1975 INSC 0057
                                                   Ch. Razik Ram

                                                           Vs

                                     Ch. Jaswant Singh Chouhan and Others

                                          Civil Appeal No. 947 of 1973

                                       (A. Alagiriswami, R. S. Sarkaria JJ)

                                                      11.02.1975.

                                                     JUDGMENT

SARKARIA, J. -

1. Ch. Razik Ram, Ch. Jaswant Singh Chouhan and three others, contested the election to the
Haryana Vidhan Sabha from 'Rai - 37' Haryana Vidhan Sabha constituency. The poll was held on
March 11, 1972. The result was announced on March 13, 1972. Ch. Razik Ram was declared elected
having secured 19,631 votes as against 18,702 polled by Ch. Jaswant Singh, his nearest rival.

2. Ch. Jaswant Singh, respondent (to be called the petitioner hereafter) filed an election petition
under the Representation of the People's Act, 1951 (hereinafter called the Act) challenging the
election of the appellant on various grounds, of which the following only survive for the purpose of
this appeal :

                  (a) The returned candidate hired on payment of Rs. 200 or procured otherwise than
                  on payment, truck No. HRR 5167 belonging to Lakhi Ram son of Hira, resident of
                  Turakpur and on March 11, 1972 used that vehicle for the free conveyance of
                  electors 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 Suba Singh, Jat resident of Kheri Mana
                  and/or Om Parkash of Basantpura alias Bhera Bakipur, hired on payment of Rs. 200
                  or procured otherwise tractor No. DLL 9, make Hindustan, and trailer No. MPE 8748
                  belonging to Shiv Lal 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 Rs. 7,000 to Manga Ram
                  son of Khusi Ram of Mandaura and his daughters and sons, by way of compensation
                  in respect of the fatal injuries received by Manga 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 candidates has failed to show this amount of Rs. 7,000 and the
                  sum of Rs. 400, being the total hiring charges of the aforesaid truck and tractor, in
                  the return of election expenses submitted by him under Section 78 of the Act. On
                  addition of these undisclosed items, the total of the election expenses incurred by him
                  exceeds the permissible limit of Rs. 9,000 [paras 7(iii), 10, 13 and 14 of the petition].
3. After considering the pleadings of the parties, their clarificatory statements and the abandonment
of some allegations by the petitioner, the learned trial Judge condensed the controversy pertaining to
the above grounds into these issues.

Issue No. 1 :

                  Whether respondent No. 1 hired on payment truck No. HRR 5167 belonging to Shri
                  Lakhi Ram son of Hira, of Turakpur, and used the same for the free conveyance of
                  electors, named in Schedule 'A' to the petition, on March 11, 1972, from village
                  Turakpur to the polling station at Mandaura ?

Issue No. 2 :

                  Whether Suba Singh of village Kheri Mana Jat was an agent of respondent No. 1
                  within the meaning assigned to that expression in explanation (1) to Section 123 of
                  the Act ?

Issue No. 4 :

                  Whether the respondent No. 1 hired on payment tractor No. DLL 9, make Hindustan,
                  and trailer No. MPE 8748 belonging to Shri Shiv Lal son of Tirkha Ram, and driven
                  by Richhpal Singh, and used the same for free conveyance of voters from village
                  Aurangabad alias Brahmanwas to Jakhauli polling station.

Issue No. 5 :

                  Whether respondent No. 1 paid Rs. 200 as hire charges for truck No. HRR 5167 and
                  Rs. 200 each to the owners or drivers of the tractors for their use for free conveyance
                  of voters. If so, has the respondent shown the said expenditure in the return of
                  election expenses ? If not, what is its effect ?

Issue No. 7 :

                  Whether the respondent paid a sum of Rs. 7,000 by way of compensation in respect
                  of injuries and death of Manga Ram as alleged in paragraph 10 of the petition. If so,
                  has the respondent included the said amount in the return of his election expenses ? If
                  not, what is its effect ?

4. The High Court decided issue No. 2 against the petitioner and issues Nos. (1), (4), (5) and (7) in
his favour and held that the appellant was guilty of committing the corrupt practices under Section
123(5) and Section 123(6) of the Act. In the result, the petition was allowed and the election of the
appellant was set aside.

5. Against that decision, dated May 15, 1973, of the High Court, Ch. Razik Ram has come in appeal
before us under Section 116A of the Act.

6. The first part of issue No. (5) is complementary to issue No. (1) and the second part to issue No.
(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 costs for the purpose of conveying him or them to and from any such
                  polling station or place fixed for the poll :

                  Provided further that the use of any public transport vehicle or vessel or any tram-car
                  or railway carriage by any elector at his own cost for the purpose of going to or
                  coming from any such polling station or place fixed for the poll shall not be deemed
                  to be a corrupt practice under this clause.

                  Explanation. - In this clause, the expression "vehicle" means any vehicle used or
                  capable of being used for the purpose of road transport whether propelled by
                  mechanical power or otherwise and whether used for drawing other vehicles or
                  otherwise.

8. Clause (5) of Section 123 has been amended more than once. Section 26 of Central Act 58 of
1958 inserted in it the words "with the consent of the candidate or his election agent". Section 53 of
Act 47 of 1966 substituted in it for the words "or the conveyance", the phrase "or the use of such
vehicle or vessel for the free conveyance". The object of making the 1966 amendment was started
thus :

                  Under clause (5) of Section 123, the hiring or procuring of any vehicle or vessel by a
                  candidate, etc., for the conveyance of any voter is a corrupt practice. But the Election
                  Commission has expressed the view that it is not so and the hiring or procuring of the
                  vehicles, etc., as the free conveyance of voters by candidate or his agent as an
                  inducement to them to vote on his behalf that requires to be condemned as a corrupt
                  practice. Clause (5) of Section 123 has been amended suitably for this purpose.

9. On analysis, clause (5) of Section 123 falls into two parts. The requirements of the first part are :
(i) The hiring or procuring whether on payment or otherwise, of any vehicle or vessel for the free
conveyance of voters. (ii) Such hiring or procuring must be by candidate or his election agent or by
any other person with the consent of a candidate or of his election agent. The second part envisages
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 election agent) to or from any polling station". The two
parts are connected by the conjunction "or" which is capable of the clause and creating an
alternative between them. In the other sense - which is akin to the sense of "and" - it can be
construed as conjoining and combining the first part of the clause with the second. The latter
construction appears to comport better with the aim and object of the amendments of 1966. In this
connection, it is noteworthy that even before the amendment, this Court in Balwan Singh v.
Lakshmi Narain ((1960) 3 SCR 91 : AIR 1960 SC 770 : 22 ELR 73), held that in considering
whether a corrupt practice described in Section 123(5) is committed, conveying of electors cannot
be dissociated from the hiring of a vehicle.

10. Even if the word "or" is understood as a co-ordinating conjunction introducing alternatives, then
also 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 words "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 ((1969) 2 SCR 97 : AIR 1969 SC 586), wherein, Hidayatullah, C.J., speaking for
the Court analysed the requirements of the clause, thus :

                  It will be noticed that this section also speaks of the use of such vehicle which
                  connects the two parts, namely, hiring or procuring of vehicles or its use. The
                  requirement of the law therefore is that in addition to proving the hiring or procuring
                  and the carriage of electors to and from any polling station, it should also be proved
                  that the electors used the vehicle free of cost to themselves.

12. In regard to truck No. HRR 5167 and tractor No. DLL 9, all conceivable facts, including some
in the alternative, which would constitute corrupt practices under Section 123(5) were alleged in the
petition. But at the time of settlement of issues, the plea of procuring in the case of truck No. HRR
5167 and the allegation of hiring of the said tractor by the returned candidate through his agent,
Suba Singh/ or Om Parkash were given up by the Counsel for the petitioner.

13. In the light of the above analysis of Section 123(5), it will be seen that regarding truck No. HRR
5167, under issue No. (1) and the first part of issue No. (5), the petitioner had to prove -

                  (i) that the truck was hired by the returned candidate,

                  (ii) that it was used for the conveyance of the electors on March 11, 1972 from
                  village Turakpur to the polling station at Mandaura, and

                  (iii) that such conveyance was free of cost to the electors.

14. Failure to substantiate any one of these facts would lead to the collapse of the whole charge.

15. Before considering as to whether the charges of corrupt practice were established, it is
importance to remember the standard of proof required in such cases. It is well settled that a charge
of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice
entails serious penal consequences. It not only vitiates the election on the candidate concerned but
also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an
election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal
action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an
election petition, the respondent against whom the charge of corrupt practice is levelled, is
presumed to be innocent unless establish each and every ingredient of the charge by clear,
unequivocal and unimpeachable evidence beyond reasonable doubt. It is true that there is no
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 certainty 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 conviction. The same is largely
true about proof of a probabilities, and, if, after giving due consideration and effect to the totality of
the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable
doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it
must hold the same as not proved.

16. We have reiterated the above principles not as a ceremonial refrain of what has been said by this
Court again and again but to emphasise their importance as a guide in the matter. A court embarking
upon an appreciation of evidence, without this rudder and compass, is apt to find itself at sea,
mistaking every flotsam for shore, suspicion for proof and illusion for reality. Since these principles
were not constantly kept in mind, the approach of the High Court in this case to the issues involved,
and the treatment of evidence, appears to have gone awry. It is therefore, necessary to reappraise the
evidence from the stand point indicated above.

17. We will now deal with the evidence relating to truck No. HRR 5167.

18. The first ingredient required to be proved in respect of this charge is the hiring of this truck by
the returned candidate. The direct evidence produced by the petitioner to establish this fact consists
of the oral statement of a solitary witness, Tara Chand (PW 11) a resident of village Liwaspur. Tara
Chand claims to be a relation of one Lakhi Ram of Turakpur who runs a shop at Sonepat and also
has a brick-klin in the are of Liwaspur. The story narrated by Tara Chand is that on the day
preceding the poll, he went to Lakhi Ram at his brick-klin just to smoke hukka. The appellant came
there in a car and in the immediate presence of the witness and two or three other persons, including
one Bhagwan Singh, hired the truck owned by Lakhi Ram and driven by his son, Kanwal Singh, for
the purpose of carrying voters from Turakpur to the polling station at Mandaura, and paid there and
then the hiring charges amounting to Rs. 200, which were reluctantly accepted by Lakhi Ram.

19. In rebuttal, the returned candidate appeared as RW 17 and also examined Lakhi Ram, Rw 3, and
the latter's son, Kanwal Singh RW 2. All these three categorically refuted the version of Tara Chand.

