10. According to his evidence, on April 27, 1959, at about 4.45 P.M., he was standing at the window of his    study in his flat on the ground floor at New Queen's Road. His window     opens out on the road near the band stand. The accused came up to the window and he was in a dazed condition. The witness asked him what had happened, and the accused     told him "I    do not     quite    know what happened, but I think    I have    shot a    man." The witness asked him how it happened, and the accused told him that the man had seduced his wife and he would not stand it. When the witness asked him to come     inside and explain everything calmly, the accused said "No, thank you, I must go", "please tell me     where I should go and report". Though he asked him again to come in, the accused did not go inside and, therefore, this witness instructed him to go to the C.I.D. Office and report to the Deputy Commissioner Lobo. The accused asked him to phone to Lobo and he telephoned to Lobo and told him that an officer by name Commander Nanavati was involved in an affair    and that he was on the way to report to     him. Nanavati     in his evidence practically corroborates the evidence    of Samuel. Nanavati's version in regard to this incident is as follows:

"I told him that something terrible had happened, that I did not know quite what 637

had happened but I thought I had shot a man. He asked me where     this had happened. I told him at Nepean Sea Road. He asked me Why I had been there. I told him I went there because a fellow there had seduced my wife and I would not stand    for it.     He asked me many times to go inside    his room. But I was not willing to do so, I was anxious to    go to the police station. I     told Commander Samuel that there had been a fight    over a revolver. Commander Samuel asked to report to Deputy Commissioner Lobo."

The difference    between the two versions lies in the fact that while Nanavati said that he told Samuel    that something terrible had     happened, Samuel did not say that; while Nanavati said that he told     Samuel that there had been a fight over a revolver, Samuel did not     say that. But substantially both of them say that though Samuel asked Nanavati    more than once to get inside the house and explain to him everything calmly, Nanavati did not do so; both of them also deposed that the accused told Samuel, "I do not quite know what happened but I think I have shot a man." It may be mentioned that Samuel is a Provost Marshal of the    Indian navy, and he and the accused are of the same rank though the accused is    senior    to Samuel as Commander. As Provost Marshal, Samuel discharges police duties in    the navy. Is    it probable that     if the deceased was shot    by accident, the accused would not have stated that fact to     this witness?    Is it likely that he would not have stepped into his house, particularly when he requested him more    than once to come in and explain to him how the accident had taken place ? Would he not have taken his advice as a colleague before he proceeded to the police station    to surrender himself ? The only explanation for this unusual conduct on the     part of the accused    is that, having committed the murder, he     wanted to surrender himself to

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the police and to    make a     clean    breast    of everything. What is more, when he    was asked directly that had happened he told him "I do not quite know what happened but I think I have shot a man". When he was further asked how it happened, that is, how he shot the man he said that the man had seduced his wife and that he would not stand for it.     In the     context, two    answers read along with the questions put to him by Samuel only mean that, as the deceased    had seduced his wife, the accused shot him as he would not stand for it. If really the accused shot the deceased by accident, why did he not     say that fact to his colleague, particularly when it     would    not only be his defence, if prosecuted, but     it would put     a different complexion to his act in the eyes of his colleague. But    strong reliance     is Placed on what this Witness stated in the cross-examination viz., "I heard the word fight from    the accused",    "I heard some other words     from the accused but     I could not make out a sense out of these words". Learned counsel for the accused contends that this statement shows     that the accused mentioned    to Samuel that the shooting of tho deceased was in a fight. It is not possible to build    upon such slender foundation that the accused explained to Samuel that he shot the deceased by accident in a struggle. The statement in the cross-examination appears to us to be an attempt on the part of this witness to help his colleague by saying something which may fit in the scheme of his defence, though at the     same time he     is not willing to lie deliberately in     the witness-box, for he clearly says that he could not make out the sense of the words spoken along with the word "fight". This vague    statement of     this    witness, without particulars, cannot detract    from the clear evidence given by him in the examination-in-chief. What Nanavati said to the question put by the Sessions Judge     under    s. 342     of the Code    of Criminal Procedure supports Samuel's version. The 639

following question was put to him by the learned Sessions Judge :

Q.-It     is alleged against     you that thereafter as aforesaid you went to Commander Samuel at    about 4-45 P.M. and told him that, something terrible     had happened and that you did not quite know but you thought that you shot a man as he had seduced your wife which you could not stand and that on the advice of Commander Samuel you then went    to Deputy Commissioner Lobo at    the Head Crime Investigation Department office. Do you wish to say anything about this?

A.-This is correct.

Here Nanavati admits that he told Commander Samuel that he     shot the man as he had seduced his wife. Learned counsel     for the accused contends that the question framed was     rather involved and, therefore, Nanavati might not have understood its implication. But it appears from the     statement that, after the question were answered, Nanavati read his answers and    admitted that    they were correctly recorded. The answer is also consistent with what Samuel said    in his evidence as to what Nanavati told him. This corroborates the evidence of Samuel that Nanavati told him that, as the man had seduced his wife, he thought that he had shot him. Anyhow, the accused did not tell the Court that he told Samuel that he shot the deceased in a fight.

Then the accused, leaving Samuel, went to the office of the Deputy Commissioner Lobo. There, he made a     statement to     Lobo.     At that time, Superintendent Korde and Inspector Mokashi were also present. On the information given by him, Lobo directed     Inspector Mokashi to     take the accused into custody and to take charges of the articles and to

investigate the case.

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Lobo says in his evidence that he received     a telephone call from Commander Samuel to the effect that he had    directed Commander Nanavati    to surrender himself to him as he had stated that J he had shot a, man. This evidence obviously cannot be used     to corroborate what Nanavati told Samuel, but it    would only be     a corroboration of the evidence of Samuel that he telephoned to Lobo to that effect. It is not denied that the accused set up the    defence of accident for the first time in the Sessions Court. This conduct of the accused from the time of the shooting     of Ahuja to the moment he surrendered himself    to the    police    is inconsistent with the defence    that the deceased was shot by accident. Though tho accused had many opportunities to explain himself, he did not do so; and     he exhibited the attitude of a man who wreaked out his vengeance in the manner planned by him and was only anxious to make a clean breast of everything to the police.

Now we will consider what had happened in the bed-room and bath-room     of the deceased. But before considering the evidence on this question, we shall try to describe the scene of the incident and other relevant particulars regarding the things found therein.

The building "Jivan Jyot" is situate    in Setalvad Road,    Bombay.     Ahuja was staying on the first floor of that building. As one goes up the stairs, there is a door leading into the hall; as one enters the hall and walks a few feet towards the north he reaches a door leading into bed-room of Ahuja. In the bed-room, abutting the southern wall there is a radiogram; just    after the radiogram there     is a door on    the southern wall leading to the bath-room, on the eastern side of the door abutting the    wall there is a cupboard with a    mirror thereon; in the bath-room, which is of the    dimensions 9 feet x 6 feet, there is     a commode in the front along the

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wall, above the commode there is a window with glass panes overlooking the chowk, on the east of the commode there is a bath-tub, on the western side of     the bathroom there is a door leading into the hall; on the southern side of the said door there is a wash-basin adjacent to the wall. After the incident the corpse of     Ahuja was found in the bath-room; the head of the deceased was towards the bed-room and his legs were towards the commode. He was lying with his head on his right hand. This is the evidence of Miss Mammie, and she     has not been cross-examined on it. It is also not contradicted by any    witness. The top glass pane of the window in the bath-room was broken. Pieces of glass were found on the floor of the bath-room between the commode and     the wash- basin. Between the bath-tub and the commode a pair of spectacles was lying on the floor and there were also two spent bullets. One chappal was found between the commode and the wash basin, and the other was found in the bedroom. A towel was found wrapped around    the waist of the deceased. The floor of the bath room was blood stained. There was white handkerchief and bath towel, which was blood stained lying on the floor. The western wall was found to be blood stained and drops of blood were trickling     down.    The handle of     the door leading to the bath-room from the bed-room and a portion of the door adjacent to the handle were bloodstained from the inner side. The blood on the wall was little a over three feet from the floor. On the    floor of the bed-room    there was an empty brown envelope with the words "Lt. Commander K. M. Nanavati" written on it. There was no mark showing that the bullets had hit any    surface. (See the evidence of Rashmikant, P.W. 16)

On the dead-body the following injuries were found :

(1) A     punctured wound 1/4"    X 1/4"     X chest cavity deep just below and inside the inner

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end of the right collar bone with an abrasion collar on the right side of the wound. (2) A     lacerated punctured wound in the web between the ring finger and    the little finger of     the left hand 1/4" X 1/4" communicating with     a punctured wound 1/4     X 1/4" on the palmer aspect of the left hand at knuckle level between the left little and the ring finger. Both the wounds were communicating.

