesal withdrawal under

section 37 \\'otdd defeat the very aim.

We have therefore, to give n\Cllning lo the word "withdraw" keeping in mind the object and scheme of the Act with a vie\'.' to effe.ctuate the intention of the legislature to ensure purity in elections; else there will be an absurd poition where actual withdrawal after the time limit by taking bribe: will be free from the vice of corrupt pfacticC" whereas that prior 1.o it \I/ill not be so. Such an intention cannot be attributed to the legislature from deletion of the words ••retire from contest". The worJ .. withdraw'' is. :omprehensive enough to also connote "retir~ from contc:>l".

[747C-FJ

(4j On the c\'idence, however, it could not be held that any com1; it practice had been proved to have been conunitted by the first respondent under s. 123(1) to (4} of the Act. In the matter of appreciation of oral testimo11y in an election di., putc this Court, in an appeal under s. l 16A, must ha\•e COn .vincing and clinching reasons to take a contrary view from that of the High rCol, lrt. It is not enough that. another view is merely possible on the oral l:!vidence.

Strict proof of the allegations is called for and the High Court ha<> :in ihe present case rightly declined to accept the oral evidence of the appCllant's -side and rightly preferred that on the respondeI).t's side. [753A-EJ

C1v11, APPELLATE JuRrsn1cT10N : Civil Appeal No. 282 of 1\17'.!.

From the judgment and order dated the 21st December, 1971, of 1he Allahabad High Court in Election Petition No. 6 of 1.971,

A. Subba Rao and J.B. Dadacha11ji, for the appcllan(

llardyal Hardy, S. S. Khanduja and S. K. Dhingra, for respondent No. 1.

L. N. Si11Jza,, Solicitor General of India and M. N. Shroff, for the respondent no. 2.

The Judgment of the Court was delivered by

Gosw, AMI, J. This election appeal under section 116A of the Re presentation cf the People Act, 1951 (briefly the Act) by the appellant, Mohd. Yunus Saleem, the defeated Congress (R) candidate, is against the judgment of the Allahabad High Court wherein he challenges the election of the B. K.. D. candidate, Shiv Kumar Shastri .(Respondent No. 1) to the Lok Sabha from the 76 Aligarh Parliamentary constituency in the general elections he)d in fviarch 1971- .This constituency consists of five Assembly .C<Jnstituenc1es, namely, 376- Aligarh, 377-Koil, 378-Jglas, 379-Khrur and 380-Chandaus. There

were seven candidates on the run for the election from this coristi- A tuency. The poll was scheduled to take place in Aligarh and Koil on.

March 1,· 1971 and in Iglas, Khair and Chandaus o.n March 3, 1971.

The polling in Aligarh and Koil was completed peacefully on March

I, 1971 and the appellant obtained the highest number of votes as will appear from the chart giycn below ·

Sarra Shri

Amar Singh

Jagdish Gandhi

Pooran Singh

l\Ialan

~Iohd. Yunus

Saleem

Virpal Singh

Shiv Kuniar

Shastri

Saheb Singh

367 City

18,385

44,422

4,719

S58

377 Koil

.559

l,~91

4,165

25,228

1,240

16,260

3,170

378 Jglas

17,134

1,026

42,281

1,653

379 380 Khair Chandau'i Total

1,103

19,372

1,254

53,240

1,671

868'

3,995

4,937

23,583

18,030 124, l 86

1,320 5,462

43,012 180,313

3,076 6,958

On March 2, 1971 a communal riot betwen Hindus .and Muslims took place in Aligarh city and as a result of this the Election Commission ou receipt of reports of th~ local authorities at Aligarh postponed the poll in the reniainining segments from Marc!i 3, 1971 to E

Marc1" 9, 1971. As wilWippear from the abc!Ve chart, during the poll this time on March 9, 1971, the first respon'dent obtained a very high percentage of votes with the result that he was decli'red elected. The 2nd respondent, although a Samyukt Socialist Party candidate (SSP), was sponsored by the four parties alliance consisting of Jan Sangh, Swatantra, Congress led by Shri Nijalingappa, and Samyukt Socialist Party. , F

The appellant alleges several corrupt practices in his election petition before the.'Hizh Court and also raises <:ertain question of law ..

The Chief Election Commissioner has been impkaded as a respondent in this appeal. The High Court has repelled the contentions of the appellant. We are now concerned in this appeal with the following issues:-.

Issue No. 2 : "Whether the order of the Election"Commission adjourning the poll from 3rd March to 9th March wa~

without jurisdictio.n and iIIegal"' ?

Issue No. 5 : "Whether Pooran Singh Malan (respondent No. 2) withdrew from the election on 6th March and asked his supporters to vote instead for respondent No. 1. If so, was this done as a result cf inducements offered at the instance of respondent No. 1" ? ·

MOHD. YUNUS v. s. K. SHASTRI (Gosl\'ami, /.)

Issue No. 7 : "Whether voters were induced by threats oll'ered by Hukum Singh, the polling agnt of respondent No. 1, to promisa not to vote for the petitioner but to vote for respondent No. l (as detailed in paragraph 28 of the petition)"'!

Issue No. 8 : "Whether respondent No. 1 and Kalya11 Singh, M.. L.A. appealed to Hindu voters in Gordha village on 7-3-1971 not to vote for the petitioner because he was a Muslim (as detailed in para 29 of the petition): and whether similar appeals were made to voters by respondent No. 1 and Prakash Vir Shastri, Virendra Varma, Raghunath Singh and Ram Prasad Deshmukh in Khair, Chandaus and lglas bet ween 7·3-1971 and 9-3-1971 (as detailed in para 30 of the petition)"?

