9911796707
TMI Blog1975 (2) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... named in Schedule 'A' annexed to the election petition, from village Turakpur to the Polling Station at Mandaura (vide Paras. 7 (i) and (ii) and 13 of the petition); (b) The returned candidate or his agent Sube Singh, Jat resident of Kheri Mana and/or Om Parkash of Basantpura alias Bhera Bakipur, hired on payment of ₹ 200/- or procured otherwise Tractor No. DLL-9 make Hindustan, and Trailer No. MPE-8748 belonging to Shiv Lai son of Tirkha Ram and driven by Richhpal Singh and used the same for free conveyance of voters on March 11, 1972, from village Aurangabad alias Brahmanwas to Jakhauli Polling Station (Paras. 7 (vi) and 13 of the Petition). (c )The returned candidate on the polling day paid a sum of ₹ 7,000/- to Mange Ram son of Khusi Ram of Mandaura and his daughters and sons, by way of compensation in respect of the fatal in-juries received by Mange Ram in an accident, caused by the driver of Truck No. HRR-5167 while carrying the voters of village Turakpur free of charge. The returned candidate has failed to show this amount of ₹ 7,000/- and the sum of ₹ 400/-. being the total hiring charges of the aforesaid truck and tractor, in the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. 6. The first part of Issue (5) Is complementary to Issue (1), and the second part to Issue (4). These three issues relate to two distinct charges of corrupt practice under Section 123(5) of the Act. We should therefore, at the outset, have a clear idea of the ingredients of this corrupt practice, the onus of proving which lay on the petitioner. 7. Section 123(5) runs as under; The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or of his election agent, or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under Section 25 or a place fixed under Sub-section (1) of Section 29 for the poll: Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint cost for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the first part of the clause with the second. The latter construction appears to comport better with the aim and object of the amendment of 1966. In this connection, it is noteworthy that even be fore the amendment, this Court in Shri Balwan Singh v. Shri Lakshmi Narain , held that if considering whether a corrupt practice described in Section 123(5) is committed, conveying of electors can not be dissociated from the hiring of a vehicle. 10. Even If the word or is understood as a coordinating conjunction introducing alternatives, then also a petitioner in order to succeed on the ground of a corrupt practice under the second part of the clause, must prove, in addition to the use of the vehicle or vessel for the free conveyance of any elector to or from any polling station, the hiring or procuring of that vehicle or vessel. This is so because the word such in the phrase introduced by the 1966 amendment, expressly imports these elements of the first into the second part of the clause. 11. In the view we take we are fortified by the dictum of this Court in Joshbhai Chunibhai Patel v. Anwar Beg Mirza , wherein Hidayatullah, C.J., speaking for the Court, analysed the require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt. It is true that there is n difference between the general rules of evidence in civil and criminal cases, and the definition of proved in Section 3 of the Evidence Act does not draw a distinction between civil and criminal cases. Nor does this definition insist on perfect proof because absolute certainly amounting to demonstration is rarely to be had in the affairs of life. Nevertheless, the standard of measuring proof prescribed by the definition, is that of a person of prudence and practical good sense. 'Proof means the effect of the evidence adduced in the case. Judged by the standard of prudent man, in the light of the nature of onus cast by law, the probative effect of evidence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former, a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degree of assurance and judicial certitude is requisite for a convi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e carefully scrutinised the statements of P.W. 11, R. W. 2, R. W. 3 and R. W. 17 and the judgment of the High Court. 21. The question was whether the solitary statement of Tara Ghand was reliable and sufficient to establish the fact of hiring of the truck. Was his ipse dixit so impeccable that it would prudently be preferred to the sworn, testimony of R. Ws. 2. 3 and 17 examined by the opposite party? 22. For reasons that follow the answer to these questions, in our opinion, must be in the negative. 23. Firstly, Tara Chand appears to have been engrafted for evidence, subsequently as an afterthought His name as a witness or an informant of any fact whatever relating to the truck or-any vehicle, or otherwise does not figure in the petition, its verification or in the affidavit accompanying it. Mention of his name was first made in the list (dated 16-8-1972) of his witnesses by the petitioner about four months after the institution of the election-petition. 