20. We have carefully scrutinised the statements of PW 11, RW 2, RW 3 and RW 17 and the
judgment of the High Court.

21. The question was whether the solitary statement of Tara Chand was reliable and sufficient to
establish the fact of hiring of the truck. Was his ipse dixit so impeccable that it could prudently be
preferred to the sworn testimony of RWs 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 after-
thought. 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 August 16, 1972) of the witnesses by the
petitioner about four months the institution of the election-petition.

24. Secondly, he answers the description of a convenient witness who could con any part and play
any role assigned to him from time to time, by 'director', the petitioner. In the list, dated August 16,
1972, Tara Chand was cited as a witness (at No. 25) for an entirely different purpose, viz : "To
depose tractor No. DLL 7946 used as conveyance for free carriage of voters." But one Bhagwan
Singh son of Juglal of village Liwaspur was cited at No. 1 in that list, to "depose regarding corrupt
practice of hiring truck No. HRR 5167 and using as free conveyance of voters". Later on when this
Bhagwan Singh was given up, the role originally assigned to Tara Chand was changed and he was
conveniently made to depose with regard to the hiring of truck No. HRR 5167 - a part which
according to the aforesaid list, had to be performed by Bhagwan Singh and some other witnesses.

25. Mr. Iyengar, learned Counsel for the respondent-petitioner, contends that this variation between
what Tara Chand, according to the list of witnesses was expected to depose and which he actually
deposed at the trial, was never put to the petitioner in cross-examination, and consequently, the latter
had no opportunity to explain the same. This discrepancy, it is suggested, may well be the result of
an inadvertent error or clerical mistake.

26. The contention is meritless and must be repelled.

27. As rightly point out by Dr. Singhvi, the learned Counsel for the appellant, the specification in
the list of witnesses of the gist of the facts to be proved by each witness, was a requirement of Rule
22 of the procedural rules framed by the Punjab and Haryana High Court (see Punjab and Haryana
High Court Rules and Orders, Vol. V, Ch. 4 G.G.). Rule 22 under the proviso to Section 87 of the
Act, to weed out unnecessary and immaterial witnesses cited by a party only for the purpose of
delay and vexation or on frivolous grounds, (ii) It ensures due opportunity to the opposite party to
collect material for impeaching and testing the veracity of the witnesses in cross-examination. If in
the list, dated August 16, 1972, Tara Chand was wrongly cited as a witness of different facts, then it
was for the petitioner to explain, on his own, as to why it was so. He cannot be allowed to take
advantage or escape the consequences of his own wrong in not complying faithfully and correctly
with the requirements of Rule 22. Moreover, in the circumstances of the case, there is not basis for
the argument that the gist of Tara Chand's expected deposition as given in the list of witnesses, was
the result of sheer inadvertence or an accidental slip. Tara Chand's case is not the lone instance of
citing a witness for the 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.

28. For instance, in the verification, Bhagwan Singh was mentioned as 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 opinion that the citation of Tara Chand in the list of witnesses for proving facts other than the
hiring and use of truck No. HRR 5167, was not the result of a mere clerical error. The fact remains
that originally he was not marked out to testify regarding the hiring of this truck.

29. Thirdly, the very story told by the witness is unnatural and improbable. His statement does not
inspire confidence. He is a 'chance' witness of the worst type. According to his own showing, he had
no business to go to the brick-klin. He just halted there to smoke hukka as Lakhi Ram was his
relation. His stay at the brick-kiln, as he claims, was for 15-20 minutes only. He came there just
before the arrival of the appellant, and disappeared soon after the latter's departure as if his sole
purpose in coming there was to be a witness of the hiring of the truck. It would be extremely rash to
swallow, without demur, so artificial a version.

30. In cross-examination, his claim of being related to Lakhi Ram or being his intimate associate
was blown to smithereens. When the pursuit for truth began, he, in a seductive bid tried like will-'o'-
the wisp to draw his pursuer deep into the bogs and marshes of the murky past and said that his
great-grandfather's sister was married to the grandfather of Lakhi Ram. The cross-examiner was not
taken in. He pressed his probe further. The witness then tried to take refuge in equivocation. Next he
attempted to hid behind the smoke-screen of 'failing' memory and said that he could not recollect the
name of woman through whom he was related to Lakhi Ram's grandfather, nor did he know the
name of Lakhi Ram's grandfather. The questioner relentlessly pursued his enquiry till the whole
thing was exposed to be aery nothing. Further cross-examination revealed that Tara Chand had only
superficial knowledge of the affairs of Lakhi Ram and his family. He did not know how many
children Lakhi Ram had. He did not know when and where Lakhi Ram's second son was married.
He was not aware if Lakhi Ram was running a shop in the Timber Market, Sonepat.

31. Lakhi Ram who appeared as RW 3, stated that Tara Chand was not related to him. His brick-kiln
was not being worked since 1970. He used to visit the kiln only occasionally but his Munim was
living there. He himself was running a shop in Kath Mandi, Sonepat.

32. It was thus clearly shown that Tara Chand's claim as to his being a relation and an intimate
associate of Lakhi Ram was false.

33. On the other hand, there is evidence on the record to suggest that Tara Chand's relations which
Lakhi Ram and his son were likely to be estranged. Tara Chand was asked whether he was
cultivating the land of Pyara Lal of Rathdana. He blatantly denied it. On this point his version stands
falsified by the entries in the Khasra girdawri, Ex. RW 17/11, which show that Tara Chand son of
Rattan had cultivated Kh. No. 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 conceded 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 Lal. He expressed ignorance as to whether the
appellant was a Counsel of Pyara Lal in that litigation against the tenants.

34. Viewed against the background of this litigation, it looks improbable that Tara Chand would go
to Lakhi Ram just to while away time and to smoke hukka in the latter's company. Still more
improbably was his story that the appellant settled the deal as to the hiring of the truck in the
immediate presence and hearing of the witness and his companion, Bhagwan Singh. Appellant is a
practising Advocate of standing and experience. He is a veteran of many election battles. It is
therefore difficult to believe that he would be so imprudent as to make such a deal personally and
openly in the presence of strangers.

35. In our opinion, to accept Tara Chand's testimony with all its faults, would be to adopt a course
of blind faith and convenience, and not of prudence and discernment. His evidence suffers from
grave defects and indelible blemishes which make it wholly unworthy of credit. We therefore hold
that the petitioner had failed in his attempt to substantiate by direct evidence the hiring of this truck
by the respondent.

36. To prove the use of truck No. HRR 5167 on the polling day for the free conveyance of electors
from village Turakpur to polling station Mandaura and the appellant's connection with such
conveyance, the petitioner examined PW 9 Amir Singh, PW 10 Lakhi Ram, PW 12 Dharam Singh,
PW 33 Randhir Singh, all of village Mandaura - PW 1 Ram Singh and Inspector Moti Singh (PW
2). Their evidence relates to issue No. (7) also.

37. We will first take up PWs 9, 10 and 12. The resume of their evidence is as follows :

38. P.W. 9 Amir Singh stated that on the polling day at about 9 a.m. he was smoking hukka on the
chabutra of his nephew. He heard a loud noise and groaning from Turakpur-Narela Road which is at
a distance of 60 paces from that chabutra. Thereupon he went to the road and saw a truck facing
towards Mandaura. The truck belonged to Lakhi. It had struck against the branch of need tree. The
broken branch was lying their. The voters of Turakpur had come in that truck. When the witness
reached the site of the accident, the passengers had already alighted from the truck and were going
towards the polling station. The witness saw one or two of them whom he knew earlier. They were
Ghasi and Sheora. Mange Ram lay injured on one side of the truck. PW 10 Lakhu brought a
charpoi. Mange Ram was laid on the charpoi and removed to the baithak of PW Randhir Singh.
Mange Ram's two sons and two daughters came there soon after. A little later, Lakhi (RW 3) and
Ch. Razik Ram arrived. Ch. Razik 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 settlement made, according to which, the appellant was asked to
pay Rs. 10,000 to the children of Mange Ram. Ch. Razik Ram agreed. He too out Rs. 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 pay the balance later. Ch. Razik Ram then went away. Thereafter the
Chowkidar called the Police Sub-Inspector, Mange Ram was removed from the baithak and taken
away in 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 flag bearing the symbol of a woman
at the spinning wheel had been hoisted on the truck.

39. In cross-examination, contradicting his version in examination-in-chief, the witness stated that
he had not seen Lakhi Ram the owner of the truck, with the appellant, nor had be noticed Lakhi
Ram at the time of the settlement and payment of Rs. 7,000 by the appellant.

40. PW 10 Lakhu Bairagi stated that he was present at his house in village Mandaura at about 7.45
a.m. He saw Mange Ram and voters including Ram Mehar and Jugta, from village Turakpur (later
on he substituted 'Lakhi Ram' for 'Daleep'). Witness saw another truckload of voters arriving in that
very truck at about 10-30 a.m. On that occasion the truck struck against the branch of a neem tree.
On hearing of commotion, the witness ran to the scene which was about 50 paces away from his
house. On reaching there he saw Mange Ram lying on one side of the truck and the broken branch
of the neem tree on the other. Kanwal Singh, the driver of the truck, after inquiring from the injured
as to the seriousness of his injuries, fled away. Witness had seen Khasi, Sudan, Jogi and Prem Raj of
village Turakpur among those who had alighted from the truck. He added that these persons had
come to cast their votes. The truck was carrying a flag bearing the figure of a woman with a
spinning wheel. After the accidence, PW Amir Singh and many children arrived at the scene. His
further statement with regard to the removal of Mange Ram to the house of Randhir Singh, the
arrival of Lakhi Ram and Ch. Razik Ram, the payment of Rs. 7,000 by the latter to Smt.
Parmeshwari, daughter of Mange Ram and the recording of Mange Ram's statement by Ram Singh
(PW 1) is more or less the same as that of PW 9, Amir Singh. He however, contradicted PW 9 with
regard to the arrival and departure of Lakhi Ram, the alleged owner of the truck, and said that after
making the payment appellant went away, while this Lakhi Ram remained there near the injured
Mange Ram, and sent the Chowkidar to call the Police Sub-Inspector from the polling station.

41. PW 12 Dharam Singh was admittedly a supporter of the petitioner and worked as the latter's
polling agent. There were two polling booths located at Mandaura, one for the electors of Mandaura
and the other for those of Turakpur and a part of Mandaura. These booths were at a considerable
distance from each other. Dharam Singh acted as a polling agent of the petitioner at the polling
booth meant for the electors of village Mandaura.

42. 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.

43. Dr. Singhvi contends that originally in the petition PWs Amir Singh and Lakhu Bairagi were not
mentioned as witnesses of the carriage of voters, but only of the settlement and the payment of Rs.
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.