Issue No. 8A: "Whether respondent No. 1 and the other persons named in paragraph 30 of the petition and the sta'c ment of further particulars made speeches in Khair, Chandaus and Iglas Tehsils alleging that the petitioner was responsible for communal riots in Aligarh and other place.;, which statements were known by them to be false" ?

Issue No. 9 : "Whether Virendra Varma and Raghunath Singh appealed to Jat voters to vote for respondent No. 1 on the ground that he was the candidate of a party led by Shri Charan Singh (as detailed in para 30 of the petition)" ?

Issue No. 10 : "Whether respondent No. l's election agent Yogendra Pal Singh and Virendra Varma and Charan Singh appealed to Jat and Thakur voters at Iglas on 7-3-1971 not to vote for the petitioner as he was a Muslim and not to allow Muslim, Jatav and Brahmin voters to vote (as detailed in para 34 of the petition)" ?

Issue No. 11 : "Whether at the same mectlhg men•ioned in para 34) Yogendra Pal Singh falsely stated that the peti, tic.ner was a Razakar of Hyderabad and had instigated the Aligarh riots" ?

Issue No. 12 : "Whether respondent No. l has commi•ted corrupt practices as defined in clauses (1), (2), (3), (3A) and ( 4) of section 123 of the Representation of the People Act"?

The learned counsel for the appellant has firstly addressed us on the 2nd issue and we will, therefore, take the same first.

To appre ciate the point i.n controversy, some 'facts may be stated :

The Election Commission published a notification in the Ga7.etle of India Extraordinary dated 27th January, 1971, fixing the following dates for the purpose of the election under section 30 of the Act :

February 3, 1971-The last date for making nominations.

February 4, 1971-The date for the scrutiny of nominations.

February 6, 1971-The last date for the withdrawal of candidatures.

Various dates between March 1, 1971 and March 5, 1971-For holding the poll in different constituencies in Uttar Pradesh.

March 15, 1971-The date before which the election shall be completed.

The notification fixed March I, 1971, for the poll in the A!igarh and Koil segments and March 3, 1971 in the Iglas, Khair and Chandaus segments.

The learned counsel for the appellant submits that the Election Commission had no jurisdiction or authority to alter the dates fixed under clause (d) of section 30 in the aforesaid notification except under circumstances mentioned in sections 57 and 58 of the Act.

We may, therefore, first look at sections 57 and 58 of the Act. Section 57 in terms provides for a situation when the proceedings at any poHing station in an election are interrupted or obstructed by any riot or open violence, or if it is not possible to take the poll at any polllllg

station on account of any natural calamity, or any other sufficient cause. Section 57 empowers the presiding officer or the returning officer to adjourn the poll to ano:hcr date in any of those circumstances.

The returning officer under sub-section (2) has to report the circumstances to the appropriate authority and the returning officer next fixes appropriate dates for poll with the previous approval of the Election Commission. Under soction 57(2) when the poll has to k post-· paned after the same has commenced and voters have exercised their right to vote for some time, there is provision for fixing the hours during which the next poll shall be taken and there is a direction in this sub-section not to count the votes cast at such election until such ad- }ourncd poll has been completed. Section 57, therefore, does not deal with •he direct exercise of power by the Election Commission in altering dates of poll under the conditions specified in that section. Section

58 provides for a contingency where a ballot box used at a polling station or at a place fixed for the poll is unlawfully taken 011t of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost or is damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained or any such error or irregularity in procedure is likely to vitiate the poll is committed. therein. In such an event the returning officer has to report the matter to the Election Commission who after. taking all material circumstances into account has to t1ke a decision to declare the poll void and appoint a day and fix the Jiours for taking a fresh poll after an appropriate notification in that behalf. The Election Commission under this section may even decide against a fresh po!I after considering •he various circumstances and direct the returning officer for the further conduct and completion of the election. It is, therefore, clear that these two sections can be invoked only in very specified circumstances and in the manner provided therein. On the other hand, our attention is drawn to two oth<r

sections, namely, section 30 and section 153 of the Act, which were

MOHD. YUNOS V, s. K. SHASTRI (Goswami,/.) 743

A relied upon by the respondents in. the High Court and the submissions were accepted there .. We may read these two sections :

·-r ' .. , •

Section 30 : "Appointment of dates for nomi, nations, etc.-

As soon as the notification calliJ.lg upon a constituency to elect a member or members is issued, the Election Commission shall; by notification in the Official pazette, appoint- ( al the last date fr maki, ng nominations, which shall be

the seventh day after the date of publication of the first-mentioned notification or, if that day is a public holiday, the 'next succeeding day which is not a public holiday; ( b) the date for the scrutiny of nominations, which shall be the day immediately following the last date for asking nominatio.ns or, if that day is a public holiday, the next succeeding day which is not a public holiday;

( c) the last date for the withdra\Val of candidatures, which shall be the second day after the date for the scrutiny of noininations or, if that day is a public holiday, the next succeeding day which is not a public holiday;

{ d) the date or dates on which a poll shall, if necessary, be take.n, which or the first of which shall be a date not earlier than the twentieth day after .the Jast date for the withdrawal of candidatures; and

( e) the date before which the election shall be completed".

Section 15 3 : "Extension of time for completion of election- It shall be competent for the Eiection Commission !or reasons which it considers sufficient, to extend the time for the completion of any election by making necessary amendments in the notification issued by it under secticln 30 or sub-section

(1) of section 39".