24. Secondly, he answers the description of a convenient witness who could don any part and play any role assigned So him from time to time, by his 'director', the petitioner. In the list, dated 16-8-1972. Tara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that the gist of Tara Chand's expected deposition as given in the list of witnesses, was the result of sheer inadvertence or en accidental slip. Tara Chand's case is not the lone instance of citing a witness for one purpose, and examining him for another. This technique seems to have been adopted by the petitioner in the case of a few other witnesses also. For instance, in the verification, Bhagwan Singh was mentioned one of the omnibus informants (named therein) of the various facts alleged in Paragraphs 12. 13 and 15 of the petition. But in the affidavit, he was indicated as the sole informant of the allegations in Paragraph 15 only. The allegations in Paragraphs 12 and 15 have nothing to do with the issues under consideration. In the list, Bhagwan Singh was not cited as a witness of any of the facts alleged in Paragraph 15. but of the hiring and use of the truck and for that purpose also, he was not examined. We are therefore of the (c)pinion that the citation of Tara Chand in the list of witnesses for proving facts other than the hiring and use of truck HRR 5167. was not the result of a mere clerical error. The fact remains that originally he wa9 not marked out to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Lakhi Ram and his son were likely to be estranged. Tara Chand was asked whether he was cultivating the land of pyara of Rathdana. He blatantly denied it. On this point his version stands falsified by the entries in the Khasra Girdawri, Ex. R. W. 17/11. which show that Tara Chand son of Rattan had cultivated Kh. Nos. 14/21 and 20 in the revenue estate of Liwaspur in Kharif 1971 and Rabi 1972 as a tenant under Pyara Lal and others. Khasra Girdawri is an official record prepared by a public servant in the discharge of his official duty. Prima facie there is no reason to doubt the correctness of the entries made therein. Tara Chand con ceded that Pyara Lal of Rathdana was the father-in-law of one of the sons of Lakhi Ram. He further admitted that there was litigation between this Pyara Lal and his tenants. He however, denied the suggestion that he was the leader of the faction of the tenants who. were pitched against Pyara Lai. He expressed ignorance as to whether the appellant was a counsel of Pyara Lal in that litigation against the tenants. 33. Viewed against the background of this litigation, it looks improbable that Tara Chand would go to Lakhi Ram lust to while away time a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W. 3) and Ch. Rizak Ram arrived. Ch. Rizak Ram asked the witness and others present there to bring about a settlement with Mange Ram as. it was election time, adding that otherwise, the whole thing might get spoiled. Randhir Singh got the settle-meat made, according to which., the appellant was asked to pay ₹ 10,000/- to the children of Mange Ram. Ch. Rizak Ram agreed. He took out ₹ 7,000/-from a thaila (bag) which he was carrying and paid that amount there and then to one of the daughters of Mange Ram and promised to pav the balance later. Ch. Rizak Ram then went 'away. Thereafter the Chowkidar called the Police Sub-Inspector (P.W. 1). Ram Singh from the polling station. The Sub-Inspector came and recorded the statement of Mange Ram, injured. The latter told the Sub-Inspector that the matter had been amicably settled. After the departure of the Sub-Inspector, Mange Ram was removed from the baithek and taken away m a white-coloured car. Witness further stated that he had seen this truck coming earlier on that day at about 8 a.m. There were passengers in the truck and a flag bearing the symbol of a woman at the spinning wheel had been hoisted on the truck. 38. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance from each other, Dharam Singh acted as a Dolling agent of the petitioner at the polling booth meant for the electors of village Mandaura, 41. Dharam Singh's version is that at about 8 a. m. on the polling day. 30 to 40 voters including Sis Ram, Balbir. Ram ' Singh. Ram Chand and Bharta of village Turakpur had come in a truck owned by Lakhi Ram and driven by his son, Kanwal Singh, outside the boundary of the polling booth. Witness was not aware whether this truck had come a second time. 42. Dr. Singhvi contends that original in the petition P. Ws. Amir Singh and Lakhu Bairagi were not mentioned as witnesses of the carriage of voters, but only of the settlement and the payment of ₹ 7.000/- by the appellant to the daughter of Mange Ram. The expanded role which they performed in the witness-box, it is urged, was a subsequent development. 43. As against this. Mr. Iyengar submits that the settlement and payment in the context of which the names of P. Ws. 9. 10, 11 and 33 were mentioned in the petition itself, could not be dissociated from the carriage of voters. Thus viewed, .says the Counsel, there has been no variation between pleading and proof. 44. In P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling agent of the petitioner. According to the petitioner's affidavit, he was his chief informant with regard to the facts constituting this charge. The witness is a political partisan of the deepest dye. As will be presently seen, it Was he who seems to have 'guided' Inspector Moti Singh in manufacturing evidence for the purpose of this election petition. Not only Dharam Singh's evidence, but also that of P. Ws. 9. 