44. As against this, Mr. Iyengar submits that the settlement and payment in the context of which the
names of PWs 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.

45. In para 7(iii) of he petition after stating inter alia that the truck was engaged in the free
conveyance of voters, it is pleaded :

                  The respondent No. 1 and Lakhi Ram son of Hira .... compounded with the injured
                  Mange Ram and his sons and daughters and agreed to pay his survivors Rs. 10,000 in
                  the presence and through the mediation of Sarvshri Babu Randhir Singh, Amir Singh
                  alias Mir Lamberdar .... and Lakhu Bairagi of village Mandaura and paid Rs. 7,000 at
                  the spot.

In the verification, it is stated :

                  Para 7, sub-paras (i) to (vi) are true to my information derived from Dharam Singh,
                  ex-Sarpanch, Mandaura, Bule Ram, Member Panchayat of Khurampur and Chander
                  Bhan Sarpanch of Garhi Bala and para No. 10 through Babu Randhir Singh and Mir
                  Singh Lamberdars.

The name of Lakhu PW does not figure in the verification. In the affidavit also, PWs Randhir
Singh, Amir Singh and Lakhu are mentioned as witnesses of the settlement and the payment of Rs.
7,000 to the heirs of Mange Ram and Dharam Singh as informants of all the facts alleged in para 7
and 10 of the petition. The aforesaid Bule Ram and Chander Bhan have not been examined.

46. In the list of witnesses, PWs Dharam Singh, Babu Randhir Singh, Amir Singh Lamberdar and
Lakhu Bairagi are mentioned at Sl Nos. 4, 5, 6 and 7, respectively. Against their names, it is written
: "Will depose regarding corrupt practice of hiring truck No. 5167, and using as free conveyance of
voters". None of these witnesses has deposed to the fact of hiring of the truck. PW Babu Randhir
Singh does not give any direct evidence in regard to the carriage of voters in the truck. PW 12
Dharam Singh does not depose with regard to the visit of the truck at about 10-30 a.m. or the
accidence in which the truck was involved. He claims to have seen the truck, only at 8 a.m. coming
with a load of voters from Turakpur. Thus, there has been some readjustment of the roles of these
PWs. It is not as pronounced and dramatic as in the case of Tara Chand and Bhagwan Singh. By
itself, this circumstance may not be a ground for rejecting their testimony. Nevertheless, it casts a
duty on the Court to scrutinise their evidence with more than ordinary care.

47. PW 12 Dharam Singh is an ex-Sarpanch and, as such, appears to be an influential person of
Mandaura. He is admittedly a worker, supporter and polling 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 PWs 9, 10 and 33 has to be appreciated
in this perspective.

48. The evidence of Dharam Singh, besides being strongly partisan in character, appears to be
otherwise unreliable. He wants to have it believed that while he 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 story suspect.

49. Further point to be noted is that material witnesses from village Turakpur, who could be entirely
independent and free from the influence of Dharam Singh, have been withheld by the petitioner.

50. PWs 9, 10 and 12 have named thirteen persons who, according to them, were voters and had
been brought in this truck from Turakpur. Thus PW 9 named Ghasi and Sheo Ram; PW 10 named
Sis Ram, Balbir, Ram Singh, Ram Chand and Bharta. None of these was examined by the petitioner.
One of them, Prem Raj, examined as RS 4 by the appellant, categorically denied having travelled in
the truck on the polling day. He swore that he had gone on a cycle and not in a truck, to cast his vote
at the polling station Mandaura.

51. Another curious feature which casts a speck on their evidence, is, that although they were
supposed to be witnesses of the same fact - at least with regard to the first trip of the truck - not a
single person out of the aforesaid thirteen has been named in common by these PWs.

52. Although it has not been affirmatively established that PW 9 and 10 are partisans of the
petitioner, yet some significant indications are available in their evidence and demeanour, as
manifest therefrom, hat they are not altogether independent and disinterested witnesses. An attempt
was made in cross-examination to show that PWs 9, 10, 12 and 33 constitute one group or faction
which has in all the elections since 1952 been opposing the appellant, and in the 1972 elections they
had supported Congress (R) and its candidates, Ch. Jaswant Singh (petitioner), Hukam Singh and
Rajinder Singh who were close associates of each other.
53. To most questions PW Amir Singh did not give prompt and straightforward answers. In an
effort to evade, parry and hide something he indulged in equivocation. For instance, he was asked
whether the appellant had in 1952 fought the election against Ch. Tikka Ram, a co-villager of the
witness. As the note of the learned Judge shows, he took a few seconds to think over the matter,
gave a smile, and then said : "I do not remember". He was then asked whether the appellant had
been elected as M.L.A. in the post-Independence election. At first flush he came out with an evasive
reply, even to such an innocuous question and said : "I do not have any idea about it". On further
questioning, the witness had to admit that in the elections of 1962 and 1967, the appellant was
pitched against Hukam Singh and that the witness had supported Hukam Singh in both those
elections. The witness was thereafter questioned about his acquaintance with the petitioner. In
keeping with his evasive attitude, he first had the temerity to say "I do not know the petitioner". He
then hastened to couple this reply with the protest : "I did not support anyone in the election in
question". On further hammering, however, the witness qualified his earlier version and had to yield
: "I have been knowing the petitioner by face, for the last five or six years". The witness admitted
that his nephew, Randhir Singh, PW 23 was related, through his maternal uncle to Ch. Lehri Singh
whose nephew, Ch. Rajinder Singh, was fighting the election from the adjoining constituency in
March, 1972. The witness was asked whether the Ch. Rajinder Singh was contesting the election as
a candidate of the Ruling Congress. At first, he unwittingly replied in the affirmative. On second
thought he tried to wriggle out of the answer by saying : "I know that he was a Congress candidate
but I do not know as to which Congress had set him up". He tried to feign ignorance even of the fact
that the petitioner was contesting the election on Congress (R) ticket and wanted to have it believed
: "I do not know the name of the party which had set up the petitioner as a candidate". Under the
force of further cross-examination, however, he conceded that, so far as he was aware the appellant
and the petitioner, only, were rival candidates in the election in question, and that on the ballotpaper
he had seen only two symbols, one of cow and calf and the other of spinning wheel. He admitted
that Professor Sher Singh and Ch. Razik Ram had, as rival candidates, contested the election to
Parliament in 1971 and that he was a helper and supporter of Prof. Sher Singh. To show that the
witness was under the influence of the petitioner, it was suggested to the former that when he came
to appear as a witness in this case, he had stayed at Chandigarh for four days in the bungalow of the
petitioner. He emphatically denied it, and asserted that he was staying at Chandigarh for the
preceding three days with "some boys of his village in hostel". Asked about the particulars and
residence of those 'boys', the witness said "The name of that boy is Raju but I do not know the name
of the class he is studying in or the sector in which he is living". This miserable failure of the
witness to particularise the place of his stay and his host or hosts at Chandigarh, renders probable
the alternative suggestion put to him by the appellant.

54. Lakhu Ram, PW 10, was examined on the day following the cross-examination of PW 9 to
establish his interestedness in the petitioner. PW 10 was therefore, better prepared to meet the
efforts of the appellant directed towards that end. PW 10 refused to divulge any such fact even at the
risk of taking a stand verging on absurdity. He first hit back by saying 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.

55. Another peculiar feature of the evidence given by PW 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 large levelled by the petitioner. Their version with regard to this matter is
strikingly similar, if not absolutely identical. Thus Amir Singh PW 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 foot at about 8.15
                  a.m. I returned from my house to the chabutra at about 10.30 a.m.

Similarly PW 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. I had gone to give water to my bullocks but I cannot fix the time precisely
                  and similar is my answer in regard to my taking the food. After taking my food I had
                  come out and started smoking the Hukka. I cannot say at what time I started smoking
                  the same. I recollect two points of time, the one being 7. 45 and the other at 10.30
                  a.m.

56. Amir Singh is an educated person and Lakhu an illiterate rustic. Ordinarily, it would be difficult
for any two witnesses of the same occurrence, with diverse backgrounds of education and
experience, to attain such unison in their notes without their having been carefully attuned and
instructed by the same maestro.

57. Furthermore, these witnesses in their anxiety to go whole hog to support the charge, are prone to
exaggerate matters. In regard to the bringing of voters in this truck at about 10.30 a.m., they have,
more or Iess, drawn upon their imagination. Both went to the scene after - may be shortly after - the
accident on hearing noise and commotion. Amir Singh says, when he reached the spot, the driver
had already disappeared and the passengers had also got down from the truck and were on their way
to the polling station. The version of Lakhu (who claims to have reached there simultaneously with
PW 9) is that when he went to the scene, Mange Ram Injured was lying on one side of the truck,
and the broken branch on the other; several persons had alighted from the truck. The driver ran
away after making an enquiry from the injured. In cross-examination, the witness, improving upon
his version in examination-in-chief, stated : "When I reached the spot I saw some of the voters had
already alighted, whilst others ....... were in the course of alighting". Thus PWs 9 and 10, were, if at
all, post-accident witnesses. Still, an anxiety on their part to pose as full-fledged eyewitnesses of the
accident by stretching their imagination, is discernible.

58. How deeply Amir Singh, PW 9, was committed to support the petitioner is demonstrated by
what he said regarding the apparent ownership of truck No. HRR 5167, in cross-examination.
Kanwal Singh, Rw 2, swore that this truck was his exclusive property and that his father had no
interest or share in it. The witness purchased it for Rs. 13,000 in 1968 from one Asa Nand of
Sonepat. Consequently, since October 14, 1968, the truck stood registered in the records of
Transport Department, in favour of the witness 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.
59. Lakhi Ram, RW 2, fully corroborated his son, Kanwal Singh, in regard to the ownership of this
vehicle. In cross-examination of RW 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 petitioner's side alleged that this truck
belonged to Lakhi Ram son of Hira of Turakpur. Amir Singh replied; "I did not notice its
registration number but if noticed the name of Lakhi Ram written as its owner". This was blatant lie.
The witness has thus betrayed his true colour. He is of a type who in blind loyalty and support to the
case of the party calling him, would not hesitate to tell lies even in regard to patent facts.

60. The charpoi for the removal of the injured from the accident-site was brought from a nearby
house. Admittedly, the houses of Sardar Singh and Ram Kishen are near the spot. None from those
houses has been examined.