The High Court has held that "sectio.n 153 can be construed as declaring the competency of the Election Commission to extend time under clause (d) as well as clause (e) of section 30". We are w1ablc to ae with the High Court .that section 153 can be properly invoked in this case to the aid of the Election Commission in changing the dates of poll for the three remaining constituencies, speeified in the notification under .section 30'(d) of the Act. Secti6n 153 in terms pro vides for extending "the time for completion of any election by making necessary amendments in the notification issued by it under section 30 .....• ". Section 30 (e) deals with "the date before which the election shall be completed". It is clear in this case, as set out earlier, that the last date for completion of the election was fixed by the appropriate notification to be 15th March, 1971 and the altered date of poll .in this case from 3rd to 9th March is within. the last date for completion of the poll under section 30(e). Section 153, therefore. cannot

come to the aid of the Election Commission to alter the date of poll, A ns has been clone in this case, as the said section is inapplicable to the

facts and circumstances of this case. We may, therefore, examine whether the Election Commission bas got power to alt!'r the date of poll under section 30 of the Act read with section 21 of the General

Clauses Act which is undoubtedly applicable in interpretation of the proviS1ons of the Act. We may read section 21 of the General Clauses B Act.

Section 21 : "Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-Jaws is cunforred, then that power includes a power, exercisable in the like manner and subject to the like sanctio.n and conditions if any, to add to, amend, vary or rescind any notifications, crdcrs, rules or bye-laws so issued". .

 The Election Commission in this case exercised power under section 30 of the Act and issued the .notification appointing the various dates mentioned therein for the purposes specified. Once this power is conferred under section 30 upon the Election Commission, the power to amend the - amo,. which will include alteration of the dates of poll, can be exercised under secticn 21 of the General Clauses Act. There is, teerefore, no merit in the contention that the Election Commission had no power or jurisdiction to alter the date of poll from 3rd March to 9th March" 1971, in the remaining constituencies in this case. Issue No. 2 is, therefore, rightly decided by the High Court although we do not agree with the High Court with regard to the construction of sec tion 153 of the Act In the view we have taken, it is not necessary for us to consider whether Article 324 can be invoked in this case in aid of the power to alter the date of poll by the Election Commission.

The learned counsel for the appellant also submits that there should have been a fresh notification of the date in form No. 1 under rulc 3, read with. section 31 of the Act, of the Conduct of Elections Rules 1961. We -are, however, not impressed by this submission as the amendment of the date of poll gets engrafted in the original form in pursuance of the subsequent notification dated 2nd March, 1971. made in valid. exercise of the power under section 30 of the Act, read with section '.21 of the General Clauses Act.

We now turn to issue No. 5 relating to the corrupt practice of bribery defimod under section 123(0.(A) {'a) of the Act, The case of the appellant with regard to this. issue is as follows :-

"At about 7.00 P.M. on 6-3-1971 there was a meeting at the J\ligarh residence of K. N. Agarwal(said to be one of the financiers of the B . K. D .

Party in . the elec•ion), . which, was attended by Shiv Kumar Shastri (respondent No.)), Pooran Singh Malan (respondent No. 2), Vircndra Verma (Hom~ Minister of the then U. P. Government),

urendra Kumar (another alleged financier of the B. K. D.

Party), and a number of other persons. Oiie A•nia Deo %arma stood up and made an appeal. to Shastri and Malan

, <~ •

that only one of them should stand for election and thereupon Shastri, Malan and Surendra Kumar went into an adjommg room, where Surendra Kumar offered to pay Rs. 30,000/· to Rs. 35,000/- to Malan if he would withdraw from the co.ntest, white Shastri told Malan that he would recommend him for a seat in the Legislative Council. On this Malan said that he had no need of money and as regards the seat in the Council, that was for the future to decide, but as they were all asking him to withdraw, he would comply.

The three of them then joined the others and Malan ,, nnounced his withdrawal and requested his supporters to . transfer their allegiance to Shastri".

Before we discuss the evidence, we may deal with a question of law. addressed by Mr. Hardy, learned counsel for the contesting respondent.

According to the learned counsel, even assuming that any gratification was offered to Malan on 6th March, 1971, to induce him to refrain fron1 contesting the election, that would not amount to a corrupt practice within the meaning of section i23(l}(A)(a) of the Act.

We may, therefore, read that part of the section :

Section 123: "Corrupt practiceS-The following shall be deemed to be corrupt practices for the purposes of this Act :-

(1) 'Bribery', that is to say,-

( A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, di rec Uy or illr directly of inducing-

( a) a person to stand or not to stand as, or to. withdraw

or not •o v.ithdraw from being a candidate at a.n election, or;''

Th<! allegation in the present case is that an offer of gratification wa~, mode to Malan to induce him "to withdraw from being a candidate".

It is submitted that since. the time for withdrawal Qf candidature ha<t already expired, there can be no withdrawal of candidature after the" date fixed for that purpose in the appropriate notification to come within the mischief of section 123(l)(A)(a). It is further submitted that even though he may not have taken any part in the election after the expiry (If. the date of withdrawal, he will remain a contesting can didate •houghout the clectio.n. n is also pointed out that in fact Malan obtained vote.s in the election which was held on 9th March, 1971 itr various constituencies as will also appear from the chart given above.

The learned counsel also drew our attention to the earlier law on the" subject where a provision under section 123(0(a) stood as follows:-

"a person to stand or not to stand as or to. with-draw from being a candidate or to retire from contest, at an election;''

5';·

Mr. Hardv .submits that the words "to retire from contest" are omitted from the 'present section, which, according to him, is very -significant.