(3) A     lacerated ellipsoid wound oblique in the left parietal region with dimensions 1 1/3" X 1/4" X skull deep.

(4)    A lacerated     abrasion with carbonaceous tatooing 1/4" X 1/6" at the distal end     of the     proximal interphalangeal joint of the left index finger dorsal aspect. That means     at the     first joint of the crease of the index finger on its dorsal aspect, i.e., back aspect.

(5)    A lacerated     abrasion with carbonaceous tatooing 1/4" X 1/6" at the joint level of the left middle finger dorsal aspect.

(6) Vertical    abrasion inside     the right shoulder blade 3"     X 1"    just outside the spine.

On internal examination the following wounds were found by Dr. Jhala, who performed the autopsy on the dead-body. Under the first injury there was: "A small ellipsoid wound oblique in the front of the piece of     the breast bone (Sternum) upper portion right side centre with dimensions 1/4" x 1/3" and at the back of the bone there was a lacerated wound accompanied by irregular chip     fracture corresponding to external injury    No. 1,    i, e., the punctured wound chest cavity deep. Same wound continued in the contusion in area 3" x 1 1/4" in the right lung upper lobe front border middle portion front and back. Extensive clots were seen

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in the middle compartment     upper    and front part surrounding the laceration impregnated pieces of fractured bone. There was extensive echymosis and contusion around the root    of the right     lung    in the diameter of    2" involving also the inner surface of the upper lobe. There were extensive clots     of blood around the     aorta. The left lung was markedly pale and showed a     through and through wound in the lower lobe     beginning at    the inner surface just above the root opening out in the lacerated ground in the back region outer aspect at    the level between 6th and 7th ribs left side    not injuring the rib and injuring the space    between the 6th and 7th rib left side 2" outside the junction of    the spine obliquely downward     and outward. Bullet was recovered    from tissues    behind     the left shoulder blade. The wound     was lacerated    in the whole     tract     and was Surrounded    by contusion of softer tissues."

The doctor says that the bullet, after entering "the inner end, went backward, downward and then to the left" and therefore he described the ground an ellipsoid and oblique". Ho also points out that the abrasion collar was missing on the left side. Corresponding to the external    injury No. 3, the doctor found on internal examination     that the skull showed a haematoma under the scalp, i.e., on the left parietal region ; the dimension was 2" X 2". The     skull cap showed a gutter fracture of the outer table and a fracture of the inner table. The brain showed sub-arachnoid haemorrhage     over the left parieto-occipital     region     accompanying the fracture of the vault of the skull.

A description of    the revolver with which Ahuja was shot and the manner of its working would be necessary to appreciate the relevant evidence in that regard. Bhanagay, the Government 644

Criminologist,    who was examined as P.W.    4, describes the revolver     and the manner of its working. The revolver is a semi-automatic one and it is six-chambered. To load the revolver one has to release the chamber; when the chamber    is released, it comes out     on the left    side. Six cartridges can be inserted in the holes of tho chamber and then the chamber is pressed to the revolver. After     the revolver is thus loaded, for the purpose of firing one has to pull the trigger of the    revolver; when    the trigger is pulled the cartridge gets cocked and the revolver being semi- automatic the hammer strikes the percussion cap of the cartridge and the    cartridge explodes and the bullet goes off. For firing the second shot, the trigger has to     be pulled again and     the same process will have to be repeated each time it is fired. As it is not an automatic revolver, each time it is fired, the trigger has to be pulled and released. If    the trigger is pulled but not released, the second round will not come in its position of firing. Pulling of the trigger has a double action-one is the rotating of the chamber and cocking, and the    other,    releasing of the hammer. Because     of this double action, the pull must be fairly strong.     A pressure of     about    20 pounds is required for pulling the trigger. There is controversy on the question of pressure, and we shall deal with this at the appropriate place. Of the three bullets fired from     the said revolver, two bullets were found in the bath-room, and the     third was extracted from the back of the left shoulder blade. Exs. F-2 and F-2a are the bullets found in the bath-room. These two bullets are flattened and the copper jacket of one of the bullets, Ex. F-2a, has     been turn off. The third bullet is marked as EX. F-3.

With this    background let US now consider the evidence to ascertain whether    the shooting was intentional, as the prosecution avers, or only 645

accidental, as    the defence suggests.     Excepting Nanavati, the accused, and Ahuja, the deceased, no other person was present in the letter's bed-room when the shooting took place. Hence     the only person who can speak to the said incident is the accused Nanavati. The    version     of Nanavati,    as given in his evidence    may be     stated     thus:    He walked into Ahuja's bed-room,    shutting the door behind him. Ahuja was    standing in front of the dressing-table. The accused walked towards Ahuja and said, "You are a filthy swine", and asked him, "Are you going to marry Sylvia and look after the kids?" Ahuja became enraged and said    in a nasty manner, "Do I have to marry every woman that I sleep with ?" Then the deceased said, "Get the hell out of here, otherwise,    I will     have you thrown out." The accused became angry, but the packet containing the revolver     down on a cabinet which was near him and told him, "By     God I    am going to thrash you for this." The accused had his hands up to fight the deceased, but the latter made a    sudden grab towards the packet containing the revolver. The accused grappled the revolver himself and prevented the deceases from getting it. He then whipped out the revolver and told the deceased to get back. The deceased was very close to him and suddenly caught with his right hand the right hand of the accused at the wrist and tried to twist it and take the revolver off it. The accused "banged" the deceased towards the door of the bath-room,    but Ahuja would not let go of his grip and tried to kick the accused with his knee in the groin. The accused pushed Ahuja again into the bath-room, trying at the same time desperately to free     his hand from the grip of the accused by jerking it around. The deceased had a very strong grip and he did not let go the grip. During the struggle, the accused thought that two shots went off: one went first and within a few seconds another. At the first shot the deceased just kept 646

hanging     on to     the hand of    the accused, but suddenly he let go his hand and slumped down. When the deceased slumped down, the accused immediately came out of the bath-room and walked down to report to the police.

By this description the    accused     seeks    to raise the image that he and the deceased were face to face struggling for the possession of the revolver, the accused trying to keep    it and the deceased trying to snatch    it, the deceased catching hold of the wrist of     the right hand of the accused and twisting it, and the accused desperately trying to free his hand from his grip; and in     the struggle     two    shots went off accidentally-he does not know     about    the third shot-and hit the deceased and caused    his death. But in    the cross-examination    he gave negative answers to most of the relevant questions put to him to    test the truthfulness of his version. The following answers illustrate his helpful attitude in the court:

(1) I do not remember whether the deceased had the towel on him till I left the place.

(2) I     had no     idea where the shots went because we were shuffling during the struggle in the tiny bath-room.

(3) I     have no impression from where and how the shots were fired.

(4) I     do not     know anything    about the rebound of shots or how the shots went off. (5) I     do not even know whether the spectacles of the deceased fell off. (6) I     do not     know whether I heard the third shot. My impression is that I heard two shots.

(7) I do not remember the details of the struggle.