61. On one vital point, the witnesses sharply contradict each other. Amir Singh, being educated, is
the cleverer of the two. He stated (in examination-in-chief) that sometime after the removal of
Mange Ram injured to the house of Randhir Singh, the appellant and Lakhi arrived there. In direct
contradiction to this, in cross-examination, Amir Singh said : "Respondent No. 1 stayed for about 15
to 20 minutes in the baithak of Randhir Singh where the compromise was arrived at. I had not seen
Lakhi Ram with him. I had not noticed Lakhi Ram there". This attempt to keep out Lakhi Ram out
of the picture, and to depict the appellant as one of the compounding parties, as will be presently
discussed, appears to have been deliberately made to mould and adapt the evidence in manner suited
to the charge as laid in the petition. Suffice it to say here that this version is diamatrically opposed
to that of Lakhu PW 9 and Randhir, PW 33. PW 9 says that Lakhi Ram, owner of the truck, was
with the appellant when the compromise was made and Rs. 7,000 were paid in pursuance thereof by
the appellant. Lakhu added : "Lakhi Ram remained there whilst respondent No. 1 went away
therefrom".

62. From the above discussion, two things emerge quite clear. Firstly, that there is nothing in the
statements of PWs 9, 10 and 12 to show that the voters, if any, conveyed in the truck, HRR 5167, to
Mandaura, were carried free of cost to themselves. Secondly, even in regard to the alleged carriage
of voters from Turakpur to Mandaura in this truck and the payment of compensation by the
appellant to the daughter of Mange Ram, the evidence rendered by these witnesses was not so
unimpeachable, unblemished and disinterested that it could be safely accepted without corroboration
from independent sources. We have therefore, to see, whether such corroboration is coming forth
from the statements of Randhir Singh PW 33, Ram Singh PW 1, Smt. Parmeshwari PW 25 and PW
2, Moti Singh or any other evidence on record.

63. PW 33 Randhir Singh was, at the material time, employed at Delhi in the Central Water and
Power Commission, but on the polling day he was in Mandaura. He is the nephew of Amir Singh,
PW 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 Mange Ram was
brought to his house in an injured condition at about 10.30 a.m. by Amir Singh, PW 9 and Lakhu
Bairagi PW 10. The witness immediately called Smt. Sunder, the nurse from the government
dispensary. The nurse gave a couple of injections to Mange Ram and dressed up his head injuries. A
large number of persons collected at his baithak. The crowd included two sons and two daughters of
Mange Ram. The witness further stated that Ch. Razik 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 was 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, Rs. 7,000 were paid in cash by the appellant to Parmeshwari, the eldest daughter of
Mange Ram, and the balance was to be paid subsequently. The people collected there were saying
that since the owner of the truck was a supporter of Razik Ram, that was why the money was being
paid by the latter. The people were also saying that the truck was bringing voters from Turakpur
when the accident took place. In answer to a court question, the witness expressed his inability to
name the persons who were saying that the truck was bringing voters from Turakpur. After the
payment of the sum of Rs. 7,000, Amir Singh Lamberdar sent the Chowkidar to inform the police.
After the appellant and Lakhi Ram had gone away, the Police Sub-Inspector came there and
recorded the statement of Mange Ram injured. Mange Ram told the Sub-Inspector that the matter
had been amicably settled. The witness asked the Sub-Inspector to arrange for the removal of
Mange Ram from his baithak. Mange Ram was accordingly taken away at about 3 or 4 p.m. in a
cream coloured car arranged by the party of Ch. Razik Ram.

64. In cross-examination, Randhir Singh said that apart from the witness, a large number of persons
including Risal Singh, Jai Lal, Lakhu, Kidarey, Bhogana, Narain Singh, helped in bringing about the
settlement, and that the money was also paid by the appellant to the daughter of Mange Ram, in the
presence of that crowd. Eight or ten persons from that crowd were present inside the baithak when
the Police Sub-Inspector arrived there. The witness admitted his relationship - though farfetched -
with Ch. Rajinder Singh, ex-Minister. He, however, expressed ignorance as to whether Ch. Rajinder
Singh, Ch. Hukam Singh and the petitioner were members of the same political party in Sonepat
district. He however, conceded : "I know all those these persons. I was present in the High Court
yesterday and Ch. Hukam Singh was also present. I did not, however, meet Chaudhry Rajinder
Singh in the High Court, yesterday". He denied that he and his family members have been
traditionally opposed to the appellant in the elections and helping Ch. Hukam Singh. He also
emphatically denied that he was giving false evidence on account of his interest in the petitioner.

65. A careful scrutiny of the statement of Randhir Singh shows that his denials and protests
notwithstanding, like his uncle Amir Singh PW 9, he (PW 33), too, is not an entirely disinterested
witness. He was not an eyewitness of the accident or 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 the 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.

66. The witness has disclosed the name 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.

67. Thus, the evidence of Randhir Singh does not stand on a better footing than that of PWs 9 and
10. Not being itself flawless, it cannot lend the requisite corroboration and assurance to the
testimony of PWs 9 and 10.

68. Now we turn to the evidence given by Ram Singh PW 1. He is a Sub-Inspector of Police. On the
polling day he had gone to polling station Mandaura to check the police personnel posted there. At
about 12 noon, he was informed by the village Chowkidar that Mange Ram had sustained injuries in
a truck accident. Witness thereupon went the baithak of Randhir Singh and recorded the statement
of Mange Ram injured. Ex. PW 1/1, is a copy of that statement. It reads as follows :

                  Today I was coming from village Turakpur to my village in the tool box of a truck in
                  which many persons had boarded who were to cast their votes. I came from Kaloi,
                  the village of my sister. At about 10.30 a.m. when the truck reached Mandora, near
                  the crossing of the Mata (place of worship) a cycle-wala was coming from the front
                  side. The truck driver tried to save him. At that time the truck was moving at normal
                  speed. While saving him the truck was taken out through two neem trees and a
                  branch of a nee tree from above got broken, struck the tool box and got separated
                  from the nee tree and struck my head and nose. My feet and chest got scratch marks.
                  The front right side of the truck struck the neem tree. Lakhi Bairagi Mir Lamberdar
                  and Chowdhri Randhir Singh have brought me to the baithak of Randhir Singh.
                  There is no negligence on the part of the driver. I have heard my statement and the
                  same is correct.

# Sd/- Mange Ram aforesaid with his thump mark.##

69. The material part of the note of his proceedings made under the statement Ex. PW 1/1, by the
witness reads :

Under these circumstances no prima facie offence cognisable by police is made out. The accident
has taken place perchance. There is no carelessness or negligence on the part of the driver of the
truck. Hence the Moharrir should enter the report in the Roznamcha.

# Sd/- Ram Singh Sub-Inspector 11.3.72.##

PW 1 Ram Singh further stated :

                  I saw that truck ..... parked a little ahead of the two neem trees and noticed that its
                  tool-box had been broken. The number of truck was HRR 5167. It belonged to Lakhi
                  Ram of Turakpur. The polling booth at Mandora was about two hundred yards ahead
                  of the site of the accident. Two daughters of Mange Ram including Parmeshwari, two
                  sons of Mange Ram, Mir Singh Lambardar, the Chaukidar, Lakhu Bairagi and the
                  owner of the truck had all collected at Randhir Singh's baithak before I reached there
                  and 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 front of some
                  payment which had been made by Lakhi Ram owner of the truck and others to
                  Mange Ram and his dependents.

70. Ram Singh's statement is 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 him. Nor did he examine and record (Ex. PW 1/1 and PW 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
occurrence, his version is hopelessly self-contradictory. In examination-in-chief (quoted above) he
said that Mange himself had stated about this "amicable settlement". In cross-examination, he
discounted it, and said : " Nor did I record the statement of any of his daughters about the
compromise though she did tell me that a compromise had been made". Without enquiry and
caution, he tried to endorse the version of the interested witnesses (PWs 12, 3 and 10) that this truck
belonged to Lakhi Ram of Turakpur. In cross-examination, he admitted that he did not inspect the
Registration Book, the Log Book or other documents relating to the truck. He however, put up the
excuse that he could not inspect these documents "because there was nobody in the truck and the
driver had run away". The excuse is hardly convincing. He forgot that earlier in examination-in-
chief he had said that Lakhi Ram, the alleged owner of the truck was there. Why did he not ask for
those documents from Lakhi Ram ? Further, it is difficult to believe that a police officer of his rank
and experience would not in such a case, care to contact or make enquiries from the drivers of the
truck involved in the accident, much less would be reach a finding that no cognizable offence had
been committed without examining the driver. Kanwal Singh RW 2, the driver has categorically
stated that he was allowed to go by the Sub-Inspector only after the letter was convinced after
making the enquiry from Mange Ram that he (RW 2) was not at fault. We will discuss Kanwal
Singh's statement, in detail, later. At this place it will be sufficient to say that Kanwal Singh's
presence before the Sub-Inspector in the baithak of Randhir Singh, at the relevant time, cannot be
doubted. The existence of this fact accords not only with probabilities, but also with what PW 1 had
himself stated earlier in the portion quoted above. It may be recalled that in examination-in-chief,
Ram Singh had stated that the owner and the driver had compounded the matter before his reaching
there. He stated so in the contexts of the preceding sentence in which he had said, that among
others, the owner of the truck, was still there in the baithak when the witness went there (at about 12
noon). He did not then expressly say that the driver was not there. If the driver was admittedly there
shortly before the arrival of Ram Singh, 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.

71. 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 PWs 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 PWs in regard thereto.

72. Even so, Ram Singh's statement regarding these facts which, as he says, were derived from
Mange Ram and/or his daughter, Smt. Parmeshwari is on the crucial points inconsistent with the
story told by PWs 9, 10 and 12. Ram Singh does not say that anyone present there had told him
about the appellant being in any concerned in the settlement and payment of compensation for the
injuries of Mange Ram. Ram Singh twice said in clear terms that this settlement, according to the
information given to him at the baithak, was only between Lakhi Ram, the owner and the driver of
the truck, on one side, and Mange Ram and his dependents on the other. After deposing to that
effect, in examination-in-chief, Ram Singh added : "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". Two points in respect of this
statement are noteworthy. Firstly, Ram Singh spoke about this payment in the context of the parties
to the settlement. In that context, the words "and others" used by him in conjunction with "Lakhi
Ram, owner of the truck", do not take in "Ch. Razik Ram". At the most, they would mean "and the
driver etc.". Secondly, the clause "but I came to know that the settlement was in the form of some
payment", in the context of the preceding sentence, stands in contradistinction this clause indicates
that this information was given to him presumably by persons other than Mange Ram and his
children, who were present there. PWs Randhir Singh, Amir Singh and Lakhu Bairagi were,
according to PW 1, then present in the baithak. Failure to these PWs to tell the Police Sub-Inspector
there and then that the appellant had shortly before, visited the place, settled the matter and made
the payment, necessarily raises the inference that nothing of this kind was done by the appellant in
their presence, and the story in which such a role has been assigned to the appellant was developed
by these witnesses subsequently. Furthermore Ram Singh does not say that he saw any flag bearing
any election symbol, on the truck when he inspected it. Thus on this point he does not furnish any
corroboration of PWs 9, 10 and 12.