10 and 33 has to be appreciated in this perspective. 47. The evidence of Dharam Singh, besides being strongly partisan in character, appears to be otherwise unreliable. He wants to have it believed that while be was at the Polling Booth to submit the Polling Agent's Form, at 8 a.m., he saw the voters from Turakpur arriving there in this truck. Bringing electors in a motor truck on the polling day right upto the polling Station is an offence punishable under the Act. The Police Sub-Inspector Ram Singh and some constables were present on duty at the Polling Station. If Dharam Singh had actually seen this truck coming there loaded with voters, he would not have failed to report about it to the Police. The very fact that he did not do so makes his st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout it , On further questioning, the witness had to admit that in the elections of 1962 and 1967, the appellant was pitched examination of P.W. 9 to establish his interestedness in the petitioner. P.W. 10 was therefore, better prepared to meet the efforts of the appellant directed towards that end. P.W. 10 refused to divulge any such fact even at the risk of taking a stand verging on absurdity. He first hit back by saving that in the Parliamentary Elections of 1971 he had supported the appellant and not his opponent who. as is apparent from the other evidence on record, was a Congress (R) candidate. At first, he stated that he knew the election symbols of the petitioner and the appellant. He then said that he had voted against one of the several election symbols. He then reversed his earlier answer and stated that he cannot recollect the election symbol of the petitioner or any other candidate. He admitted this much that Ch. Tikka Ram of his village was defeated by the appellant in the elections of 1952 and that in two Assembly Elections the appellant was fighting against Ch. Hukam Singh. 53. Lakhu Ram. P.W. 10. was examined o the day following the cross- against Hukam Singh an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s miserable failure of the witness to particularize the place of his stay and his host or hosts at Chandigarh, renders probable the alternative suggestion out to him by the appellant. 54. Another peculiar feature of the evidence given by P. Ws. 9 and 10. is that both are assertive and specifically claim to be present at their respective viewing places, only at those points of time which are crucial to the charge leveled by the petitioner. Their version with regard to this matter is strikingly similar, if not absolutely identical. Thus Amir Singh, P.W. 9 stated: I took my seat on the Chabutra for smoking Hukka at about 8 a. m. on that day ...I went away to my house at a distance of about eight paces to take food at about 8.15 a.m. I returned from my house to the chabutra at about 10.30 a.m. Similarly P.W. 10 said: I had come out of my house at about 7.45 a. m. for rope making. I was sitting opposite my house on the kutcha portion abutting the road. However, I was not intently watching the road as I was busy with my occupation. I cannot now recollect the time for which I continuously kept sitting outside my house from 7.45 a. m. onwards. 1 had gone to give water to my bulloc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness alone. Kanwal Singh brought with him the registration certificate in respect of this vehicle to make it available for inspection by the Court and the parties. He further testified that his name stood painted on the truck. He claimed to be separate from his father in mess and residence. 58. Lakhi Ram. R. W. 3. fully corroborated his son. Kanwal Singh, in regard to the ownership of this vehicle. In cross-examination of R. W. 2. although an attempt was made to show that Lakhi Ram and his sons as members of joint family had a beneficial interest in this vehicle, yet Kanwal Singh's claim to the apparent ownership of the truck and the display of his name, as owner, on the body of the truck, was not questioned. These twin facts had thus been undisputably established. Amir Singh was cross-examined with regard to the basis on which the Detitioner's side alleged that basis truck belonged to Lakhi Ram son of Hira of Turkpur. Amir Singh replied: I did not notice its registration number but I noticed the name of Lakhi Ram written as its owner. This was a blatant lie. The witness has thus betrayed his true colour. He is of a type who in blind loyalty and support to the ease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mployed at Delhi in the Central Water Power Commission, but on the polling day he was in Mandaura. He is the nephew of Amir Singh. P.W. 9. According to him. the School building in which the polling station was located, is at a distance of 300 to 400 yards, from his residential house in the village. He has deposed that Manse Ram was brought to his house in an injured condition at about 10-30 a. m. by Amir Singh, p. W. 9, and Lakhu Bairagi. P.W. 10. The witness immediately called Smt. Sunder, the nurse from the Government Dispensary. The nurse save a couple of injections to Mange Ram and dressed up his head injuries. A large number 