(8) I     do not     give any thought whether the shooting was an accident or not, because 647

I wished to go to the police and report to the police.

(9) I     gave no thought to this matter. I thought that something serious had happened. (10) I cannot say how close we were to each other, we might be very close and    we might be at arm's length during the struggle. (11) I cannot say how the deceased bad his grip on my wrist.

(12) I do not remember feeling any blows from the deceased by his free hand during the struggle; but be may have hit me.

He gives only a vague     outline of the alleged struggle between him and the    deceased. Broadly looked at, the version given by the accused appears to be highly improbable. Admittedly he bad entered the     bedroom of     the     deceased unceremoniously     with a fully     loaded     revolver; within half a minute he came    out of     the room leaving Ahuja dead with bullet wounds. The story of his keeping the revolver on the cabinet is very unnatural. Even     if he    had kept it there, how did Ahuja come to know that it was a revolver for admittedly it was put    in an envelope. Assuming that Ahuja had     suspected that it might be     a revolver, how could he     have caught the wrist of Nanavati who had by that time the revolver in his hand with his finger on the trigger? Even if he was able to do     so, how did Nanavati accidental pull the trigger three times and release it three times when already Ahuja was holding his wrist and when he     was jerking his hand    to release it from the grip of Ahuja ? It also appears to be rather curious that both the combatants did not use their left hands in the struggle. If, as he has said, there was a struggle between them and he pushed Ahuja into the bath-room, how was it     that the towel wrapped around the waist of Ahuja was intact ? So too, if there was a struggle, why there was no bruise on the body of the accused     ? Though Nanavati says that

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there were some "roughings" on his wrist, he had not mentioned that fact till he gave his evidence in the     court,     nor is there     any evidence    to indicate such "roughings". It    is not     suggested that the Clothes worn by the accused were torn or even soiled. Though there was blood up to three feet on the wall of the bath-room, there was not a drop of     blood on the    clothes     of the accused. Another improbability     in the version of the accused is, while he says that in the struggle two shots went off, we find three spent bullets-two of them were found in the bathroom and the other in the body of the deceased. What is more, how could Ahuja have continued to struggle after he had received either     the chest injury or     the head injury, for both of them were serious ones. After the deceased received either the first or the third injury there was     no possibility of further struggling or pulling of the trigger    by reflex action. Dr. Jhala says that the injury on the head of the    victim was such that the victim could not have been able to keep standing and would have dropped unconscious immediately and that injury No. 1 was also so serious that he could not stand for more than one or two minutes. Even Dr. Baliga admits that the deceased would have slumped down after the infliction of injury No. 1 or injury No. 3 and that either of them individually would be sufficient to cause the victim to slump down. It is, therefore, impossible that after either of the said two injuries was     inflicted, the deceased could have still kept     on struggling     with the accused. Indeed, Nanavati says     in his evidence that at     the first shot the deceased just kept on hanging to his hand, but suddenly he let go his grip and slumped down.

The only circumstance that could be relied upon to     indicate a struggle is that one of the chappals of the deceased was found in the bed-room while the other was in the bath-room. But that is consistent with     both intentional and    accidental shooting, for in his anxiety to escape from, the line of

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firing the deceased might have in hurry left his one chappal in the bed-room and fled     with the other to the bath-room. The    situation of the spectacles near     the commode is more    consistent with intentional shooting than with    accidental shootings, for if there had been a struggle it was more likely that the spectacles would have fallen off and     broken instead     of their being intact by the side of the dead-body. The condition of the bed-room as well as of the bath-room, as described by Rashmikant,    the police-officer who     made the inquiry, does not show any indication of struggle or fight in that place. The version of the accused, therefore,     is     brimming with improbabilities and is not such that any court can reasonably accept it.

It is said that if the accused went to the bedroom of Ahuja to shoot him     he would not have addressed him by his first names "Prem" as deposed by Deepak. But Nanavati says in his evidence that he would be the last person to address the deceased as Prem. This must have     been    an embellishment on the part of Deepak. Assuming he said it, it does not indicate     and sentiment    of affection or    goodwill towards the     deceased- admittedly he had none     towards him-but only    an involuntary and habitual expression. It is argued that     Nanavati is a good shot- Nanda, D.W. 6, a Commodore in     the Indian Navy, certifies that he is a good shot in regard to both moving and stationary targets-and therefore if he had intended to shoot    Ahuja, he would have shot him perpendiculary hitting the chest and not in a haphazard way as the injuries indicate. Assuming that accused is a good shot, this argument ignores that he     was not shooting at an inanimate target for practice but was shooting to commit murder; and it    also ignores the desperate attempts the deceased must have made to escape. The first shot might have been fired and aimed at the chest as 650

soon as     the accused entered the room, and the other two presumably when the deceased was trying to escape to or through the bathroom. Now on the question whether three shots would have gone off the revolver accidentally, there is the evidence of Bhanagay, P.W. 4,    who is     a Government Criminologist. The Deputy Commissioner of Police, Bombay, through Inspector     Rangnekar sent to him the revolver, three empty cartridge cases, three bullets and three live rounds for his inspection. He    has examined the revolver and the bullets which are marked as Exs. F-2, F-2a and F-

3. He is of the opinion that the said three empties were fired from the said revolver.    He speaks to the fact that for pulling the trigger a pressure of 28 pounds    is required and that for each shot the trigger    has to    be pulled and for another shot to be fired it must be released and pulled again. He also says that the charring around the wound could     occur with the weapon of the type we are now concerned within about 2 to 3 inches    of the     muzzle     of the weapon and the blackening around the wound described    as carbonaceous tattooing could be caused from such a revolver up to about 6 to 8 inches     from the muzzle. In the cross examination he says that the flattening of the two    damaged bullets, Exs. F-2 and F-2a, could have been caused by their hitting a flat    hard surface, and that the tearing of the copper jacket of one of the bullets could have been caused by a heavy impact, such as hitting against a hard surface; it may have    also been caused, according to him, by    a human bone    of sufficient strength provided the bullet hits the bone tangently    and passes of without obstruction. These answers,    if accepted-we     do not see any reason why we should not accept them-prove that the bullets, Exs. F-2    and F-2a, could have been damaged by their coming into contact    with some hard substance    such as     a bone     He says in the cross-examination that    one     'struggling' will not cause three automatic firings and tha 651

even if the struggle continues he would not expect three rounds to go off, but    he qualifies his statement by adding that this may happen if the person holding the revolver "co-operates so far as the reflex of his finger is concerned", to pull the trigger. He further elaborates the same idea by saying that     a certain kind of reflex co- operation is required for pulling the trigger and that this reflex pull could be either conscious or unconscious. This answer is strongly relied upon by learned counsel for     the accused in support of his contention    of accidental firing.    He argues that by unconscious reflex pull of the trigger three times by the accuses three shots could have gone off the revolver.     But the possibility    of three rounds going off by three separate reflexes of the finger of the person holding the trigger is only a    theoretical possibility, and that too only on the    assumption of a fairly long struggle. Such unconscious reflex pull of the finger by the accused three times within a space    of a few seconds during    the struggle as described by the accused is highly improbable,    if not impossible. We shall consider the evidence of this witness on the question of ricocheting of bullets when    we deal with individual injuries found on the body of the deceased.