He, theretore, submits that since Malan could not in !aw withdraw from the candidature on 6th March, 1971 and there is no question of retiring from the contest under the present Jaw, _no corrupt practice has bcrn committed within the meaninz of section 123(l)(A)(a}.

JI is well settli:d that election under the Act is from the date of publication of the notification calling the election to the date of declaration of the result of the election, both days inclusive. We have, therefore, a torminus a quo and terminus ad quern under the law. The word "candidate" is defined for Part VI (Disputes regarding Elections) and !'art VII (Corrupt Practices and E1ectoral Offences) under Section 79 (b} and it mea.ns "a. person who has been or claims to have been duty nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when with the election in prospect; he began to hold himself out as a prospective candidate".

Section 32 provides for nomination of candidates for election. Under section 36(8), "f=ediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his hotice board"'. Section 37 provides for withdrawal of candidature within the time. specified therein. Section 38 provides for publication of list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period.

The word "contesting candidate" as such is not defined in the Act, but the word "candidate" under rule 50(a} and rule 28(a} of the Conduct of

Elections Rules 1961 means a contesting candidate. The question is whether after the time for withdrawal has expired and a JiSt of contesting candidates has been published, withdrawal thereafter from the contest on receipt of bribe will be within the mischief of section 123(1)(Al(a). -

We have already set out the material portions of section 123(1} (A} as well as the earlier section to which our attention has been drawn. It is strimuously submitted by Mr. Hardy that the omission

__ -_of the words "retire from contest" is very significant and the legislature now confines withdrawal under section: 123(l}(A}(a) to the stage as envisaged under section 37 and not thereafter. The Shorter Oxford English dictionary gives the meaning of the word "withdraw" (verb intransitive} to go away or retire fro!!! the field of battle or any contest.

Withdraw or not to withdraw, therefore, includes "retire from contest" or not to retire from contest. There is,, therefore, nothing significant etymologically in the deletion of the words "retire from contest". When, therefore, section 123(l}(A) soeaks of withdrawal from being a candidate, it is not limited to a candida•e who has been vali'dly nominated and who has withdrawn earlier according to law.

It is because of this reason that the words "retire from contest" become unnecessary and were advisedly deleted by the legislature.

Again looking frcm another angle, section 123(l)(A)(a) has got two stages; the first stage relates to the period when even before filing of nomination paper a person is contemplating to stand or not to stand as a candidate in the election [see definition of candidate under section 79(b)]. The second stage is reached after filing of the nomination paper when law gives a candidate requisite lime to withdraw from the cindidature. It is true that the words "to retire from contest" in the old provision arc now deleted and the provision is recast by adding the words "not to withdraw" in addition to the words "to withdraw" in the earlier provision.

We arc, however, unable to hold that the expressicn "to withdraw or not to withdraw" from being a candidate has only a r"strictcd meaning to be confined to the stage where law permits a candidate to withdraw from the election.

For the purpose of section 123 the words "to wihdraw or not to withdraw" from being a candidate are of wide amplitude to include a subsequent withdrawal or nonwithdrawal even al the last stage prior to the poll.

We may also consider whether deletion of the aforesaid words makes any difference under the scheme of the Act. "Since purity of elections is the mcM important object of the Act, a narrow meaning to the word

"withdraw" to refer only to legal withdrawal under section 37 would Jcfeat the very aim.

We have, therefore, to give a meaning to the word "withdraw" keeping in mind the object and scheme of the Act with a view to effectuate the intention of the legislature to ensure purity in elections; else there will be an absurd position where actual withdrawal after the time limit by taking bribe will be free from the vice of corrupt practice whereas that prior to it will not be so.

Such an intention cannot be attributed to the legislature from deletion of the words "'retire from contest".

The word "withdraw" is comprehensive enough to also connote Hretire from contest"." We are, therefore,. unable tci accept the submission that even if the facts alleged be established, there can be no corrupt practice within the meaning of seclion- 123( 1) (A) (a) of the Act.

We will, therefore, deal with the allegations to see how far they are established on the evidence.

We have already set out the allegations with regard to this issue and the first respondent has denied all the allegations. His case is that no bribe was offered nor any promise made to. Malan and in actual fact Malan did not withdraw from the contest and continued to fight the election to the end. The solitary witness who claims to have been present when the offer of gratification was made is Dcvendra Pal Singh (P.W. 20). This witness claims to have been one of the workers of the first respondent and indeed propooed Shastri's nomination.

He changed his allegiance from one party to another, namely, from the B.K.D. to the Congress (R) in September 1971. We are unable to hold that the High Court.js wrong in not placing reliance upon his evidence. The High Court has also found the corroborating evidence equally unreliable. .Since we agree with the appreciation of the evidence of the witness by the High Court with regard to this.charge, we may only briefly allude to the other evidence to demonstrate its unreliability. Radha Raman Dhwaj Prasad Singh (P.W. 21) was examined to support these allegations.

He hu.s been a B. K. D. worker since 1969 and he claimed also to be in that

748 SUPREMll. COUR'{. REPORTS tl974J 3 s.c.a.

' party on the date (12-12,1971) he gave evidence for the appellant.

He admits to have worked for the first respondent in 1971 election.

Although he did not depose to the entire episode and did not go into .the room where the discussion took place with regard to the bribe and .the promise of a seat in the Council, he stated that Malan announced .that he was withdrawing in favour of Shiv Kumar Shastri and told his workers to see that Shastri was successful.