0f persons collected at his Baithek. The crowd included two sons and two daughters of Mange Ram. The witness further stated that Ch. Rizak Ram (appellant) and Ch. Lakhi Ram came there after about half an hour. The appellant asked the witness to get the matter amicably settled as it was a Question of polling . A compromise wa9 thereupon effected between the sons and daughters of Mange Ram on one side and the appellant and Ch. Lakhi Ram on the other. Pursuant to that settlement. ₹ 7.000/-were paid in cash by the appellant to Parmeshwari, the eldest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not an eve-witness of the accident or of the carriage of any passenger in this truck. Still, he was anxious to bring in that hearsay information by attributing the same to some unidentified persons in the crowd. The same technique of induction by hearsay, was used by the witness to explain why the appellant who was not driver or owner of the truck and as such, was not even remotely responsible for the accident. openly before a large number of persons, paid compensation to the injured or his daughter. The witness was conscious that in the absence of any such explanation, the story of the payment by the appellant, a veteran parliamentarian and experienced lawyer, would look inherently implausible and improbable. 65. The witness has disclosed the names of six persons who also, according to him, were present at the time of the composition and payment in pursuance thereof by the appellant. None of them has been examined. 66. Thus, the evidence of Randhir Singh does not stand on a better footing than that of P. Ws. 9 and 10. Not being itself flawless, it cannot, lend the requisite corroboration and assurance to the testimony of P. Ws. 9 and 10. 67. Now we turn to the evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before I recorded the statement of Mange Ram. The injured and his relatives on the one hand and the owner and the driver of truck on the other had already arrived at an amicable settlement before I had reached the baithak of Randhir Singh. Mange Ram made the statement before me regarding that settlement. I did not ascertain the exact amount but I came to know that the settlement was in the form of some payment which had been made by Lakhi Ram owner of the truck and others to Mange Ram and his dependents. 69. Ram Singh's statement in so far as it relates to the compromise and payment of compensation, is a subsequent improvement. These were facts relevant to the proceedings he was conducting, yet, he did not mention anything of this kind in the record (Ex. P.W. 1/1 and P.W. 1/2) prepared by him. Nor did he examine and record the statement of Smt. Parmeshwari, daughter of Mange Ram, Lakhi Ram, the alleged owner of the truck or the other persons found in the Baithak, who were supposed to be parties or witnesses to the said settlement and payment. Moreover, with regard to these facts which he claimed to be deposing from memory unaided by any record about 7 months after the occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh, to compound the offence, he could not evaporate into thin air in such a short time, nor was there any point in his running away when everything had been settled. Indeed, from the general tenor of Ram Singh's statement, it appears that he did not, at first, intend to deny the driver's presence before him. It was only to get out of the difficult situation in which he found himself in cross-examination, that he put up the absence of the driver as an excuse for not doing something which was the most material and natural thing to do for a person investigating an accident case of this nature. 70. We therefore, think that Ram Singh's statement with regard to the alleged composition and payment of compensation and other facts which do not find mention in the record prepared by him, is not reliable, much less is it of any use to lend assurance to the testimony of P. Ws. 12, 9 and 10. Rather, the non-mention of these material facts viz., the settlement and payment in pursuance thereof in the record of the proceedings by Ram Singh, undermines by implication, the version of the other P. Ws. in regard thereto. 71. Even so, Ram Singh's statement regarding these facts wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it does not directly contradict the account given by P. Ws. 9. 10 and 33 regarding the visit of the appellant and his participation in the settlement and payment of compensation to the daughter of Mange Ram. 73. The statement Ex. P.W. 1/1 of Mange Ram, recorded by Ram Singh, is however, admissible under Section 32, Evidence Act as to the circumstances of the transaction which resulted in his death. This Dying Declaration bears the thumb-impression of Mange Ram. This statement in its entirety, was incorporated in the General Diary of the Police Station. The authenticity of Ex. PW 1/1 cannot be doubted. 74. According to P.W. 10. in the morning of the polling day, at. about 8 A. M. also, Mange Ram had come to Mandaura in this very truck with a load of voters, and that earlier he had come along with one Lajya Ram, to canvass for the appellant.