This witness is not a doctor but has received training Forensic Ballistic Identification of Fire Arms) amongst other things in London and possesses certificates of     competency from his    tutors    in London duly endorsed by the covering letter from the Education     Department, high commissioner's office, and he is a Government Criminologist and has been doing this work for the last 22 years; he says that he     has also gained experience    by conducting experiments    by firing on mutton legs. He stood the test of cross-examination exceedingly well and there is no reason to reject his evidence. He makes the following points: (1) Three used bullets, Ers. F-2, F-2a and F-3, were shot from the revolver Ex.    B. (2) The revolver can be fired only by

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Pulling the trigger; and for shooting     thrice, a person Shooting     will have to give a deep pull to the trigger thrice and     release it thrice. (3) A pressure of 28 pounds    is required to     pull the trigger. (4) one "struggling" will not cause three automatic firings. (5) If the struggle continues and if    the person who pulls     the trigger co- operates by pulling the trigger three times, three shots may go off. (6) The bullet may be damaged by hitting a hard surface     or a bone. As we have pointed out the fifth point is only a theoretical possibility based upon two hypothesis, namely, (i) the struggle continues for a considerable time, and (ii) the    person    holding     the trigger Go- operates by pulling it     thrice by reflex action. This evidence,    therefore, establishes     that the bullets went off the    revolver brought by the accused-indeed this is not disputed and that in the course of the struggle of     a few    seconds as described by the accused, it is not possible that the trigger could have     been accidentally pulled three times in quick succession so as to discharge three bullets.

As regards     the pressure required to pull the trigger of Ex. B, Trilok singh who is the Matter Armorer in the Army, deposing     as D.W. 11, does not accept the figure given by the Bhanagay and he would put it at 11     to 14 pounds. we does not know the science of ballistics and he is only a mechanic who     repairs the arms. He has not examined the revolver in question. He admits that a double-action revolver requires more pressure on the trigger than single-action     one. While major Burrard in his book on Identification of Fires and Forensic Ballistics says that    the normal trigger pull in double-action revolvers is     about    20 pounds, this witness reduces    it to    11 to    14 pounds; while Major Brrard says in his book that in all    competitions no     test other than a dead weight is accepted, this witness does     not agree with him. His opinion is based on the experiments performed

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with spring balance. We would prefer to accept the opinion of Bhanagay to that of this witness. But, on the    basis of the opinion of Major Burrard, we shall assume for the purpose of this case that about 20 pounds of pressure would be required`to pull the trigger of the revolver Ex. B. Before considering the injuries in detail, it may be    convenient to ascertain from the relevant text-books some     of the     indications that will be found in the case of injuries caused by shooting. The following passage     from authoritative text books may be consulted:

Snyder's Homicide Investigation, P. 117: "Beyond the distance of about 18 inches or 24 at the most evidence of smudging and tattooing are seldom present."

Merkeley on Investigation of Death, P. 82: "At a distance of approximately over 18" the powder grains are no longer carried forward and therefore the only effect produced on the skin surface is that of the bullet."

Legal Medicine     Pathology and Toxicology    by Gonzales, 2nd Fdn., 1956:

"The powder grains may travel 18 to 24 inches or    more depending    on the    length    of barrel, calibre and type    of weapon and the type of ammunition."

Smith and Glaister, 1939 Edn., P. 17: "In general with all types of smokeless powder some traces of blackening are to be been but     it is     not always possible    to recognize unburnt    grains of powder even at ranges of one and a half feet."

Glaister in his book on Medical Jurisprudence and Toxicology, 1957 Edn.J makes a statement that at 8 range of about 12 inches and over as a rule there will not be marks of carbonaceous tattooing or 654

powder marks. But the    same author in an earlier book from which we have already quoted puts it at 18 inches. In the book "Recent Advances    in Forensic Medicine" 2nd Edn., p. 11, it is stated: "At range beyond 2 to 3 feet little or no trace of the powder can be observed." Dr. Taylor's book, Vol. 1, 11th edn., p. 373, contains the following statement:

"In revolver and automatic pistol wounds nothing but the grace ring is likely to be found beyond about two feet."

Bhanagay, P.W.    4, says     that charring    around the wound could occur with the weapon of the type Ex.B within about 2 to 3 inches from the muzzle of the weapon, and the blackening round about the wound could be caused from such a weapon up to about 6 to 8 inches from the muzzle. Dr. Jhala, P.W. 18, ways that carbonaceous tattooing would not appear if the body was beyond 18 inches from the mouth of the muzzle.

Dr. Baliga, D.W. 2, accepts the correctness of the     statement formed in     Glaister's book, namely, when the range     reaches about     6 inches there is usually an absence of burning although there will probably be     some evidence of bruising and of    powder mark, at a range of about 12 inches and over the skin around the wound does not as a rule show evidence of powder marks." In the cross- examinations witness says that he does not see any conflict in the authorities cited, and tries to reconcile the various authorities by stating that all the     authorities show that there would not be powder marks beyond the range of 12 to 18 inches. He also     ways that in the matter of    tattooing, there is no difference     between that    caused    by smokeless powder used in the cartridge    in question, and black powder used in other bullets, though in the case of the former there may    be greater difficulty to find

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out whether tho marks    are present are not in a, wound.

Having regard to    the aforesaid    impressive array of authorities on Medical Jurisprudence, we hold, agreeing    with Dr. Jhala, that carbonaceous tattooing would     not be     found beyond range of 18 inches from the mouth of the muzzle of the weapon. We also     hold that charring around the wound would occur when it is caused by a revoler     like Ex. within about 2 or 3 inches from the muzzle of the revolver.

The presence and     nature     of the abrasion collar around the injury indicates the direction and also the velocity    of the     bullet. Abrasion collar is formed by the gyration of the bullet caused by the rifling    of the barrel. If a bullet hits the body perpendicularly, the wound would be circular and the abrasion collar would be all around. But if the hit is not perpendicular, the abrasion collar     will not be around the entire wound(See the    evidence of Dr. Jhala and Dr. Baliga).

As regards     the injuries found on     the dead body, two doctors were examined, Dr. Jhala, P. W. 18, on the side of the prosecution, and Dr. Baliga, D. W. 2, on the side of the defence. Dr. Jhala is the Polio Surgeon, Bombay, for the last three years. Prior to that he was a Police Surgeon in Ahmedabad for six years. Ee is M.     R. C.    P. (Edin.), D.T. M. and H. (Lond.). He conducted the postmortem on the dead body of Ahuja and examined both external and internal injuries on the body. He is therefore, competent to speak with authority on the    wounds found on the dead-body not only by his qualifications and     experience but also    by reason of having performed the autopsy on the dead-body. Dr.    Baliga is an F. R. C. S. (England) and has been practising as a medical surgeon since 1933. His qualifications and antecedents show that he is not only     on experience surgeon but abo has been taking

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interest in extra-surgical activities, social, political and educational. He says that he has studied medical literature    regarding bullet injuries and that he is familiar with medico-legal aspect of wound including bullet wounds. He was a Causality J. Medical officer in the    K. E.    M. Hospital in 1928. The had seen bullet injuries both as     Causality Medical officer and later on as a surgeon. In the cross-examination he says: "I have never fired a revolver, nor any other fire-arm. I have not given evidence in a single case of    bullet injuries     prior    to this occasion though I have treated and I am familiar with bullet injuries. The last that I gave evidence in Medico-legal case in     a murder case was in 1949 or 1950     or there about. Prior to    that I     must have given evidence in a medical-legal case     in about 1939. I cannot off hand tell how many cases of bullet    injuries I have treated till now, must have    been over a dozen. I     have not treated any bullet injuries case for the last 7 or 8 years. It was over 8 or 9 years ago that I have treated bullet injuries on the chest and    the head. Out    of all     these 12 bullet injuries cases which I have treated up to now there might be 4    or 5 which were bullet injuries on the head. Out of these 4 or 5 cases probably there were three cases in which there were injuries     both on the chest as well as on the head....... I must have performed about half a dozen postmortems in all my career."

He further says that he was consulted about a week before he gave evidence by Mr. Khandalawala and Mr. Rajani Patel on behalf of the accused and was shown the post-mortem report of the injuries; that he did    not have before him either the bullets or the skull; that he gave his opinion in about 20 minutes on the basis of the post-mortem

"Nothing herein    contained shall authorise the Court to alter or reverse the verdict of     a jury, unless it is of opinion that such    verdict is erroneous owing to     a misdirection by    the Judge, or to     a misunderstanding on the part of the jury of the law as laid down by him."