73. The net result of the above discussion is that the evidence of Ram Singh, PW 1, does not
confirm if it does not directly contradict the account given by PWs 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.

74. The statement of Ex. PW 1/1 of Mange Ram, recorded by Ram Singh, is however admissible
under Section 32, Evidence Act 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.

75. According to PW 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. PW 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 accidence at about 10.30 a.m. Kanwal
Singh, RW 2, supports this version of Mange Ram. Mange Ram's daughter Parmeshwari also
confirmed it. She testified that her father had gone to village Kaloi which is 14 miles from
Mandaura, three days before the poll. He was absent from Mandora for these days and was returning
home when he received these injures in the accident. Contradicting PW 10, directly, she said that
her father had not earlier canvassed during the election in the company of Lajya Ram.

76. Thus Ex. PW 1/1, implicitly discounts and improbabilises the assertion of PW 10, that Mange
Ram was working in the election for the appellant or was escorting and conducting the voters to
Mandaura when he received the fatal injuries in the truck accident. However, it cannot be gainsaid
that in one material particular, Mange Ram in his statement, Ex. PW 1/1, corroborates PWs 9 and
10, inasmuch as he has stated that "many persons" who were to cst their votes, had boarded the
truck in which he was coming to Mandaura. It will be seen that this fact alone is not sufficient to
establish the charge under consideration.

77. We will now examine the statement of Moti Singh PW 2. At the material time, he was an
Inspector of Police Incharge C.I.A. Rohtak. This is how he come into the picture.
78. One Rasal Singh of village Mandaura is said to have submitted a application, dated April 20,
1972 to the Superintendent of Police, Rohtak, expressing dissatisfaction against the investigation
conducted by the police in the truck accident-case. Without specifically naming Sub-Inspector Ram
Singh, it was "complained" that he had got effected a compromise "in connivance with some
persons of the village"; that Mange Ram injured, being unconscious, did not make any statement
"but the police itself was getting his thumb-impression affixed on the police proceedings by holding
his hand, and other people of the village were making their statements, from the side of Mange Ram
deceased". It is also said therein :

                  At the time of the above proceedings, Sarvshri Ram Narain Contractor, Ram Parshad
                  son of Rattan, Rasal Singh, member Panchayat son of Rati Ram, Randhir Singh son
                  of Mange Ram, Amir Singh Lambardar, Dharam Singh, Harnarain Lambardar
                  (Member Panchayat till now) etc. were present at the spot. The death of Mange Ram
                  deceased took place in Safdarjang Hospital, Delhi ...... on March 12, 1972.

79. It is further said :

                  All the children of Mange Ram deceased are deprived of the 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".

80. This "complaint" was marked by the Superintendent of Police to Inspector Moti Singh on May
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 Lal
Brahmin, and Smt. Parmeshwari, daughter of Mange Ram. Moti Singh had testified that Ex. PW 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.

81. The statement Ex. PW 2/2 runs thus :

                  On the 11th March, 1972 votes were to be cast in our village. My father was
                  supporter of Chowdhri Razik 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 behalf of Chowdhri Razik Ram. The truck was coming on the pucca road outside
                  the village. There were two, three neem trees by the side of the road. The head of my
                  father struck against them. He received grave injuries. Chowdhri Razik Ram sent my
                  father Mange Ram to Safdarjang Hospital in his car where he died the next day. After
                  that Chowdhri Razik Ram paid me Rs. 8,000 and promised to pay the expenses of the
                  marriage of my younger sister. He also promised go get my brother employed.
                  Chowdhry Razik Ram got my brother Suraj Mal employed as a water-carrier at the
                  Veterinary Hospital Mandaura. My uncle (father's elder brother) Dharma son of
                  Magha has gone to Hussainpur in connection with the engagement of my younger
                  sister. Now there is no doubt about the death of my father.

# Thumb impression of Parmeshwari.AttestedSd/- Moti Singh, Inspector (in English) 11.6.72.##
82. After this, the Inspector reported to the Superintendent of Police "that Risal Singh had disowned
the complaint and had said that he had never made it and that the commission of no cognisable
offence had been proved and the death of Mange Ram appeared to have been caused as a result of a
pure accident". According to Moti Singh's own admission "not further action" was taken by him on
the purported complaint of Risal Singh.

83. In cross-examination, Moti Singh disclosed that he first went to the house of Pandit Misri Lal at
Mandaura and sent for Risal Singh there. It was suggested to him that it was Dharam Singh (PW 12)
who had taken him to Parmeshwari's house. Witness protested by registering a denial. Questioned
further, he had to admit that Dharam Singh ex-Sarpanch of village Mandaura met him in the
mohalla in which Parmeshwari was residing. It was put to the witness that Parmeshwari had never
made any statement before him and that he had recorded her purported statement, Ex. PW 2/2, at the
instance of Dharam Singh. He denied that suggestion also. These protests and denials were too
fragile, thin and transparent. One could easily see through them the truth that his pilot and 'guide' in
these proceedings was none other than Dharam Singh (PW 12), the chief confident and star partisan
of the petitioner.

84. To quote Moti Singh's own words :

                  The subject-matter of my enquiry was whether the local police had or had not
                  properly investigated into the case 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 Ex. PW 2/1. I did not go to the hospital where 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 Mandora except the three persons already named by me.

85. 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, if so, whether any cognisable offence
had been committed. In case the commission of any cognisable offence was disclosed, he should
have taken to task Sub-Inspector Ram Singh or at least called 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, particularly those who were named in
the complaint. But according to his own showing, the Inspector did not do any of these things which
he should have normally done. He made the above-quoted admission in a somewhat unabashed
manner.

86. From what has been extracted above, it will not be wrong to say that the preparation of this
document, Ex. PW 2/2, was the "be-all" and "end-all" of this pretence of an enquiry. Whether it was
the result of 'misguidance' by Dharam Singh (PW 12) or otherwise, the fact remains that the sole
purpose this enquiry purported to serve was to create evidence for the purpose of this petition. The
ostensible author disowned it. The whole thing appears to have been conceived in a shady setting
highly redolent of suspicion and mystery. Risal Singh, the apparent complainant was contacted first,
and Smt. Parmeshwari later on. From the suggestion put to Inspector Moti Singh, in cross-
examination, it seems that the Inspector was, after Risal Singh had denied having made the
complaint, but to return disappointed, but Dharam Singh PW 12 then threw away the mask and
revealed himself in the role of the complainant. The Inspector, also, either willingly or unwittingly,
allowed himself to become his tool and to be guided or misdirected by him (Dharam Singh). A
perusal of the statement Ex. PW 2/2 shows that particular attention was paid to bring out these facts,
prominently, in this alleged statement of Smt. Parmeshwari, which had a material bearing on the
ingredients of the charge under consideration, while the basic facts pertaining directly to the truck
accident, and the oblique allegations against Sub-Inspector Ram Singh were left either completely
unenquired, or in relative obscurity.

87. Smt. Parmeshwari was examined as PW 25 by the petitioner. She completely disowned the
statement, Ex. PW 2/2. The petitioner cross-examined her with the permission of the Court. She
stated that about there months after the death of her father Mange Ram, a police officer came to
record her statement. He was accompanied by Dharam. But in her presence that officer did not
record any statement. He made no inquiry about the manner of her father's death. The officer
obtained her thumb-impression on a blank paper with the representation that she would get some
money from the petitioner. The officer did not mention the amount that would 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 (Ex.
PW 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 upto Mandaura.

88. The learned trial Judge has held :

                  The manner in which Parmeshwari prevaricated in the witness-box (as is evidence
                  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 supported the case of
                  the petitioner. The note made by Sandhawalia, J. on October 12, 1972, regarding the
                  request made by the Counsel for the petitioner (wherein it was stated that
                  Parmeshwari was sitting outside the Court in the car of respondent No. 1) is also very
                  significant in this respect. I have no hesitation in believing that Inspector Moti Singh
                  recorded her statement PW 2/2 correctly and the same was read over to her and was
                  thumb-marked by her.

89. With regard to her confirmation of Mange Ram's statement about his getting into the truck on
his way from Kaloi to Mandaura, the learned trial Judge said that this statement was got recorded by
Mange Ram at the instance of the appellant in order to "exculpate the respondent (appellant) from
any possible liability that might have arisen on account of the accident of Mange Ram or his heirs
were later to claim that he died while working for the respondent.

90. In reaching the above finding, in our view, the learned Judge clearly erred. There were no
circumstances on record to show that she had been coached during the lunch interval by someone in
the interest of the appellant. It was in examination-in-chief, much before the lunch-break, that she
had stated that her thumb-impression was taken on a blank paper by Moti Singh and she had never
made that statement. Her statement to the effect, that Mange Ram had gone to village Kaloi three
days before the poll and was returning in the truck when the accident occurred, was also made
before the lunch-break. Indeed, her entire statement appears to have been recorded before the lunch-
break. She had practically said everything she had to say before she was cross-examined by Mr.
Bindra Counsel for the appellant. It was however put to her by the petitioner's Counsel in cross-
examination, that after arrival in Chandigarh she met Ch. Razik Ram and that on the preceding day
at about 3 p.m., she was sitting in the white car of Ch. Razik Ram outside the court premises. She
denied the suggestion. The note of Sandhawalia, J., which has been referred to by the learned trial
Judge, was recorded on October 12, 1972 when PW 14 Richchpal Singh was being examined.
Parmeshwari was not examined on that day but on the following day. This note is to the effect :

                  At this stage Mr. Bakhtawar Singh, learned Counsel states that Smt. Parmeshwari one
                  of the witnesses summoned by him is present outside in the car of respondent No. 1.
                  Counsel has requested that an official of the Court should go out to ascertain this
                  fact. I am afraid no such roving enquiry is possible.

91. 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.

92. Surrounding circumstances apart, the document E. PW 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. PW 2/2
was written by him to the dictation of Parmeshwari, and that after ascribing 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 these English words were uttered by the deponent. It is difficult to
swallow this tall and sweeping assertion. Parmeshwari is an illiterate, rustic woman. Very truthfully,
in cross-examination, she said that she did not know what is meant by the words "supporter",
"veterinary hospital", and "water-carrier". Evidently, these words were inserted by Moti Singh either
on his own, or at the instance of Dharam Singh, the spot-mover of the gear.