He admits to have taken ll!llll from the Aligarh Cooperative Bank at a time when Devendra Pal

Singh (PW 20) was the Chairman of the Bank. He has not received .any recovery notice.

This witness has also changed his loyally for .reasons best known to him and cannot be considered as a reliable witness in an election matter where one may not fail to come across truth being sacrificed at the altar of political expediency.

The next witness is Shashi Bhushan (P.W. 32). He has been a Member ot Parliament since 1967. He went to Aligarh on 7th March, 1971, to 'help the appellant in his election.

He met Pooran Singh Malan on 7thMarch, 1971, in Aligarh.

He asked him why he was withdrawing from the election since he had read about this in an Agra news paper .called "Amarujwala", which, however, has not been produced . .According to his evidence, Malan told him that the atmosphere had •Changed since the communal riots and the grand alliance which had been supporting him was no longer supporting him. He further stated ''° this witness that he had be.en promised a seat by Shiv Kumar Shastri in the .Legislative Council.

He further stated that he was going to a meeting of Shastri to announce his withdrawal.

This videncc is , absolutely improbable in view of P.W. 2l's statement that Malan had .announced his withdrawal on the previous day, viz., 6th March, 197L Tt is not easy to comprehend why Malan should have at all cxpo5cd him.- self to unsavoury comments and other consequences by stating to this witness in the manner he is alleged to have done.

We cannot say lhat the High Court has wrongly rejected the testimony of P.W. 32. Another witness is Anand Pal (P, W. 10) who attended, according to. him, certain meeting at Gordha Bazar on 7th March, 1971. He deposed to rhe effect that KaJyan Singh was addressing the meeting and Kalyan Singh while addressing the meeting said, "he had got Pooran Singh Malan to withdraw'', so that all Hindus could unite to vote for a Hindu.

Shiv Kumar Shastri also repeated the same things.

He said he was a staunch Hindu and they should vote for him and he bad got Malan to stand down". It is difficult to believe that the first respondent woukl expose himself in such an open manner by stating in public that "he had got Malan to stand down".

This Was not at all necessary to state.

Such a serious charge cannot be established on mere statcmem of this kind.

Gajendra Singh (P.W. 18) is another witness to depose about the withdrawal of Malan amongst other things.

He is a member .:if s.K.D. Party and was a polling agent of Mrs. Gyatri Devi (wife of Sri Charan Singh) in 1967. In 1971 Parliamentary election k worked for'the first respondent and yet he went against him to depose against his interest. It is difficult to place any reliance upon such a witness and the High Court has rightly rejected ))is testimony.

Kishan Singh (P.W. 23) also deposed that he was present in a meeting at Iglas on /th March, 1971 and he heard Jogendra Pal Singh, election agent <>f

the first respondent, speaking in the meeting to the cf!ect, among•t -0lher things, "that Malan had bce.n made to withdraw and votes should

now go to Shastri who was of Charan Singh's party". This is llOt at all direct evidence about the allegauons which are made. by the appellant

to support the charge.

Ram Das Singh (P.W. 19) was also examined with reference to this charge.

His evidence too is not direct On the point and cannot be held to be at all helpful in establishing th" charge.

On the side of the respondents, the allegaticJts have been denied by Virendra Varma (R.W. 7) and also by Mahendra Singh (R.W. 3). In view of the nature of the evidence on the side of the appellant it is not even necessary to refer in detail to the respondent's evidence.

A grievance was made by the learned counsel for th~ appellant that a petition was made by the appellant for examination of additional witnesses and the High Court wrongly rejected the same.

We frnd from the order of the High Court that the party had been warned that "any

proposed addition to the list of witnesses would have to be justified". 'fhe High Court found that beyond saying that their names were left out "by inadvertence or oversight" no other sufficient ground was giYCn by the appellant to justify his prayer. We, therefori, do not find any Justification for the grievance on this score. Another petition was also filed by the appellant on 18th November, 1971, for examination of Pooran Singh Malan (respondent No. 2) as a witness. The High Court rejected the prayer on the ground that his name did not figure in the list of witnesses supplied on 9th November, 1971. Since Malan is a respondent, who on the proof of the averments could have been named under section 99, the appellant cannot mnke. a grievance for rejection of his prayer. It is not possible for this Court to interfQrc with the discretion exercised by the learned trial 1udge in a matter like this.

We now come to issue No. 7. This issue is with regard to the cot' rupt practice of undue. influence under section 123(2) of the Act. TI1e allegations are that on 7th March, 1971, two days before the poll, the first respondent visited the village of Sapera and after collecting a number of Hindus at the chaupal of the Sarpanch, Hukum Singh, went, along with them to the Muslim quarter of the village and by means of F 'threats forced the Muslim voters of that place to swear by the Quran that they would vote for him and not for the appellant or any other candidate. After the Muslims had. taken the oath, Shastri is alleged to have warned them that if they d1d not act in accordance with the oath, they would be in danger of divine displeasure. The witnesres examined by the appellant for establishing this charge arc Raghubir

Singh (PW 11), Rafiq (PW 14) and Shcodan Singh (PW 15). These witnesses are residents of Sapera. Both PWs 11 and 15 admit that they are supporters of the Congress and were supporting the Congress in the election but claim that on account of Shastri's visit to the villag~ on 7th March, J 97 J, they turned over to him. Even then they ha\'c come forward to give evidence against Shastri in this case. The High Court has given cogent reasons for discarding their testimony and we ore unable to take a contrary view.

P.W. 14, Rafiq, is nlso undepend-

II able.