It may    be argued that, as an appellate court cannot alter or reverse the verdict of a jury unless such a verdict    is erroneous owing to     a misdirection by the Judge, or     to     a misunderstanding on the part of the jury of the law as     laid down by    him, the High    Court,    in exercise of its jurisdiction under s. 307 of the Code, likewise could not do so except for the said reasons. Sub-section (2) of s. 423 of the Code does not confer any power of    the High Court; it only restates     the    scope    of the limited jurisdiction conferred    on the    could under s. 418 of the     Code,     and that Could not     have any application to    the special jurisdiction conferred on the    High Court under s. 307. That     apart,     a perusal of the provisions of s. 423 (1) indicates that there are powers    conferred on an appellate court which cannot possibly be exercised by courts disposing of reference under s. 307 of the Code, namely, the power to order commitment etc. Further s. 423    (1) (a) and (b) speak of conviction, acquittal, finding and sentence, which are wholly inappropriate to verdict of a jury. Therefore, a reasonable construction     will be that the High Court can exercise-any of the powers conferred on an appellate court under s. 423 or under either sections of the Code which are appropriate to the disposal of a, reference under s. 307. The object is to prevent miscarriage of the justice by the jurors returning erroneous

or preverse verdict. The opposite construction defeats     this    purpose, for    it equates the jurisdiction conferred    under s. 307 with that of an appellate    court in a jury trial. That construction would enable the High     Court    to correct an erroneous verdict of a jury only in a case of     misdirection by the Judge but not in a case affair and good charge. This result effaces the distinction between the     two    types    of jurisdiction. Indeed,    learned     counsel for the appellant has taken a contrary position. He would say that the High Court under s. 307 (3) could not interfere with    the verdict of the jury on the ground that there were misdirections in the charge to the    jury. This argument is built     upon the hypothesis that under the    Code of criminal Procedure there     is a clear demarcation of the functions of the jury and the     Judge,     the jury dealing with facts and     the Judge with the and therefore the High Court could set aside a verdict on the    ground of misdirection only when an appeal comes to it under s. 418 and could only interfere with the verdict of the jury    for the ends    of justice, as interpreted by the Privy Council, when the matter comes to it under 8. 307 (3). If this interpretation     be accepted, we would    be attributing to    the Legislature     an intention    to introduce a circuitous method and confusion in the disposal of criminal     cases. The     following illustration will demonstrate the illogical result of the argument. The jury brings in a verdict of "guilty" on the basis    of a charge replete with misdirections;    the Judge disagrees    with that verdict and states the case to the High court; the High Court holds that    the said verdict is not erroneous on the basis     of the     charge, but is of the opinion that the verdict is erroneous because of the    misdirections in the charge; even so, it shall hold that the verdict of the jury is good and reject the reference thereafter, the Judge his to accept the verdict and acquit the accused; the prosecution then will have

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to prefer an appeal under s.    417 of the Code on the ground that the verdict was induced by the misdirections in the charge. This could not have been the intention of    the Legislature. Take the converse case.    On similar facts, the jury brings in a verdict of guilty"; the Judge disagrees with the jury and makes a reference to the High Court; even though it finds misdirections in the charge to the    jury, the High Court cannot set aside the conviction but    must reject the reference; and after the conviction, the accused may     prefer an appeal to the High Court. This procedure will introduce confusion in jury    trials,     introduce multiplicity of proceedings, and     attribute ineptitude to the Legislature. What is more, this construction is not supported by the express provisions of s. 307 (3) of the Code. The said sub-section enables the High Court to consider the entire    evidence, to    give due weight to the opinions of the Sessions Judge and the jury, and to acquit or convict the accused. The key words in the sub-section     are "giving due weight to the opinions of the Sessions Judge and the jury". The High Court shall give weight to the verdict of the jury; but the weight to be given to    a verdict depends upon many circumstances-it may be one that no reasonable body of    persons could come to; it may be    a perverse verdict; it     may be     a divided verdict and may not carry the same weight as the united    one does; it     may    be vitiated    by misdirections or non-directions. How can a Judge give any weight to a verdict if it is induced and vitiated by grave misdirections in the charge ? That apart, the High Court has to give due weight to the    opinion of the Sessions Judge. The reasons for the opinion of     the Sessions    Judge are disclosed in the case submitted by him to the High Court. If the case stated by    the sessions Judge disclosed that    there must have been misdirections the charge, how. can the High Court ignore them in giving due weight to his

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opinion ? What is more, the jurisdiction of the High Court is couched in very wide terms in sub-s. (3) of    s. 307    of the    Code: it can    acquit    or convict     an accused.     It shall take into consideration the entire evidence in the case; it shall give due weight to the opinions of the Judge and the     jury; it combines in itself the functions of the    Judge and jury; and it is entitled to come to its    independent opinion. The phraseology used does not admit of    an expressed or implied limitation on the jurisdiction of the High Court. It     appears to us that the Legislature designedly conferred a larger power on the High Court under s.     307(3)     of the code    than that conferred under     s. 418     thereof, as in the former case the Sessions Judge differs from     the jury while in the latter he agrees with the jury. The decisions cited at the Bar do not in any way sustain in narrow    construction sought to be placed by learned counsel on s. 307 of the code. In Ramanugrah Singh's case (1), which     have been referred to earlier,     the Judicial     Committee described the wide amplitude of the power of the High Court in the following terms:

"The Court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury,    and than acquit or convict the accused."

The Judicial Committee took care to observe: ".... the test of reasonableness on the part of the jury may not     be conclusive    in every case. It is possible to suppose a case in which the verdict was justified on the evidence placed before the jury, but in the light of further evidence     placed before the High Court     the verdict is shown to be wrong. In such case the ends of justice would 590

require the verdict to be set aside though the jury had not acted unreasonably." This passage indicates that the Judicial Committee did not     purport to lay down     exhaustively the circumstances under which the    High Court could interfere under     the said sub-section     with the verdict of the     jury. This Court in     Akhlakali Hayatalli v. The State of Bombay accepted the view of the    Judicial Committee on the construction of s. 307    of the    Code of     Criminal Procedure, and applied it to the facts of that case. But the following passage of this Court indicates that it also does not consider the test of reasonableness as the    only guide in interfering with the verdict of the jury:

"The charge was not attacked before the High court     nor before us as containing any misdirections or non-directions to the jury such as to vitiate the verdict."

This passage    recognizes the     possibility    of interference by the High Court with the verdict of the jury under the said sub-section if the verdict is vitiated by misdirections or non-directions. So too the decision of this court in Ratan Rai v. State of Bihar assumes     that such an interference is permissible if the    verdict of the     jury was vitiated by misdirections. In that    case, the appellants were     charged under    ss. 435 and 436 of the Indian Penal Code    and were tried by a jury, who returned a majority verdict of "guilty". The Assistant Sessions Judge disagreed with the said verdict and made a reference to the High Court. At the hearing of the reference to counsel for the appellants contended that the    charge to the jury was defective,     and did not    place the entire evidence before     the Judges. The learned Judges of the High Court considered the objections as such and nothing more, and found the appellants guilty and convicted them. This Court, observing that it was incumbent on the High

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Court to consider the    entire    evidence and the charge as framed and placed before the jury and to come to     its own conclusion whether the evidence was such that could properly support the verdict of guilty against the     appellants, allowed the appeal and remanded the matter to the High Court for disposal in accordance with the provisions of s. 307    of the    Code of     Criminal Procedure. This decision also assumes that a    High Court could under s. 307 (3) of the Code of Criminal Procedure interfere with    the verdict of the Jury, if there are misdirections in the charge and holds that in such a    case it is incumbent    on the     court    to consider the entire evidence and to come to its own conclusion,     after giving due weight to the opinions of the Sessions Judge, and the verdict of the jury. This Court again in Sashi Mohan Debnath v. The    State of West Bengal, held that where the Sessions Judge    disagreed with    the verdict of the jury and was of the opinion that the case should be submitted to the High Court, he should submit the whole case and not a part of it. There, the jury returned a verdict of "guilty" in respect of some charges and "not guilty" in respect    of others.     But the Sessions Judge recorded his judgment of acquittal in respect of the latter charges in agreement with the jury and referred the case to the High Court only in respect of the former. This Court held that the said procedure violated sub-s.     (2) of     s. 307     of the Code    of Criminal Procedure and also had the    effect    of preventing the    High Court from considering the entire evidence against the accused and exercising its jurisdiction under sub-s. (3) of s. 307 of the said Code. Imam, J., observed that the reference in that     case was incompetent and that the High Court could not proceed to exercise any of the powers conferred upon it under sub-s.     (3) of s. 307 of    the Code, because the    very foundation of the exercise of that     power    was lacking, the reference being incompetent. This