93. We have carefully examined the original, Ex. PW 2/2. The ink of the thumb-impression appears
to be darker and different from that used in executing the body-writing.

94. The obtaining of the thumb-impression of Parmeshwari the alleged deponent on the statement in
question, was itself a very unusual act on the part of the investigating police officer. Under Chapter
(sic Part) V of the Code, a police officer is empowered to investigate into these classes of cases.

                  (a) Where first information under Section 154 is received relating to the commission
                  of a cognisable offence;

                  (b) Where information is received, under Section 155 relating to the commission of a
                  non-cognisable offence and an order for investigation in respect thereof has been
                  obtained from the competent Magistrate;

                  (c) Where information is received of a suicide or as to the killing of a person by
                  another or by an animal or by machinery or by accident or having died under
                  circumstances raising a suspicion that an offence has been committed. Such an
                  investigation is primarily directed to ascertain the cause of death, falls under Section
                  174, and is called inquest.

95. Inspector Moti Singh did not come in motion by any of these first two modes. It was not a case
under (a) because no F. I. R. under Section 154 had been registered. It did not fall under (b) because
no order of the Magistrate to investigate the non-cognizable case with regard to which Ram Singh
got the information entered in the Diary of the police Station under Section 155 was obtained. Class
(c) could possibly cover the case, but Moti Singh did not follow the procedure laid down even in
Section 174.

96. While it is true that the receipt and registration by any of an F.I.R. is not the sine quo non to the
setting in motion of the machinery of criminal investigation, the investigating officer must follow
the procedure laid down in Chapter (sic Part) V. Section 162 in that Chapter, provides inter alia that
no 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 witness recorded by the investigator during the
inquest under Section 174 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.
State of U. P. (1959 Supp 2 SCR 875 : AIR 1959 SC 1012 : 1959 Cri LJ 1231)). In contravention of
this salutary provision, the Inspector got the record Ex. PW 2/2 thumb-marked by Parmeshwari.
Obviously, the object was twofold : Firstly to tie her down to the statement as incorporated in Ex.
PW 2/2; and secondly, to make it appear to the Court that it was her genuine statement as it had
been 'authenticated' by her thumb-mark.

97. Assuming Ex. PW 2/2 was not hit by Section 162, Cr.P.C. 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 Rs. 7,000 as compensation for the
injuries received by Mange Ram in the truck-accident. At the most, it could be used only as a
previous statement to corroborate or contradict her at the trial. It could not be validly used for the
purpose of corroborating PWs 9, 10, 12 and 33.

98. It is interesting to note that even this 'statement' Ex. PW. 2/2 conflicts with the story as
propounded by PWs 9, 10 and 13 at the trial, in material particulars. According to Ex. PW 2/2, the
death of Mange Ram took place in Safdarjang Hospital, New Delhi, and the case compensation was
paid by Ch. Razik Ram "after that" death. Contrary to this PWs Randhir Singh, Amir Singh and
Lakhu have stated that the payment was made after consultation, among others, with Mange Ram
when he was very much alive and fit to negotiate the settlement himself in the baithak of PW
Randhir Singh, within an hour or so of the accident. Further, according to Ex. PW 2/2, the amount
paid was Rs. 8,000 and there was a promise by the appellant that he would pay more in the shape of
meeting the expenses of the marriage of Parmeshwari's sister. The statement Ex. PW 2/2 does not
fix this promised amount at any particular figure. Nor does it indicate that the total compensation
agreed to be paid was Rs. 10,000. As against this, PWs 9, 10 and 33 say that the cash paid was Rs.
7,000 and the balance promised to be paid was Rs. 3,000 cash. Again, Ex. PW 2/2 give the
impression that Parmeshwari did not accompany her father in the car to Delhi. Therein, she is
shown as stating : "Now there is no doubt about my father's death". On this point, also, Ex. PW 2/2
runs counter to the statement of PW 9 who maintains that Parmeshwari and her brother had
accompanied the injured Mange Ram in the car.

99. Looked at from the above angle, also, Ex. PW 2/2 far from supporting, scuttles the story of PWs
9, 10, 12 and 33 by putting the linchpin out of it.
100. Not less important is the time when and how this document came into existence. The election-
petition was filed on April 27, 1972. The so-called complaint by 'Risal Singh' "made to the Police
Superintendent" is dated April 20, 1972. But the mere putting of this date does not assure that it was
prepared on that date because it was not presented to the Superintendent before May 5, 1972 when
he marked it to Inspector Moti Singh for necessary action. The latter did not do anything to comply
with the Superintendent's order for another five weeks. It was only June 11, 1972, that he want to
Mandaura and made this so-called enquiry and recorded Ex. 2/2. The "complaint" Ex. PW 2/1
although dated April 20, 1972, was no mentioned in the list of reliance filed by the petitioner. The
complaint Ex. PW 2/1, the statement Ex. PW 2/2 and even its copy PW 2/1 were produced in the
trial Court for the first time on October 10, 1972, by Moti Singh when he was in the witness-box.
An objection was taken to the later production of these documents. But it was overruled.
Nevertheless, the fact remains that the document Ex. PW 2/2 was conceived and brought into
existence pendente lite and produced in Court about six or seven months after the filing of the
election-petition.

101. The circumstances noticed above, in their totality, irresistibly lead us to the conclusion that the
document, Ex. PW 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.

102. The stage is now set for examining the evidence witnesses produced by the appellant, in
rebuttal on these issues. They are Kanwal Singh, RW 2, Lakhi Ram RW 4 and Dube Singh, RW 5.

103. We have alluded to Kanwal Singh's statement already in connection with the ownership of this
truck (No. HRR 5167). In regard to the use of the truck on the polling day, Kanwal Singh said :

                  My truck was not used for transporting any voters on behalf of respondent No. 1
                  from Turakpur to Mandaura .......... on March 11, 1972 I loaded sand in my truck
                  from Fazalpur and left that place at about 9 or 10 a.m. for Turakpur. The sand had to
                  be unloaded in the school building at Turakpur where construction work was going
                  on. I know Mange Ram of village Mandaura. He met me outside the school building
                  after I had unloaded the sand there. He stopped me and wanted a lift upto to
                  Madaura. He got into the truck from the rear. When I reached Mandaura I suddenly
                  swerved my vehicle on one side in order to save a cyclist. In so doing I passed from
                  under a neem tree. A branch of that tree struck Mange Ram and he fell in the truck.
                  He got down from the truck as he appeared to have received minor injuries. I took
                  him to the baithak of one Randhir which was close by. His wounds were dressed at
                  that place. After about fifteen minutes the Thanedar (Sub-Inspector of Police)
                  reached there. Neither respondent No. 1, nor my father Lakhi Ram arrived at that
                  place. My truck was not displaying the flag of any candidate. The Sub-Inspector of
                  Police asked Mange Ram orally as to what had happened, but did not record his
                  statement. Mange Ram told the Sub-Inspector that I was not at fault and that while
                  trying to save a cyclist I passed from under the neem tree which hit him accidentally.
                  The Sub-Inspector thereupon told me to go away as I was not at fault. I then went to
                  the school building in Mandaura and cast my vote. After that I went away to Sonepat.
                  I also took another trip of sand from Fazalpur to Turakpur on that day. Six labourers
                  were in my truck on the occasion of both the trips.

104. In cross-examination Kanwal Singh said that he had purchased the truck of Rs. 13,000 from
one Asa Nand, and that the money was supplied to him by his grandfather. He also admitted that he
had not given up his share in his father's property. He further said that the sand was being supplied
to one Silak contractor 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 his truck on the polling day. He asserted that he did not give lift in his
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.

105. 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 supply of sand to Silak
contractor has been produced. In this connection it was also observed that if the truck had not been
full of voters. Mange Ram would not have been sitting on the roof of the cabin of the truck. Kanwal
Singh's version that Mange Ram was inside the truck was found to be untrue. With regard to the
ownership of the truck, while the real owner was his father, Lakhi Ram. This finding was
principally based on the admitted fact that Kanwal Singh had not given up his share in his father's
property and the source of the money with which the truck was purchased was supplied by his
grandfather, the karta of the joint family. Kanwal Singh's claim that he had made the second trip
after the accident, and not prior to it at 8 or 8.30 a.m. was also found to be incorrect. Instead, it was
spelled out from his evidence that he must have made the first trip earlier in the morning, and that
on both the occasions the truck had brought voters from Turakpur. His version that his father and
the appellant never came to the baithak of Randhir before the arrival of the Police Sub-Inspector
was also not accepted.

106. It is true that Kanwal Singh has not been straight in giving evidence. He has not deposed to
some facts truthfully. But that is no ground to reject the whole body of his testimony. The grain in
his evidence can be sifted from the chaff in the light of the other evidence and the surrounding
circumstances and probabilities of the case. So far as his claim to the ownership of the truck is
concerned it is fully supported by the official records of the Transport Department. In those records,
he has been entered as the sole owner of this truck since 1968. His name, as owner, has been writ
large on the truck. PW 9 as already noticed, had not spoken the truth when he went to the length of
saying that he had seen Lakhi Ram's name, as owner, written on the body of this vehicle. Even if
Lakhi Ram was the beneficial owner or joint owner of thi__s truck that would not make any
difference so far as the probative value of the evidence produced by the petitioner to prove the
hiring and use of this truck is concerned. That eviden must stand or fall on its own intrinsic worth.

107. As regards the trip of the truck to Mandaura at 10 or 10.30 a.m. in which it met with 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 at 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 point, Mange Ram himself has in his 'dying
declaration' contradicted Kanwal Singh's version, and supported that of PW 10.
108. 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 the accident occurred during the first trip, and not in the second,
must necessarily be untrue. Sub-Inspector Ram Singh found damage only to the tool-box of the
truck. Even after the accident, the truck was fit enough to make another trip. Kanwal Singh named
six persons who according to him were labourers and were in this truck to help in the excavation,
loading and unloading of sand. The present of labourers in the truck lends support to the above
conclusion.

109. We are further of the opinion, that from Kanwal Singh' statement no admission of his having
made one trip earlier at 7-30 or 8 a.m. to Mandaura can be clearly spelled out, much less that on any
other trip also, Mange Ram was with him. In Ex. PW 1/1, Mange Ram has not spoken about his
being in the truck during any other trip or occasion excepting the one when he received the injuries.
Nor do we find any good reason to doubt Kanwal Singh's sworn word that Mange Ram got a lift in
the truck from Turakpur on its fateful journey. On this point his version is in conformity with the
dying declaration of Mange Ram.