Although he spoke about the swearing by the Quran at the mosque, he did not know the name of the Mulla.. He has no opinion nf his own and admitted that when asked by Shastri and others lie toltl that he would vote "as they directed". Finally he did not go lo \'Ole

on the day of poll. Besides, their statements are satisfactorily rebutted . A by the evidence of the first respondent, R.W. 1, Giraj Singh and R.W. 8 Harl Singh, the polling agent of the first respondent. We are satisfied that the High Court has correctly appreciated. the testimony of these witnesses with regard to this charge.

We will now deal with issues Nos. 8, SA, 9, 10 and 11.

These issues are interconnected and relate to the allegations made in paragraphs 29, 30 and 34 of the election petition. Tuey refer to a number of meetings held at various places, namely, Gordha, lglas, Jatari, Gaghana and Beswa, on 7-3-1971 and 8-3-1971, at whiclJ speeches were made either by the first respondent or by his agents and supporters.

Since we agree with the conclusions reached by the High Coun with regard to the proof of the various allegations, we do not propose to deal exhaustively with the evidence and only make a brief reference to some broad features.

Meeting at Gordha :

The allegations are that on 7th March. 1971, in village Gordha in the afternoon at weekly bazar, Kalyan.Singh, M.L.A., addressed a huge gatheriog in the following terms :-

"In Aligarh Muslims at the instance of the petitioner have chopped off the breasts of the Hindu women and have inllicted bodily injuries.

Now I ask every Hindu who is present in this gathering : Arc you so shameless to vote for a Muslim candidate?" He posed a question that you are the descendants of Shivaji and Rana Pratap and you should see that the butcher miyan (i.e. the petitioner) is defeated.

He also said that for this purpose only we got Shri Pooran Singh Malan, respondent No. 2, to withdraw his candidatwe so that Hindu votes may not be divided and a Muslim candidate may not win the election".

It is fwther stated in paragraph 20 of the. petition that "the first respondent was also present from the very beginning at the meeting and he also addressed the gathering supporting Kalyan Singh and requested them to vote for hi!ll as he was a Hindu and that they should not vote for the petitfoner who was a Muslim butcher, whose members of the community butchered the_ innocent Hindus and looted their properties in Aligarh city".

To establish the charge the appellant examined Kcsho Deo Haryana (PW 6), Khacheru Lal (PW 8), Subcdar Singh

(PW 9) and Anand Pal (PW 10); The first respondent examined himself (RW 14), Nern Singh Chauhan-(RW 5) and Jaipal Sineh

(RW 6).

P. IV. 6 (Kesho Deo.Haryana) : He is a counting agent of th~ appellant and was working for him. He is a Congress (R) worker.

He does belong to Gordha village.

He went . there for propaganda work for the appellant. Though he claims that he was present at the meeting held at Gordha on 7th March, 1971, and that offensive speeches . were made by Kalyan Singh and the first respondent at the meeting, he deposed to the following c(fect :-

.__ c.. ,

....

• <

"I. sent no written report about the speeches to the authorilies.

I made no written report to any one.

I merely reported orally to our President. .• He made a note in a file".

Such a file was not produced to corroborate his testimony.

P.IV. 8 (Khacheru Lal) : He does not belong to Gordha; his village is two miles from Gordha. He states that there is a Sunday market in Gordha and that he attended the meeting held there on 7-3-1971.

He did not attend any other meeting. He has further stated that he does not know how many candidates were contesting the election. He even does not know which party Pooran Singh Malan, respondent No. 2, was representing, though he alleges that Kalyan Singh in his speech at the said meeting inter alia, said "he had got Malan to withdraw". He could not also name the parties whose representatives had gone to his village in connection with Votes; nor could he give the name of any one who went there to carry on propaganda.

P. IV. 9 (Subedar Singh) : He states that he attended meetings at Kashipur Power House and at Nawala, but could not remember the dates of these meetings.

Although he stated that only Bir Pal Singh made a speech at the Kashipur meeting, he could not reproduce what Bir Pal Singh had said in the course of his speech. He gave the same pattern of evidence with regard to the Nawala meeting and could not give any idea about the speech that Kesho Deo Haryana made there.

He did not make any notes of the speeches at Gordha meeting and did not report to any one about it.

P. IV. 10 (Anand Pal) : He states that he made no written report . . about the Gordha meeting, nor did he make any notes about the E meeting.

He was asked by Babu Lal, former Chairman of the Municipal Board of Aligarh and an active Congress (R) worker, to give evidence. He gave him his ticket at the railway station ::nd told him that he could stay in the Congress office.

These allegations have been denied by R. W. 14 (the first respondent), R.W. 5 (Neem Singh Chauhan) and R.W. 6 (Jaipal Singh) F as will appear from their evidence which we have closely examined.

Meeting at lglas

 Thecappellant's case is that a meeting was held at Jglas at the Jawahar Inter College at 8.00 A.M. on March 7, 1971. Ho examined Gajendra Singh (P.W. 18) and Ram Das Singh (P.W. 19 J, Kishan Singh (P.W. 28) and Brij Lal Sharma (P.W. 31). P.Ws. 18 and 19 G were the active workers of the B.K.D. party yet they deposed that on hearing the allegations against Yunus Saleem and the Muslims of Aligarh . they changed their minds and worked day and night for the success of the first respondent. Even at the time of giving evidence they claimed to be in favour of the B.K.D. party, yet came forwad to give evidence against the successful B.K.D. candidate. Kishan Singh (PW 23) is a member of the Aligarh District Congress Co=ittee and claims to H have gone to the meeting organised by the rival party iµ order to find out what was being said. He, however, made no report about the unfa;; ful propaganda being carried on at this meeting to the election

5-L~4SupCl/75

752 SUPREMI: C'..ltraT REPORTS

[197 4] 3 S.C.R.

authorities. He was conscious that this meeting held within 48. hours k of the time fixed for the closing of the poll was an illegal one, yet he made no report to the authori!ies about this. Brij Lal Sharma (P.W.