- As against this, in Ex. P.W. 1/1. Mange Ram stated that on the polling day he was returning home from village Kaloi after seeing his sister. On the way, he boarded the ill-fated truck at Turakpur which met with the accident at about 10.30 A. M. Kanwal Singh, R. W. 2, supports this version of Mange Ram. Mange Ram's daughter Parmeshw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police action and they cannot initiate any kind of proceedings. In the end it is prayed that enquiry may be held at the spot In this case personally so that his children may get justice and some means of their livelihood. 79. This complaint was marked by the Superintendent of Police to Inspector Moti Singh on 5-5-1972. Five weeks later the witness went to village Mandaura on June 11, 1972, for as he says enquiry into the complaint . He examined Rasal Singh, the ostensible complainant, who disowned the complaint and said that he had never made it. Moti Singh, however, examined one Misri Lai Brahmin, and Smt. Parmeshwari. daughter of Mange Ram. Moti Singh has testified that Ex. P.W. 2/2 is that statement of Smt. Parmeshwari, which he had recorded. He added that this statement, after recording was read over to Smt. Parmeshwari who had, after, admitting it to be correct, thumb-marked it. 80. The statement Ex. P, W. 2/2 runs thus: On the 11th March. 1972, votes were to be cast in our village. My father was supporter of Chowdhri Rizak Ram. Truck No. HRR-5167 owned by Lakhi Ram son of Hira Ram resident of Turakpur had been deployed for the transportation of voters on behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to the fatal injuries sustained by Mange Ram. I did not go to Rai Police Station in connection with my enquiry. I knew before going for the enquiry that Mange Ram had already died, as this had been stated in the application Ext. P.W. 2/1. I did not go to the hospital when* Mange Ram might have died as I had not considered it necessary to do so. Nor did I consider it necessary to examine the truck owner or the driver of the truck. Nor did I make enquiry from any resident of Mandaura except the three persons already named by me. 84. It was therefore his duty to find out whether or not the death of Mange Ram was caused by any rash or negligent driving on the part of Kanwal Singh, and .it so, whether any cognizable offence had been committed. In case the commission of any cognizable offence was disclosed, he should have taken to task Sub-Inspector Ram Singh or at least call ed for his explanation as to why he had allowed the matter to be hushed up, even without registration of a case at the Police Station. For inquiring into these vital issues, it was absolutely necessary for him to examine Kanwal Singh, the driver, and the persons who were witnesses of the accident, partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be paid to her. She, however, did not receive any money later on. In answer to a question put by the petitioner's Counsel, she replied that she had not complained to any authority that her thumb-impression had been taken on a blank paper. Parmeshwari, however, categorically stated that she never saw the appellant on the day of the accident and that the latter or his agent did not pay her any compensation for the injuries received by her father. As already noticed, she had corroborated the statement (Exh. P.W. 1/1) of Mange Ram to the effect, that on the polling day, he was returning home from village Kaloi and had taken a lift in the truck unto Mandaura. 87. The learned trial Judge has held: The manner in which Parmeshwari prevaricated in the witness-box (as is evident from her vacillating statement.) leaves no doubt in my mind that she was not only under the influence of the respondent, but had been coached during the lunch interval by someone in the interest of the respondent with the result that she wanted to completely go back on that part of her earlier statement which sup ported the case of the petitioner. The note made by Sandhawalia, J., on October 12, 1972, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an official of the Court should go out to ascertain this fact. I am afraid no such roving enquiry is possible. 90. It will be seen that this was only an allegation made on behalf of the petitioner. A suggestion to that effect, as already noticed, was unequivocally denied by Parmeshwari. , There is nothing else on the record to show that this allegation was a fact. 91. Surrounding circumstances apart, the document Ex. P.W. 2/2 has its own tell-tale features which point towards its spuriousness. The document runs into two pages. On the first page, there is no signature or thumb-impression of the alleged deponent. The thumb-impression of Parmeshwari appears on the second page towards the bottom. The main body-writing is in Devnagri script studded with several English words written in English. These words are supporter , veterinary hospital , water-carrier etc. Moti Singh wants to have it believed that every word in Ex. P.W. 2/2 was written by him to the dictation of Parmeshwari. and that 'after scribing it, he read it over to her, in full, and she, after hearing and admitting it to be correct, thumb-marked it. In other words Moti Singh's bold claim is that even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of any person, if recorded, by a police-Officer in the course of investigation, shall be signed by the person making it. Even a statement of