110. The learned trial Judge did not accept Mange Ram's statement to the effect, that he was
returning from Kaloi and on the way got a lift in this truck. His reasoning is that Mange Ram must
have been coached by the appellant to say so. To us this reasoning does not appear to be well-
founded. Firstly it was nobody's case that the appellant was present when Mange Ram's statement
was recorded by the Police Sub-Inspector, or that the former had been coached by the appellant or
anybody else on his behalf to depose in a particular manner. Secondly, Mange Ram's dying
declaration had to be taken as a whole. Had he been tutored or coached to make a statement
favourable to the appellant or to suppress facts adverse to the appellant, he would not have said that
some voters had boarded the truck at Turakpur. Excepting the bald oral statement of Lakhu PW 10,
there was no independent and reliable evidence to show that Mange Ram was a political worker or
partisan of the appellant. There is no allegation that Mange Ram in the election process acted as an
agent of the appellant at the time of counting or polling etc. or was seen canvassing in his company.
Nor has it been shown that he was a man of influence or status. He seems to be an ordinary villager
of humble 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 counter-version 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 Rs. 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 snap-shot 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, does not receive confirmation even from Ram Singh's oral statement which he conjured up
"from memory".
                  110A. Even Lakhi Ram's arrival and participation in the settlement and payment of
                  compensation has not been firmly established. The infirm, interested evidence of
                  PWs 9, 10 and 33 remains uncorroborated from any independent source. Ram
                  Singh's state in regard to these facts does not find mention anywhere in the record of
                  his proceedings. It was obviously a subsequent 'improvement' and not merely an
                  embellishment. Ram Singh's oral statement on these facts, therefore, could not lend
                  the requisite assurance to the story narrated by the said PWs.

111. Lakhi Ram (RW 3) stated that his neighbouring shopkeeper and friend, Dharm Pal was also
fighting the election. The witness was working for and supporting Dharm Pal in the election. Lakhi
Ram was appointed as a counting agent of Dharm Pal. He had to cast his vote at the polling station
in village Livaspur which is 10 or 12 miles from Mandaura. Consequently, he did not go to village
Mandaura on the date of polling. Lakhi Ram emphatically denied that he visited Mandaura on the
polling day, or paid any compensation to Mange Ram or his daughter on that day. It may be noted
that Lakhi Ram's assertion that he was working in the election for Dharm Pal, was not challenged in
cross-examination. Nor was any question put to him that he was a political partisan or worker of the
appellant in the election.

112. Thus the probability of Lakhi Ram, at the material time being at Livaspur or his coming to
Mandaura to help his son out of the difficulty, was equally divided. In the ultimate analysis, it must
be held that even Lakhi Ram's participation in compounding the accident case and payment of
compensation had not been affirmatively established.

113. We do not think it necessary to overburden this judgment by a detailed discussion of the
evidence of Ch. Suba Singh, Advocate, RW 5. He belongs to village Mandaura. He swore that
Mange Ram, his co-villager, was not a supporter of the appellant. Witness claims to have visited
Mange Ram soon after the accident. He however deposed to the arrival of the police 15 or 20
minutes after Mange Ram's removal to the baithak of Randhir Singh. He has further corroborated
Kanwal Singh and Ram Singh PW 1 inasmuch as they 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.
Suba Singh's claim however that Sub-Inspector Ram Singh did not record that statement of Mange
Ram is not acceptable. Suba Singh further testified that neither Lakhi Ram of Turakpur nor the
appellant ever came to Mandaura on the polling day. Suba Singh's statement no doubt is not
impeccable. The learned trial Judge of the High Court has however rejected his evidence in toto. We
think this was not justified. His presence at the time of the settlement and payment of compensation
has not been admitted by PWs 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.

114. 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 of charge. The High Court got over this
difficulty by calling in aid the observations of this Court, among others, in Dr. M. Chenna Reddy v.
V. Ramachandra Rao (40 ELR 390) wherein after pointing out the difference between the trial of an
election petition and a criminal trial, it was observed :

                  It becomes the duty of the Court to weigh the two versions and come to a conclusion
                  as to whether notwithstanding the denial and the evidence in rebuttal a reasonable
                  person can form the opinion that on the evidence the charge is satisfactorily
                  established ................ Inference can therefore be drawn against a party who does not
                  call evidence which should be available in support of his version.

115. The High Court seems to think that once it was established that on the polling day voters
carried in this truck to Mandaura, the onus had shifted on to the returned candidate to prove that
they were not carried free of charge. This view proceeds on the reasoning that this was a
circumstance which could be within the special knowledge of the candidate only.

116. The facts in Dr. Chenna Reddy's case (supra) were materially different from the one before us.
Therefore, the observations therein are of no assistance in appreciating the evidence in the instant
case.

117. In the first place, it may be remembered that the principle underlying Section 106, Evidence
Act - which is an exception to the general rule governing burden of proof - applies only to such
matters of defence which are supposed to be especially within the knowledge of the
defendant/respondent. It cannot apply when the fact is such as to be capable of being known also by
persons other than the respondent. In the present case, the carriage of voters free of charge, was
obviously known to several persons other than the appellant. No less than thirteen voters were
named by P Ws 9, 10 and 12 who were alleged to have travelled in this truck. Besides others, this
fact would be fully known to them. The petitioner could, if he so desired, examine at least some of
them to prove this fact. But none was produced by him. One of them, Prem Raj who was examined
by the appellant denied having travelled in this truck. The High Court has rejected his evidence
merely on the ground that he had supported Kanwal Singh's version - which in the opinion High
Court was false - in regard to the carriage of sand in the truck, although there 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.

118. 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 affect 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 free carriage of
voters could be raised. Apart from the petitioner's formal derivative statement of his case - which on
this fact could be no better than hearsay - not a scintilla of evidence on this material fact had been
brought on record by the petitioner. Nor was any specific question as to this fact was put to be
appellant in cross-examination. Yet, the appellant, as RW 17, swore in clear and unequivocal terms :

                  I had no talk either with Lakhi Ram or with Kanwal Singh for hiring any truck for
                  carrying voters or for any other work. I never had any talk with Lakhi Ram in the
                  presence of Tara Chand PW or anyone else regarding the hiring of any truck. I did
                  not go to village Mandaura on the date of polling. The story about my having paid
                  Rs. 7,000 to Mange Ram or to his daughter is absolutely false. No voters were
                  brought in any truck or in any other conveyance on my behalf or with my consent or
                  otherwise from Turakpur to Mandaura for casting their ballots. Nor were any voters
                  taken back after voting, in any conveyance on my behalf or with my knowledge or
                  with my consent.

119. The above refutations and denials, if true, had left no scope for raising an inference as to the
existence of any essential ingredient of the charge of this corrupt practice.

120. Thirdly, the evidence on both sides - as pointed out by this Court in Dr. Chenna Reddy's case
(supra) also - had to be weighed. In the case in hand many of the infirmities, noticed above, in the
evidence produced by the petitioner, were either overlooked or were not give due weight by the
High Court. The High Court while accepting the evidence of the PWs without much discussion,
allowed itself to be concerned mainly with the task of sorting out and highlighting the weal spots,
deficiencies and untruths in the evidence produced by the respondent. In this approach, it had
strayed from the course indicated by the fundamental approach, it had strayed from the course
indicated by the fundamental principle as to the burden of proof applicable in such cases.

121. After a careful consideration of the evidence adduced by both sides and the contentions
canvassed before us, we are of the opinion that the petitioner had failed to prove, at least, three
essential ingredients of this charge of corrupt practice, namely :

                  (i) that the truck (HRR 5167) was hired or even procured by the appellant;

                  (ii) that the use of this truck for carriage of voters to Mandaura, 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.

122. We would, accordingly, reverse the findings of the High Court on issues Nos. 1 and 5 on this
charge.

123. 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
do not think it necessary to go into it. For want of factual premises, the High Court's finding on this
issue fails and would stand reversed.

124. Now we turn to the charge relating to the hiring and use of tractor No. DLL-9 for the free
conveyance of 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 Jatinder Singh, Ran Singh and Ch. Rasal Singh
regarding the facts alleged in paragraph 13. In the affidavit, the petitioner averred that Suba Singh
gave him the information in regard to the hiring and use of this tractor. This Suba Singh has not
been examined. Rather, in the witness-box the petitioner stated that he did not remember if he had
named Suba Singh as informant of the fact relating to this charge. PW 12 Dharam Singh does not
say a word as to the hiring and use of this tractor. Bule Ram, Chander Bhan, Jatinder Singh and Ran
Singh were not cited in the list of witnesses submitted by the petitioner. Subsequently, an
application was submitted seeking permission to examine Bule Ram, Chander Bhan, Jatinder Singh
and Ran Singh. However on December 5, 1972, the petitioner abandoned his intention to examine
them and gave them up. Rasal Singh son of Har Narain Singh of village Khewara was cited in the
list at serial No. 62 with the representation "witness shall state about obtaining service of Hawaldar
Pratap Singh and his canvassing for Razik Ram by him". This Risal Singh was not cited for proving
an allegation in respect of the hiring and use of this tractor DLL 9 along with a trailer. Even so,
Risal Singh was not examined for any purpose, whatever.
125. Om Parkash was examined as PW 29. He is a resident of village Bhaira Bakipur. He was
admittedly a supporter and polling agent of the appellant in the election. He stated that, four or five
days before the polling, he got a tractor of Richchpal Singh of Kurampur hired out to the appellant
for the polling day for transporting voters from Aurangabad to Jakholi and back. The hiring charges
were settled at Rs. 200, between Richchpal and the appellant in the presence of the witness. The
appellant asked the witness to tell Richchpal that the latter should reach Aurangabad at 8 a.m. on
March 11, 1972 and that Raje would meet him there and given instructions as to the persons to be
carried in his tractor-trailer. On the polling day, the witness sent the tractor but did not himself
accompany it. In cross-examination, Om Parkash admitted that he is a Chauhan Rajput by caste and
that Shiv Charan and Piare Lal also belong to his caste, while the appellant is a Jat. He admitted that
he is the grandson of one Mam Chand. It was then suggested to the witness that Jai Devi, sister of
his grandfather, Mam Chand, was married to Yad Ram grandfather of the petitioner. The witness
replied : "I do not know, as may 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 Richchpal, the alleged driver of the tractor was related to the petitioner. 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.

126. Think Khazan Singh was examined as PW 38. In cross-examination, PW 38 frankly admitted
that Smt. Dhapo was his sister and she was married to PW 29 Om Parkash son of Bhim Singh of
Bhaira. PW 29 had thus no sanctity for oath. No reliance could be placed on the word of such a
person who had the audacity to deny even such a glaring fact. Om Parkash would have us believe
that he was staunch supporter of the appellant in the election, but now without disclosing any
reason, he wants to see him unseated. He was thus a self-confessed betrayer. Despite deliberate
attempt at concealment of his deep interest in the petitioner, the same could be seen through the
chinks and crevices caused by cross-examination. Moreover, his statement has been contradicted by
PW 14 Richchpal Singh in some material aspects.