31) is also a supporter of the Congress (R). Even he aid not make any report to any one about what he had heard in the inoting. The High Court has observed tl>at "the unreliability of the petitioner's allegations regarding this alleged Jglas meeting stands further more revealed by the discrepancy between the testimony of these witnesses • and the details given in the statement of further particulars filed by the petitioner on 26·8-71". It is also, disclosed in the further particulars "that among those who addressed the meeting held in Jglas at 8.00 P.M. on 7-3-1971 was Chaudhary Charan Singh, but none of four witnesst'S deposes to Chaudhary Charan Singh's participation in the meeting and from the statement of Brij Lal Sharma it is clear that Chaudhary Charan Singh did not alt.end it". As against this, we have C the evidence of Ramesh Chandra (R.W. 10) and Virendra Varma (R.W. 7) who deposed denying the allegaticins.

Virendra Varma (R.W. 7) who was then the Home Minister of U.P. frankly admitted that he had been to Iglas on 7-3·1971 in order to meet the B.K.D. workers of those places and not hold any public meeting or to make any electioneering speeches. The High Court has accepted his testi-

..J. mony and we have no reason to disagree with the conclusions reached D by the High .Court with regard to these allegations being not established against the first respondent.

Meetings at Jatari, Gabhana and Beswa : It is also alleged in the further -particulars filed by the appellant in the High Court on 26-8-1971 that a meeting was held at Jatari at 10.00 E A, M. on 7-3-1971. The appeilant examined Bed Vir Singh (P.W. 16) ' and Govardhan Singh (P.W. 17) to establish the allegations with regard to the. speeches made by Mahendra Singh (R.W. 3), YC@Cndra

Pal Singh and Virendra Varma (R.W. 7). There was also another meeting at Gabha:ia Village at 11.00 A.M. on 8-3-1971 at , which speeches were said to have been ma.de by the first respondent and Prakuh Vir Shastri, Genenl Secretary of the B.K.D. The appellant's F witnesses with regard to this meeting are Raj Kumar Sini; h (P.W. 24), Ombir Singh (P.W. 25), 01etanyn Raj Singh (P.W. 26) am! Dev Dutta Bhardwaj (P.W. 29). To refute allegations made by these witnesses, the first respondent examined himself (R.W. 14), fodh Pal Sil!lh (R.W .. Jl) and Raghunath Prasad Sharma (R.W.

12). A meeting was also held, according to the appellant, in tbe village of Beswa <'n 8-3-1971 at 12.30 P.M. at whicb Pooran Singh Malan, Gi Y otmdra Pal Singh and Virendra Varma are said to have made

obje<.'tiooable spc.ecbcs.

Evidence was led by the appellant" with regard to this meeting by examining Radha Raman Dhwaj Prasad Sin)!h (P.W. 21) and Harcbaran Lal (i'.W. 22). Virendra Varma (R.W. 7) and Virendra Singh (R.W. 9) denied the allegations.

The first respondent also produced rebutting evidence with regard to each of these alleged meetings.

We have examined the evidence in regard to each or tlic a£0t'e8aid !l'eetings.

The High Coitrt after a correct appreciation of the evidence

A led by the appellant came to the conclusion that tl1e evidence produced by the respondent has to be preferred and beld that allegations and imputations alleged to have been made in these meetings were not established.

We have en taken through the evidence by the learned counsel for the appellant and we are unable to hold that another view with regard to the oral testimony of tlie appellant's side is even possible in this case. Although we have referred to the evidence with regard B to two meetings earlier in the judgment, we do not propose lo restate the evidence and the improbabilities again since we are in complete agreement with the conclusions with reg_ard to all these charges reached by the High Court.

In view of the natue of the evidence Jed by the appellant with regard to these meetings and its refutation by the witnesses 0! the first c respondent, we have no reason to differ from the High Court's conclusion that the allegations have not been established.

In the matter of appreciation of oral testimony lit an election dispute, this Court in an appeal under section 116A must have convincing and clinching reasons tci take a contrary view from that of the High Court.

It is not enough that another Yicw is merely possible to take on the oral evidence. Strict proof of the allegations is called for D and the High Court has, in our opinion, rightly declined to accepnhe oral evidence of the appellant's side and rightly preferred that of the respondent's side.

We do not feel at all justified in this case to take a contrary view. We, therefore, hold that Issues Nos. 8, 8A, 9, 10 and 11 are correctly decided by the High Court. We have no hesitation to hold that the election petition was rightly dismissed. As for Issue No. 12, it is a consequential issue and in the view we have takn in the E foregoing discussion it was rightly decided against the appellant. We hold that no corrupt practice has been proved to have been committed by the first respondent under section 123(1), (2), (3), (3A) and

(4) of the Act.

In the result the appeal fails and is dismissed with costs.

V.P.S.

738

MOHD. YUNUS SALEEM

SHIV KUMAR SHAS1RI AND OTHERS

P. N. BHAGWATI

Ss. 30, 116

March 3. 1971

The polling at two of them was scheduled to take place on March 1, and at the other three on March 3.