a witness recorded by the investigator during the inquest under Section 154 would be within the inhibition of Section 162. Behind this provision is a wholesome rule of public policy that witnesses at the trial should be free to tell the truth, unhampered by anything they might have been made to say to the police (see Tehsildar Singh v. The State of U.P.,. In contravention of this salutary provision, the Inspector got the record Ex. P.W. 2/2 .thumb-marked by Parmeshwari. Obviously, the object was twofold: Firstly, to tie her down to the statement as incorporated in Ex. P.W. 2/2; and secondly, to make U appear to the Court that it was her genuine statement as it had been 'authenticated' by her thumb-mark. 96. Assuming Ex. P.W. 2/2 was mot hit, by Section 162. Criminal Procedure Code then also, it could not be used as a substantive piece of evidence as it appears to have been done by the High Court to support the finding that the appellant had compounded the case and paid ₹ 7,000/- as compensation for the injuries recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot do any thing to comply with the Superintendent's order for another five weeks. It was only on 11-6-72 that he went to Mandaura and made this so-called enquiry and recorded Ex. P.W. 2/2. The complaint Ex. P.W. 2/1 although D/- 20-4-1972, was not mentioned in the list of reliance filed by the petitioner. The complaint Ex. P.W. 2/1, the statement Ex P.W. 2/2 and even its copy Ex. P.W. 2/l were produced in the trial Court for the first time on 10-10-1972 by Moti Singh when he was in the witness-box. An objection was taken to the late production of these documents. But it was overruled. Nevertheless, the fact remains that the document Ex. P.W. 2/2 was conceived and brought into existence pendent elite and produced in Court about 6 or 7 months after the filing of the election-petition. 100. The circumstances noticed above, in their totality, irresistibly lead us to the conclusion that the document, Ex. P.W. 2/2 was created primarily for use as evidence in this case. This finding must necessarily affect the mind of the Court in appraising the other evidence rendered by witnesses of Dharam Singh's ilk. 101. The stage is now set for examining the evidence of witnesses pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... school and that he excavated this sand after paying Royalty to Surat Singh who was the lessee of the quarry. He added that he did not obtain any receipt from Surat Singh regarding the payment of Royalty. When the names of thirty-five persons mentioned in Schedule 'A' to the election-petition were read out to the witness, he stated that they were voters. He however, expressly denied that anyone of them travelled in is truck on the polling day. He asserted that he did not give lift in is truck to any person, excepting Mange Ram, on that day. He denied that he had already brought one trip of voters from Turakpur to Mandaura and that this accident occurred during the second trip with Mange Ram sitting on the tool-box. He denied that his father used to accompany the appellant for canvassing during the election. 104. The learned trial Judge has disbelieved Kanwal Singh's version that on the polling day he was engaged in carrying sand from Fazalpur to Turakpur and not in conveying voters escorted by Mange Ram. He reached this conclusion mainly on the reasoning that no receipt, voucher or other independent evidence regarding the payment of Royalty to Surat Singh or the supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accident Kanwal Singh may not have spoken the truth inasmuch as he says that no voter from Turakpur had, boarded it. His statement, that Mange Ram at the time of receiving the injuries was not on the tool-box it the top but inside at the rear of the truck, is also not convincing. Circumstances suggest that Mange Ram was then perched on the tool-box which as a result of the collision had sustained damage. On these two points, Mange Ram himself has in his 'dying declaration' contradicted Kanwal Singh's version, and supported that of P, W. 10. 107. We are however, not Inclined to agree with the learned trial Judge in so far as he has held that Kanwal Singh's claim in regard to the carriage of sand from Fazalpur to Turakpur must necessarily be false. Mandaura lies on the road from Turakpur to Fazalpur. While going to Fazalpur from Turakpur for bringing sand the truck would not be carrying any load of sand. It was therefore, not difficult to combine one-way carriage of sand with the carriage of voters on the return trip to Fazalpur. As regards the carriage of voters also, we are not prepared to go to the length of holding that Kanwal Singh's statement that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e means having no special position or station in life. Further, Kanwal Singh's testimony to the effect, that he was present before the Sub-Inspector when the latter questioned Mange Ram in regard to the circumstances in which he received the injuries, appears to be plausible. It accords with the probabilities of the situation. Kanwal Singh's further assertion that the appellant never came there or saw Mange Ram injured also appears to . be true. The counterversion of P. Ws. 9, 10 and 33 that soon after the removal of Mange Ram injured