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Court held that the reference was incompetent because the Sessions Judge contravened the express provisions of sub-s. (2) of s. 307 of the Code, for under that sub-section    whenever a Judge submits a case under that section, he shall not record judgment     of acquittal or of conviction on any of    the charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail. As in that case the reference was made in contravention of the express provisions of sub-s. (2) of s. 307 of the Code and therefore the use of the word 'incompetent' may not be    in appropriate. The decision of a division bench of the Patna High Court in Emperor    v. Ramadhar Kurmi    may usefully be referred to as it throws some light on the question whether the High Court can interfere with the verdict of the jury when it     is vitiated by serious misdirections and non-directions. Das, J., observed:

"Where, however, there is misdirection, the principle embodied in s. 537 would apply and if the verdict is erroneous owing to the misdirection, it can have     no weight on     a reference under s. 307 as on an appeal. It is not necessary to multiply decisions. The foregoing discussion may be summarized in the form of the    following propositions: (1) The competency of a reference made by a Sessions Judge depends upon the existence of two conditions, namely, (i) that he     disagrees with the verdict of the jurors, and (ii) that he is clearly of the opinion that the verdict is one which no reasonable body of men could have reached on the evidence, after reaching that opinion, in the case submitted by him    he shall record the grounds of his opinion. (2) If the case submitted shows that the conditions have not been complied with or that the reasons for the opinion are not recorded, the High    Court may reject the reference as incompetent : the 593

High Court can also reject it     if the Sessions Judge has contravened sub-s. (2) of s. 307. (3) If the case submitted shows that the Sessions Judge has disagreed with the     verdict of the jury and that he is clearly    of the     opinion that    no reasonable body     of men     could    have reached the conclusion arrived at by the jury, and    he discloses his reasons for the opinion, sub-s. (3) of s. 307 of    the Code comes into    play, and thereafter the    High Court has an obligation    to discharge its duty imposed thereunder. (4) Under sub-s. (3) of s. 307 of the Code, the High Court has to    consider the entire evidence and, after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused. (5) The     High Court may deal with the reference in two ways, namely, (i)    if there are misdirections vitiating the verdict, it may, after    going into the entire evidence, disregard the verdict of the jury and come to its own conclusion, and (ii) even if there are no misdirections, the High court can interfere with the verdict of the jury if it finds the verdict "perverse     in the sense     of being unreasonable", "manifestly wrong", or "against the wight of evidence", or, in other words, if the verdict is such that no reasonable body of men could have reached on    the evidence. (6) In the disposal of the said reference, the High Court can exercise any of the procedural powers appropriate to the    occasion, such     as, issuing of notice, calling for records, remanding the case, ordering a retrial, etc. We therefore, reject    the first contention of learned counsel for the appellant. The next question is whether the High Court was right in holding that there were misdirections in the     charge     to the jury.     Misdirections    is something which     a judge in his charge tells the jury and is wrong or in a wrong manner tending to mislead them. Even an omission to mention matters which are essential to     the prosecution or the defence case in order to help the jury to come to a correct

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verdict may also in certain circumstances amount to a misdirection. But, in either case, every misdirection or     non-direction is not    in itself sufficient to set aside a verdict, but it must be such that it has occasioned a failure of justice. In Mushtak     Hussein v. The State    of Bombay, this Court laid down:

"Unless therefore it is established in a case that     there     has    been a serious misdirection by the judge in charging the jury which has    occasioned a failure    of justice and has misled the jury in giving its verdict, the verdict of the jury     cannot be set aside."

This view has been restated by this Court in a recent decision, viz., Smt. Nagindra Bala Mitra v. Sunil Chandra Roy.

The High Court in its judgment referred to as many as     six misdirections in the charge to the jury which in its view vitiated the verdict, and it also stated that    there were many others. Learned counsel     for the appellant had taken each of the said alleged misdirections and attempted to demonstrate that they were either no misdirections at all,     or even if they were, they did not in any way affect the correctness of the verdict. We shall now take     the first and the third misdirections pointed out by Shelat, J., as they are intimately connected with each other. They are really omissions. The     first    omission is that throughout the entire charge there is no reference to s. 105 of the Evidence Act or to the statutory presumption laid down in that section. The second omission is that the Sessions     Judge    failed    to explain to the jury the legal ingredients of s. 80 of the    Indian Penal Code, and also    failed    to direct them that in law the said section was not applicable to the facts of the case. To appreciate the scope of the alleged

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omissions, it is necessary to read the relevant provisions.

Section 80 of the Indian Penal Code. "Nothing is an offence which is done by accident or misfortune, and without any criminal intention     or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution." Evidence Act.

Section 103:    "The burden of proof as to any particular fact lies    on that person who wishes the Court to believe in its existence, unless it    is provided by any law that the proof of     that fact shall lie on any particular person."

Section 105:    "When a     person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any     of the     General Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part     of the     same Code, or in any law defining the offence, is    upon him, and the Court shall presume the     absence of such circumstances."

Section 3: "In this    Act the     following words and     expressions are used in the following senses, unless a contrary intention appears from the context:-

A fact is said to be disproved when, after considering    the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent    man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist." 596

Section 4: ....."Whenever it is directed by this Act that    the Court shall presume a fact, it shall regard such fact    as proved unless and until it is disproved."

The legal impact of the said    provisions on the question of burden of proof may be stated thus: In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilty of the accused; to put it    in other words, the accused is presumed to    be innocent until    his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, s. 105 of the Evidence Act raises a presumption against the accused and also throws    a burden on     him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved. An illustration     based on the facts of the present case may bring out the meaning of     the said provision. The     prosecution alleges     that the accused intentionally shot the     deceased; but the accused pleads    that, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in the    course of a struggle in the circumstances mentioned in s. 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume the     absence of circumstances bringing the case within the provisions of s. 80 of the    Indian    Penal Code, that is,     it shall presume that the shooting was not by accident, and that the other circumstances bringing     the case within the exception did not     exist;     but this presumption may     be rebutted by the accused    by adducing evidence to

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support his plea of accident in the circumstances mentioned therein. This presumption may also    be rebutted by admissions made     or circumstances elicited by the evidence led by the prosecution or by the    combined effect     of such circumstances and the evidence adduced by the    accused. But the section does not in any way affect the burden that lies on the    prosecution to prove     all the ingredients of    the offence with which the accused is charged: that burden never shifts. The alleged conflict between the general burden which lies on the prosecution     and the special burden imposed on the accused under s. 105 of the Evidence Act is more imaginary    than real. Indeed, there is    no conflict at all. There     may arise three different situations: (1)     A statute may throw the burden of proof of all or some of the ingredients of    an offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act).     (2) The special burden    may not touch     the ingredients of the offence, but only the    protection given on the assumption of the proof of the said ingredients: (see ss. 77,78,79,81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence: (see s. 80 of the    Indian Penal Code). In the first case the burden of proving the    ingredients or some of the ingredients of    the offence, as the case may be, lies on     the accused. In the    second    case, the burden of bringing the     case under the exception lies on the accused. In the third case, though the burden lies on the accused to bring     his case within the exception, the facts proved may not discharge the said burden, but may affect the proof of the ingredients of     the offence.    An illustration may bring out    the meaning. The prosecution has     to prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of s. 300 of the Indian

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Penal Code; the prosecution has to    prove the ingredients of    murder, and one of the ingredients of that     offence is that the accused intentionally shot the deceased; the accused pleads that he shot at the    deceased by accident without any intention or knowledge in the doing of    a lawful act in a lawful manner by lawful means with proper care and caution; the accused against whom a presumption is drawn under s. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in s. 80 of the Indian Penal Code, may adduce evidence     to rebut that presumption. That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accident    or inadvertence, i.e., it was    done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s. 300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder.     In that event though the accused failed    to bring his case within the terms of s. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the     accused. In this view it     might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute    to the contrary, is always on the    prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. The    failure on the part of the accused     to establish     all the circumstances bringing his case under the exception     does not absolve the prosecution to prove the ingredients of the     offence; indeed, the     evidence, though insufficient to     establish the    exception, may    be sufficient to     negative one     or more of the ingredients of the offence.