Marth

I. 19_71

The Polling at the first two constituencies took place on Marth

I. 19_71.

s. 123(1)(A)(a)

s. 153

s. 30

s. 21

General Clauses Act

s. 30

Representation of the People Act

s. 21

General Clauses Act

s. 123(1)

s. 123(1)(A)

section 37

s. 123(1)

A. Subba Rao

J.B. Dadacha11ji

llardyal Hardy

S. S. Khanduja

S. K. Dhingra

L. N. Si11Jza

L. N. Si11Jza,, Solicitor General of India and M. N. Shroff, for the respondent no.

M. N. Shroff

Gosw

section 116A

Re presentation cf the People Act, 1951

Mohd. Yunus Saleem

Allahabad High Court

B. K.. D. candidate,

Shiv Kumar Shastri

Aligarh

The poll was scheduled to take place in Aligarh and Koil on.

Amar Singh

Shiv Kuniar

March 9, 1971

Samyukt Socialist Party

Jan Sangh

Swatantra

Nijalingappa

Pooran Singh Malan

5 : "Whether Pooran Singh Malan (respondent No.

Hukum Singh

7 : "Whether voters were induced by threats oll'ered by Hukum Singh, the polling agnt of respondent No.

Kalya11 Singh

Prakash Vir Shastri

Virendra Varma

Raghunath Singh

Ram Prasad Deshmukh

Charan Singh

Yogendra Pal Singh

Hyderabad

section 123

Representation of the People Act

Election Commission

section 30

Uttar Pradesh

March 3, 1971

section 30

sections 57 and 58

sections 57 and 58

Section 57

Section 57

Section 57

Section

58

section 30

section 153

Section 30

Section 15

section 39

section 30

section 153

section 30

section 30

Section 30

section 30(e)

Section 153

section 30

section 21

section 21

Section 21

section 30

section 30

General Clauses Act

3rd March to 9th March" 1971

Article 324

section 31

Conduct of Elections Rules 1961

2nd March, 1971

section 30

General Clauses Act

section 123(0.(A)

K. N. Agarwal(said

Vircndra Verma

U. P. Government

urendra Kumar

B. K. D.

Party

Shastri

Malan

Surendra Kumar

Hardy

addressed by Mr. Hardy, learned counsel for the contesting respondent.

Section 123

section 123(l)(A)(a)

9th March, 1971

section 123(0(a)

Hardv

6th March, 1971

Section 79

Section 32

section 36(8)

Section 37

Section 38

Elections Rules 1961

section 123(1)(Al(a)

section 37

section 123(l}(A)

section 123(l)(A)(a)

section 79(b)

section 123

section 37

Dcvendra Pal Singh

B.K.D.

Radha Raman Dhwaj Prasad Singh

Radha Raman Dhwaj Prasad Singh (P.W. 21) was examined to support these allegations.

Shiv Kumar Shastri

Aligarh Cooperative Bank

Devendra Pal

Singh

Shashi Bhushan

The next witness is Shashi Bhushan (P.W. 32).

Parliament

He has been a Member ot Parliament since 1967.

7th March, 1971

He went to Aligarh on 7th March, 1971, to 'help the appellant in his election.

Pooran Singh Malan

He met Pooran Singh Malan on 7thMarch, 1971, in Aligarh.

7thMarch, 1971

Agra

Anand Pal

Another witness is Anand Pal (P, W. 10) who attended, according to.

KaJyan Singh

Kalyan Singh

Gajendra Singh

s.K.D. Party

Gyatri Devi

Kishan Singh

Iglas

Jogendra Pal Singh

Ram Das Singh

Ram Das Singh (P.W. 19) was also examined with reference to this charge.

Virendra Varma

Mahendra Singh

18th November, 1971

9th November, 1971

Malan

section 99

section 123(2)

Sapera

Raghubir

Singh

Rafiq

Shcodan Singh

Giraj Singh

Harl Singh

Tuey

Gordha

lglas

Jatari

Gaghana

Beswa

Gordha

Meeting at Gordha :

The allegations are that on 7th March.

Kalyan.Singh

1971, in village Gordha in the afternoon at weekly bazar, Kalyan.

Shivaji

Rana Pratap

Aligarh city

Kcsho Deo Haryana

Khacheru Lal

Subcdar Singh

Nern Singh Chauhan-(RW

Jaipal Sineh

Kesho Deo.Haryana

Kalyan Singh

Subedar Singh

Nawala

Bir Pal Singh

Kesho Deo Haryana

Babu Lal

Municipal Board of Aligarh

Neem Singh Chauhan

Jaipal Singh

March 7, 1971

Brij Lal Sharma

B.K.D. party

Yunus Saleem

Aligarh District Congress Co

Jglas

Chaudhary Charan Singh

Ramesh Chandra

U.P.

Jatari

Gabhana

Beswa

Bed Vir Singh

Govardhan Singh

Pal Singh

speeches made by Mahendra Singh (R.W. 3), YC@Cndra

Pal Singh and Virendra Varma (R.W. 7).

Gabha:ia

Prakuh Vir Shastri

Raj Kumar Sini

Ombir Singh

01etanyn Raj Singh

Dev Dutta Bhardwaj

fodh Pal Sil!lh

Raghunath Prasad Sharma

Gi Y otmdra Pal Singh

Radha Raman Dhwaj Prasad Sin)!h

Harcbaran Lal

Virendra Singh

Virendra Varma (R.W. 7) and Virendra Singh (R.W. 9) denied the allegations.

section 116A

section 123(1)