to the baithak of Randhir Singh, the appellant came there, compounded the matter, took out ₹ 7,000/- in currency notes from a thaila he was carrying, got the money counted and paid it there and then to Parmeshwari, and then disappeared well in time before the arrival of the police, sounds little better than the story of Alladin's Lamp. It was indeed a fantastic tale not a snapshot from real life. It was not corroborated by anything in the record prepared by Ram Singh, P.W. 1. The appellant's connection with Mange Ram or any composition, settlement or ^payment of compensation for the injuries received by the latter in the accident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had deposed that Mange Ram injured in his dying declaration had stated that the accident was unavoidable and not due to any fault of the driver. Sube Singh's claim however, that Sub-Inspector Ram Singh did not record that statement of Mange Ram is not acceptable. Sube Singh further testified that neither Lakhi Ram of Turakpur, nor the appellant ever came to Mandaura on the polling day. Sube Singh's statement no doubt is not impeachable. The learned trial Judge of the High Court however has rejected his evidence in to . We think 'this was not justified. In any case Sube Singh's statement is not of a determinative character. His presence at the time of the settlement and payment of compensation has not been admitted by P. Ws. 1, 9, 10 and 33. Even so it lends strength to the sworn word of the appellant and Lakhi Ram, that they never visited Mandaura on the polling day much less they participated in any settlement and payment of compensation attributed to them. 113. Before the High Court it was contended that there was no evidence whatever to show that the voters, if any, conveyed in this truck were carried free o charge. The High Court got over this difficulty by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was a discrepancy in their statements about the time of such carriage. In our opinion this was hardly a good ground to brush aside Prem Raj's otherwise reliable testimony. We have already pointed out that one way carriage of sand in this truck from Fazalpur to Turakpur was not necessarily false. 117. Secondly, even if the nature of the trial of an election petition is not the same in all respects as that of a criminal trial, the burden of proving each and every ingredient of the charge in an election petition remains on the petitioner. If a fact constituting or relevant to such an ingredient is pre-eminently within the . knowledge of the - Respondent, it may effect the quantum of its proof but does not relieve the petitioner of his primary burden. The petitioner must adduce prima facie proof even of such a fact. That is to say he must establish such other relevant facts and circumstances which if unrebutted or left unexplained by the opposite party, would raise a presumption as to the existence of such fact in issue. But in the instant case, no evidential foundation was laid, nor any factual premises were established by the petitioner, from which any inference as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voters to Mandatra, Was with the consent, knowledge or at the instance of the appellant: (iii) that the conveyance of the voters in this truck was free of charge. 121. We would, accordingly, reverse the findings of the High Court on Issues 1 and 5 on this charge. 122. In view of our finding that payment of any compensation to Mange Ram or his dependents by the appellant had not been proved. Issue No.7 becomes redundant and academic. Consequently, we d0 not think it necessary to go into it. For want of factual premised the High Court's finding on this Issue fails and would stand reversed. 123. Now we turn to the charge relating to the hiring and use of f factor No.. DLL-9 for the free conveyance o voters. This charge is the subject of Issue No. 4. The allegations relating to this charge are to be found in Paragraphs 7 (vi) and 13 of the petition. In Para. 7 (vi) it is pleaded that the appellant procured or hired this Tractor through his agents, Sube Singh and Om Farkash, In the verification. Dharam Singh. Bute Ram and Chander Bhan are named as informants of the facts alleged in paragraph 7 (vi), and Jatinder Singh, Ran Singh and Ch. Rasal Singh regarding the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s replied: I do not know, as my grandfather's sister must have died before my birth . In answer to a court question he said that he was not related to the petitioner in any manner. He was further questioned as to whether Richhpal, the alleged driver of the tractor was related to the petitionee. He denied the suggestion. He further claimed that he had never informed the petitioner or anybody else about the hiring of this tractor. Of course he used to talk about it in the family. There is a note of the learned Judge who recorded his statement, that the witness prevaricated a good deal before giving this answer. He expressed ignorance about the original village of his grandmother, Smt. Dhapo. He further feigned ignorance if his wife, also named Dhapo was the sister of Khazan Singh of village Khewra Tehsil Sonepat. He went to the length of saying that he did not know any Khazan Singh of that village. 