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The English decisions relied upon by Mr. Pathak, learned     counsel for the accused, may not be of much help in construing the provisions of s. 105 of     the Indian    Evidence Act.    We would, therefore, prefer not to refer to them, except to one of    the leading decisions     on the subject, namely, Woolmington v.     The Director    of Public Prosecutions. The headnote in that decision gives its gist, and it read:

"In a     trial for murder the    Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the     prisoner is entitled to show by evidence    or by examination     of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review of    all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner    is entitled to be acquitted."

In the    course of the judgment Viscount Sankey, L. C., speaking for the House, made the     following observations:

"But while the prosecution must prove the guilt    of the    prisoner, there is no such burden laid on the prisoner to    prove his innocence and it is sufficient for him    to raise a doubt as    to his    guilt; he is not bound to     satisfy the jury     of his innocence...... Throughout     the web of the English Criminal Law one golden    thread    is always to    be seen that it is the duty of the prosecution to prove the     prisoner's guilt subject to what I have already said as to the defence of     insanity and subject also to any statutory exception. If,

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at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either    the prosecution or the prisoner, as    to whether the prisoner killed the deceased with a     malicious intention, the prosecution has not made out the case and the    prisoner is entitled to an acquittal."

These passages     are not in conflict     with the opinion expressed by us earlier. As in England so in India, the prosecution must prove the guilt of the accused, i.e., it     must establish all the ingredients of     the offence with which he    is charged. As in England     so also in India, the general burden    of proof is upon the prosecution; and if,     on the     basis of the evidence adduced by the prosecution     or by    the accused, there is     a reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt. In India if an accused pleads an exemption within the meaning of s. 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provision    similar to s. 80 of the Indian Penal Code, but     Viscount Sankey, L. C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof. Such an exception we find     in s.    105 of    the Indian Evidence Act. Reliance is placed by    learned counsel for the accused on the decision of the Privy Council in Attygalle v. Emperor in support of the contention that notwithstanding s. 105 of the Evidence Act, the burden of establishing the absence of accident within the meaning of    s. 80 of the Indian Penal Code is     on the     prosecution. In that    case, two persons were prosecuted, one for performing    an illegal operation and the other for abetting him in that crime. Under s. 106 of the Ordinance 14 of 601

1895 in     the Ceylon Code, which corresponds to s. 106 of    the Indian Evidence Act, it was enacted that when any    fact was especially within the knowledge of any person, the burden of proving that fact was upon him. Relying upon that section, the Judge in his charge to the jury said: "Miss Maye-that is the person upon whom the operation was alleged to    have been performed-was unconscious and what took place in that room that     three-quarters of an hour that she was under chloroform is a fact specially within the knowledge of these two accused who were there. The burden of proving that fact,     the law says, is upon him, namely that no criminal operation took    place but what took place was this and this speculum examination."

The Judicial Committee pointed out:

"It is not the law of Ceylon that the burden is    cast upon an accused    person    of proving that no crime has been committed. The jury might well have thought from the passage just quoted that that was in fact a burden which the    accused person    had to    discharge. The summing-up goes on     to explain the presumption of innocence in favour of accused persons, but it again reiterates     that the burden of proving that no criminal operation took place     is on    the two     accused who were there."

The said observations do not support the contention of learned    counsel. Section 106    of Ordinance 14 of 1895 of the Ceylon Code did not cast upon the accused    a burden to prove that he had not committed any crime; nor did it deal with any exception similar to that provided under s. 80 of the Indian Penal Code. It has no hearing on the construction of     s.105 of the Indian Evidence Act. The

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decisions of this Court in The State of Madras v. A. Vaidyanatha    Iyer (1), which deals with s. 4 of the Prevention of Corruption Act, 1947, and C.S.D. Swami v. The State(2),     which considers the scope of s. 5(3) of    the said Act, are examples of     a statute throwing the burden of proving and even of establishing the absence of some     of the ingredients of    the offence on the accused; and this Court held that notwithstanding the general burden on the prosecution to prove the offence, the burden of proving the     absence of the ingredients of the     offence under certain circumstances was on     the accused. Further citations are unnecessary as,    in our    view, the terms of s.105 of the Evidence Act are clear and unambiguous.

Mr. Pathak     contends that the accused did not rely upon any exception within the meaning of s.80 of the    Indian Penal Code and    that his plea all through has been only    that the prosecution has failed to establish intentional killing on his part. Alternatively, he argues that as the entire evidence has been adduced both by the prosecution and by    the accused, the burden of proof became only academic and the    jury was in a position to come to     one conclusion     or other on the evidence irrespective of     the burden of proof.    Before the Sessions Judge    the accused certainly relied upon s. 80 of the Indian Penal Code, and the Sessions Judge dealt with the defence case in the charge to the jury. In paragraph 6 of     the charge, the learned Sessions Judge stated:

"Before I proceed further I have    to point out    another section     which is section

80. You know by now that the defence of the accused is     that the firing of the revolver was a matter of accident during    a struggle for possession of the revolver. A struggle or a fight by itself     does not exempt a person. It is the accident which exempts     a person from criminal liability

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because there may be a fight, there may be a struggle and in the fight and in the struggle the assailant may over-power the victim and kill the deceased so that a struggle or     a fight by itself does not exempt an assailant. It is only an accident, whether    it is    in struggle or a fight or otherwise     which can exempt an    assailant. It is only an accident, whether it     is in    a struggle or a fight or otherwise which can exempt a prisoner from criminal liability. I shall draw your attention to section 80 which says:........ (section 80 read). You know that     there are several provisions     which are to be satisfied before the     benefit of this exception can be claimed by an accused person and it should be that the act itself must be an accident or misfortune, there     should be no criminal intention or knowledge in the doing of that act, that act itself must be done in a lawful manner and     it must be done by lawful means and further in the doing of it, you must do it with proper care and    caution. In this connection, therefore, even while considering the case    of accident, you will have    to consider all the factors, which might emerge from the evident before you, whether it was proper care and caution to take     a loaded revolver without     a safety catch to the residence of the person with whom you were going to talk and     it you do not get    an honourable answer    you was repaired to thrash him. You have also to consider this further circumstance whether it is an act with proper care and caution    to keep that loaded revolver in the hand and thereafter put it aside, whether that is taking proper care and caution. This is again a question of fact and you have to determine as     Judges     of fact, whether the act of the accused in this case can be said to be an act which was lawfully 604

done in a lawful manner and with proper care and caution. If it is so, then and only then can you call it accident or misfortune. This is a section which you will bear in mind when you consider the evidence in this case." In this paragraph the learned Sessions Judge mixed up the    ingredients of    the offence with those of the exception.    He did    not place before the jury the distinction     in the     matter of burden of proof between the ingredients of the offence and those of the    exception. He did not    tell the jury that where the accused relied upon the     exception embodied in s. 80 of the Indian Penal Code, there was a statutory presumption against him and the burden    of proof was     on him to rebut that presumption. What is more, he told the jury that it was    for them to decide whether the act of the accused in the case could be    said to     be an act which was lawfully done in a    lawful manner with proper    care and caution. This was    in effect abdicating his    funtions in favour of the jury. He should have explained to them the implications of the terms "lawful act", "lawful manner", "lawful means" and "with proper care    and caution" and pointed out to them the application of the said legal terminology to the facts of the case.    On such a    charge as in the present case, it was not possible for the jury,     who were laymen, to know the exact scope of the defence and     also the circumstances under which the plea under s. 80 of the Indian Penal Code was made out. They would not have also known that if s. 80 of the Indian Penal Code applied, there was a presumption against the accused and the burden     of proof to    rebut the presumption was     on him. In such circumstances, we cannot predicate that    the jury understood the legal implications of s. 80 of the Indian Penal Code and the scope of the burden of proof under s. 105 of    the Evidence Act, and    gave their verdict correctly. Nor can we say that the jury understood the distinction     between the ingredients of the offence