127. It may be recalled that in the petition, it was alleged that Suba Singh agent of the appellant, and
PW Om Parkash, both, were jointly and severally responsible in getting the tractor on hire for the
appellant, and, thereafter, an issue was raised on the point as to whether Suba Singh was an agent of
the appellant. Suba Singh was later on given up. Nor was this issue pressed, and the same was
consequently decided against the petitioner. Om Parkash obviously was mentioned as 'stand-by' in
the event of Suba Singh failing to give evidence in favour of the petitioner. It is not understood how
Om Parkash was mentioned as a joint or alternative witness of the fact of hiring when he did not
pass on any information about the fact to the petitioner.

128. Richchpal's version in examination-in-chief was :

                  I received a sum of Rs. 200 for carrying the voters abovesaid from one Om Parkash
                  of village Bakipur Bera. This Om Parkash was one of the supporters of respondent
                  No. 1. Two days before the poll on 9th of March, an agreement for carrying the
                  voters was arrived at in my house. On the polling day at about 10-20 a.m. my tractor
                  was checked by the Sub-Inspector and his accompanying staff. I was challaned and a
                  chit was given to me in this connection. This is Ex. PW 14/1. On 26th of April, 1972,
                  I had attended the Court of Magistrate 1st Class in connection with the challan
                  abovesaid. I was fined Rs. 70 in that case. I cannot now recollect the names of any of
                  the voters whom I had carried from village Aurangabad to village Jakholi.

129. Om Parkash contradicted the above version inasmuch as he stated that this transaction of hiring
was settled about four or five days (and not two days) before the poll.

130. Another point to be noted is that in examination-in-chief, Richchpal did not say a word about
the presence of Ch. Razik Ram either at the time of hiring or the payment of hiring charges,
although in cross-examination he tried to make good this omission.

131. The deposition of PW 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 Court 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 giving
                  information to the petitioner. The principle of falsus in uno 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
                  Parkash wherein he denied having given the information about the transaction to the
                  petitioner.

132. In our opinion his demeanour coupled with the other infirmities was sufficient to condemn his
evidence as wholly unreliable. Furthermore, Om Parkash was questioned as to where he had stayed
at Chandigarh when he reached there for appearing as a witness in Court. He admitted that he had
first attended the Court on October 10, 1972 in compliance with the summons of the Court.
Thereafter he went away from Chandigarh on the twelfth or the thirteenth of October and returned
on the eighteenth. Again, on the night of the eighteenth, he went away. To conceal his stay at
Chandigarh with the petitioner, he stated that he had stayed with a boy of his village who was not
known to him, but to Piarey. The name of that boy was Dhakan. The matter was probed further,
whereupon the witness conceded that he did not know the number of the house in which this
Dhakan was residing. The learned trial Judge has accepted the flimsy explanation about his stay at
Chandigarh without comment. Om Parkash being a highly interested witness, his evidence required
a severe and close scrutiny. Due weight had to be given to his demeanour, prevarications,
contradictions and suppression of facts. The witness admitted that he had applied for being
registered as Vaid under the Ayurvedic system of medicine to the authorities. He was asked : "Was
your application signed by the petitioner in any capacity ?" His answer was in the negative. When
the question was repeated he could not hold any more and broke : "I got it attested from Ch.
Rajendra Singh. There was another boy with me. He got my application as well as his own signed
by the petitioner".

133. In view of what has been said above, we think it hazardous to rely on the testimony of Om
Parkash which is admittedly of an accomplice character.

134. The evidence of Richchpal Singh does not, in our judgment, stand on a better footing than that
of Om Parkash. According to Richchpal Singh on the polling day a about 12-30 p.m., his tractor
was checked and challaned by the Traffic Police Inspector and his accompanying staff. On April 26,
1972, Richchpal Singh attended the Court of the Magistrate First Class who convicted and fined him
Rs. 70. Cross-examined and Ex. PW 14/1 was detached from that book and delivered to the witness.
The witness disclosed that his father had not attended the Court in connection with the challan
because he had died about one and half year before his (Richchpal Singh's) deposition (which was
recorded on October 12, 1972). This means that, Richchpal's father, Shiv Lal, 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'.

135. 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 PW 3. He inter alia stated that he had intercepted this
tractor-cum-trailer at about 12.30 p.m. on March 11, 1972 on the road between Sooli and Jakholi.
The trailer was displaying a flag bearing the election symbol of Ch. Razik Ram. There were about
50 passengers in the trailer pulled by it. Witness stopped the vehicle and questioned its driver,
Richchpal of village Khurampur. Richchpal 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.
Richchpal further informed the witness that the tractor was being used for hire and reward and had
been engaged by Ch. Razik Ram. Witness then prepared an intimation form in duplicate on a plain
paper and gave the carbon copy thereof to the driver, retaining the original with himself. Witness
long thereafter handed over the challan prepared on the basis of that chit (Ex. PW 3/2) to the
Moharrir Head Constable of police station Rai. The witness added that Richchpal Singh and "the
owner of the vehicle" were challaned and were convicted and fined Rs. 35 each.

136. It is mentioned in Ex. PW 3/2 that this tractor-cum-trailer was carrying 50 persons on hire.
Another ground of the offence mentioned is "without R.C. and I.C.". We are told that 'R.C.' stands
for Registration Certificate and 'I.C.' for Insurance Certificate. The owner is mentioned as Shiv Lal
son of Tirkha Ram of Khurampur.

137. We have carefully examined the evidence rendered by Inspector Ritu Bhawaj. To us, the
substratum of his story appears to be wholly untrustworthy for these reasons : According to his own
admission he was not carrying any challan book or police papers in the prescribed form. He had
only loose sheets of paper on which he wrote out the intimation; he did not prepared the challan in
the prescribed form. Further he did not prepare and send any daily diary to the Deputy Inspector
General of Police as required by the Rules.

138. Rule 21.36, Ch. XXI, Vol. III, of the Punjab Police Rules, as applicable in the State of
Haryana, prescribes the duties of the Range Mobile Traffic Patrols. Such duties, among others,
include the checking of licenses of vehicles plying for hire, with a view to ensure that the conditions
of their licenses are duly observed etc. The rule enjoins upon the members of the Mobile Traffic
Patrol to maintain a confidential register by districts containing notes of matters prescribed in the
rule. This rule further requires that offence under the Motor Vehicles Rules and under the Penal
Code detected on checking of vehicles shall be reported in Form 21.36(b). Rule 21.37 gives a
mandate to the Inspector-in-charge of Mobile Traffic Patrol to submit a daily dairy of the work done
by them to the Deputy Inspect General of Police in Form 21.37(2)(A). Ritu Bhawaj honoured the
salutary provisions in breach.

139. Admissions wrung out from the witness in cross-examination show that he bore hostility
towards the appellant. Ritu Bhawaj 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
Rs. 2,200 and Rs. 2,800, respectively, from this Sardara. Witness denied the suggestion. He however
admitted that Sardara had made some such allegations in complaint against him and that complaint
was inquired into by the District Inspector of Police. Questioned further, he first denied that Ch.
Razik Ram had appeared as a witness against him in that enquiry. In the next breach, however, he
said "I do not know if Ch. Razik 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. Razik Ram did appear as a witness in support of that
complaint against him, in his presence, in that departmental enquiry at its second stage. He denied a
further suggestion that on the intervention of Razik Ram, he was made to refund a sum of Rs. 1,600
out of Rs. 2,200 that he had extorted from Sardara.

140. The admission wrenched out of the unwilling lips of Ritu Bhawaj in cross-examination, to the
effect, that the appellant had appeared as a witness in the departmental enquiry relating to a charge
of corruption against him, unerringly indicates that the witness had a motive to gratify private spite
against the appellant.

141. Screened against this backdrop, the silhouette of suspicion stalking his evidence become more
pronounced. Strangest of these which stamps the account given by Ritu Bhawaj with the character
of a ghost story is the apparition of the dead man, Shiv Lal, looming large on the scene. Ritu
Bhawaj has not explained with what 'incantations' and with what motive and for what purpose he
had invoked the spirit of the dead man. Nor has he explained the circumstances in which he got the
dead man convicted. In all likelihood, at the time when this story was conceived Ritu Bhawaj did
not know that Shiv Lal was dead. Might be at that time the only handy source from which he could
draw his raw material for the story as was the record of the Transport Department wherein Shiv Lal
was entered as the owner of the tractor. If actually he had intercepted the tractor in the due discharge
of his duty, the fact about the death of its owner could not go undetected. Still another
circumstances which enhances the suspicion surrounding his proceedings is that the challan was not
handed over by him to the Moharrir Head-Constable of the police station till April 20, 1972. This
inordinate delay also remains unexplained.

142. As already noticed the Inspector did not prepare any daily diary of his proceedings. He did not
take any notes of the investigation which he claims to have made although as an officer of rank and
standing specially on duty in connection with elections, he ought to have known that the
commission of a corrupt practice under Section 123(5) is also an offence under Section 133 of the
Act. He did not record the statement of any person not even of the driver Richchpal, nor of Raje
Ram, a self-styled election-worker of the appellant. He made no note of the fact that the tractor was
displaying a flag or symbol of any candidate. All his acts of omission and commission show that the
was keeping options open and scope for development, improvement and adaptions with impunity.

143. PW 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 Richchpal to the polling booths of Jakholi on behalf
of the appellant. According to Raje Ram, no fare was being charges 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 an change his earlier
version.

144. In our opinion, it would be ridiculous for any candidate to arrange for carriage of village voters
over so short a 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.

145. Further, like Richchpal, this witness would have us believe that he was an ardent supporter and
worker of the appellant in the election. He too, does not give any reason as to why he has been
chosen to betray his erstwhile friend. In any case, his evidence is according to his own showing, of
an accomplice character.

146. In his statement as RS 17, the appellant refuted and denied all allegations relating to this charge
also.

147. After considering very carefully the evidence of this trioka - Ritu Bhawaj, Richchpal Singh and
Raje Ram - one of whom was the admitted enemy of the appellant and the other two self-styled
friends and self-confessed accomplices, we are left with the impression that the story propounded by
them is not genuine and worthy of credence. Thus this charge also fails. Accordingly we reverse the
finding of the High Court on issue No. 4, also, in favour of the appellant.

148. For all the foregoing reasons, we allow this appeal, set aside the judgment of the High Court
and dismiss the election petition with costs.

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