125. This Khazan Singh was examined as P.W. 38. In cross-examination, P.W. 38. frankly admitted that Smt. Dhapo was his sister and she was married to P.W. 29, Om Parkash son of Bhim Singh of Bhaira. P.W. 29 had thus no sanctity for oath. No reliance could be placed on the word of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd about the presence of Ch. Rizak Ram either at the time of hiring or the payment pf hiring changes, although in cross-examination. (sic) to make good this omission. 130. The deposition of P.W. Om Parkash is studded with adverse notes recorded by the learned trial Judge about his demeanour which was not of a straightforward and truthful witness. Despite this. in the judgment, the High Courts has observed: The whole of the statement of Om Parkash cannot be rejected merely because of slight exaggeration in his deposition on a side issue like the question of Riving information to the petitioner. The principle of falsus in no falsus in omnibus has not been applied to the evidence of witnesses in such cases and it is my painful duty to separate the grain from the chaff and to accept the former and merely reject the latter. I do not, therefore, attach any importance to that part' of the deposition of Om Prakash wherein he denied having given the information about the transaction to the petitioner. 131. In our opinion his demeanour coupled with the other infirmities was sufficient to condemn his evidence as wholly unreliable. Furthermore. Om Prakash was questioned as to wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, Richhpal's father, Shiv Lai, had died somewhere in April 1971, that is, about 11 months before the police challan in question. As will be presently seen, even the dead man was challaned along with his son, and was got 'actually' convicted. 134. Ritu Bhawaj, Inspector of Police, who is said to have checked and challaned this Tractor DLL-9 on the polling day, has been examined as P.W. 3. He inter alia stated that he had intercept ed this Tractor-cum-Trailer at about 12-30 a.m. on March 11, 1972. on the road between Seoli and Jakholi. The trailer was displaying a flag bearing the election symbol of Ch. Rizak Ram. There were about 50 passengers in the trailer pulled by it. Witness stopped the vehicle and questioned its driver, Richhpal of village Khurampur. Richhpal told the witness that he had brought the passengers from Aurangabad and was taking them to Jakholi. Voters from Aurangabad had to cast their votes at the Polling Station Jakholi. One of the passengers, Raje Ram, Lambardar of village Aurangabad, requested the witness to let off the driver as they were getting late for casting their votes at Jakholi. Richhpal further informed the witness that the tractor wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owards the appellant. Ritu Dhawaj remained posted as Station House Officer of Police Station Rai from May 1962 to the end of 1963. A complaint of one Sardara of village Machhraula was then under investigation in that Police Station. It was suggested to the witness that he and one Raghbir Singh, Personal Assistant to Ch. Ranbir Singh, then a Minister, had extorted bribes in the sums of ₹ 2,200/- and ₹ 2,800/-. respectively, from this Sardara. Witness denied the suggestion. He however admitted that Sardara had made some such allegations in a complaint against him and that complaint was inquired into by the District Inspector of Police. Questioned further, he first denied that Ch. Rizak Ram had appeared as a witness against him in that enquiry. In the next breath, however, he said I do not know if Ch. Rizak Ram did or did not appear as a witness before the District Inspector of Police in connection with that complaint of Sardara . There was still another shift in his position. On further questioning, he admitted that Ch. Rizak Ram did appear as a witness in support of that complaint against him. in his presence, in the departmental enquiry at its second stage. He denied a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was keeping options open and .scope for development, improvement and adaptations with impunity. 142. P.W. 15. Raje Ram son of Arjan of Aurangabad stated that he was instrumental in procuring the voters and sending them in the tractor-trailer of Richhpal to the polling booths of Jakholi on behalf of the appellant. According to Raje Ram, no fare was being charged from the voters for this conveyance. In examination-in-chief Raje did not say a word about, the interception of the tractor-trailer by the police Inspector. Nor did he claim that he used to accompany the voters to Jakholi. Cross-examined, the witness in an unguarded moment, admitted that the shorter path from Aurangabad to Jakholi may be hardly two or three furlongs. On second thought, when he realised the absurdity of free conveyance over so short a distance he tried to retract and change his earlier version. 143. In our opinion, it would be ridiculous for any candidate to arrange for carriage of village voters over so short e distance as two or three furlongs. Villagers are used to traverse long distances on foot. They could have easily walked this distance in a matter of minutes. 144. Further, like Richhpal, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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