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and the     circumstances that attract s.     80 of the Indian Penal Code and    the impact of the proof of some of the said circumstances on the proof of the ingredients of    the offence. The said     omissions therefore are very grave omissions which certainly vitiated the verdict of the jury.

The next misdirection relates to the question of grave and sudden provocation. On this question, Shelat, J., made the following remarks: "Thus the question whether a confession of adultery by the wife of accused to him amounts to     grave and sudden provocation    or not was a question of law. In my view, the learned Session Judge was in error in telling the jury that the entire question was one of fact for them to    decide.     It was for the learned Judge to decide as a question of law whether the sudden confession by the wife of the accused amounted to    grave and sudden provocation as against the deceased Ahuja which on     the authorities referred    to hereinabove it was not. He was therefore in error in placing this alternative case to the jury for     their    determination instead    of deciding it himself."

The misdirection according to    the learned Judge was that the Sessions Judge in his charge did not tell the jury that the sudden     confession of the wife to     the accused did not in law    amount    to sudden and grave provocation by the deceased, and instead he left the entire question to be decided by the jury. The learned judge relied upon certain English decisions and textbooks in support of his conclusion that     the said question was one of law and that it was for the Judge to express his view thereon. Mr. Pathak contends that there is    an essential difference between the law of England and that of India in the matter of the charge to the jury in    respect     of grave and sudden provocation. The House of Lords

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in Holmes v. Director    of Public Prosecution (1) laid down the law in England thus:

"If there is     no sufficient     material, even on    a view     of the evidence most favourable to the accused, for a jury (which means a reasonable jury)    to form     the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct    the jury that the evidence does not support a verdict of manslaughter. If, on the other    hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to     passion or loss of control as to be     led to use    the violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict."

Viscount Simon brought out the distinction between the respective    duties of the judge and the jury succinctly by formulating the following questions: "The distinction, therefore, is between asking 'Could the evidence support the view that the provocation was sufficient to lead a reasonable person to do what the accused did ?' (which    is for    the judge to rule), and, assuming that the judge's ruling is in affirmative, asking the     jury:     'Do you consider that, on the facts as you find them from the evidence, the provocation was    in fact enough to lead a reasonable person to do what the

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accused did ?' and, if so, 'Did the accused act under the stress of such provocation' ?" So far as England is concerned the judgment of the House of Lords is the last word on the subject till it     is statutorily changed or modified by the House of Lords. It is not, therefore, necessary to consider the opinions of learned authors on the subject cited before us to show that     the said observations did not receive their approval. But Mr. Pathak contends that whatever might be the law in England, in India we are governed by the statutory    provisions, and that    under the explanation to Exception I to s. 300 of the Indian Penal Code, the question "whether the provocation was grave and sudden enough to prevent the offence from amounting    to murder is one of fact", and therefore, unlike in England,    in India both the aforesaid questions fall entirely within the scope of the    jury and they are for them to decide. To put it in other words, whether a reasonable person in the     circumstances     of a particular case committed the offence under provocation which was grave and sudden is a question of fact for the jury to     decide. There    is force in this argument, but it    is not    necessary to express    our final opinion thereon, as the learned Attorney-General has conceded that there was no misdirection in regard to this matter.

P.W. 7 has stated in his evidence that the voice of P.W. 8 who was the Presiding Officer at kalaka polling station is recorded in the tape, that the tape contains also he conversation of the alternate Presiding Officer, Roop Chand (R.W. 1) and that the voice of the Constable Mohinder Singh (R.W. 3) who was on duty at the polling station and had made a complaint to him is also recorded in the tape. It is true that he has admitted in his cross-examination that he cannot identify the voice with any of the persons mentioned by him. The transcript of the tape (P.W. 7/1) after it had been recorded in a larger tape with the help of a re sophisticated instrument in this Court was prepared by this Court and some portions thereof has been admitted by R.W. 22 to be in his voice and he has recognised in the larger tape the voice of even P.W. 7 in some portions of the conversation which admittedly took place between him and P.W. 7 in the office of R.W. 10 at about 7.30 p.m. On 19.5.1982. It is seen from the transcript that some one had answered the question about what his name and number were and that one Mohinder Singh had answered saying that his name and number were Mohinder Singh and 498 which tally with those of R.W. 3. In the answer to question as to how many persons came inside the polling station Mohinder Singh had stated that four persons case inside and 20 or 30 persons were remaining outside and there were also 5 or 6 vehicles. In answer to the question whether he had seen arms or ammunitions in the hands of those persons who stood outside and of those four persons who entered the polling station Mohinder Singh had stated that perhaps Colonel Sahib, referring to the respondent, was armed with a gun while some persons were armed with swords and some 2 or 3 persons were armed with lathis. It is further seen that in answer to the question as to what he was and what was his name one Roop Chand informed the question that he was Roop Chand and a Stenographer in the Project Office of the Agricultural Department in Haryana. These particulars tally with those 478

of R.W. 1. It is seen from the tape that P.W. 17 had also answered certain questions saying inter alia that he was Amar Singh, polling agent of the Congress (I) candidate and that there were 5 or o vehicles with a number of persons in them. It is also seen from the tape that during the course of conversation between the respondent and P.W. 7 at the office of P.W. 10 the fact that P.W. 7 had gone to Kalaka polling station immediately after the respondent and others left the place and that he got the statements tape-recorded there was mentioned by P.W. 7 to the respondent. In these circumstances great reliance has to be placed on the tape (Ex.P.W. 7/1) and is contents not only for corroborating the evidence of P.Ws. 7 and 8 to the extent they go but also as res gestae evidence of the first part of the incident. The learned trial Judge was not justified in rejecting the tape- record (Ex.P.W. 7/1) and the transcript (Ex.P-1). It must be remembered that the respondent who had openly disowned any art of the tape as containing his voice and had, on the other hand, gone to the extent of saying in the trial Court that it rather contained the voice of Rao Birendra Singh has admitted in this Court portions of that tape as being in his voice and that he has stated that he cannot identify any voice other than those of himself and P.W. 7. Coming now to Ex. P-2, P.W. 7 has stated in that report that around 10.30 a.m. when he was proceeding by his car between Manodola and Zainabad villages he received a message on the 4 police wireless that in Rewari Constituency the Congress (J) candidate had complained that about 50 to 60 Congress (I) workers had attacked his workers in Kalaka village. He immediately directed the Station House 'Officer of Sadar Rewari to rush to the village. At 11.35 a.m. he received a message on the police wire less that villagers had refused to vote in Kalaka alleging that Congress (J) workers had polled some bogus votes in Kalaka polling station. Therefore he proceeded to Kalaka polling station and interrogated the Presiding Officer and the polling officers of the polling station and recorded the conversation in his tape-recorder. When he was told that Congress (J) workers came into the polling station and snatched ballot papers from the polling staff and polled them in favour of the respondent, he advised the polling officer to accept tendered votes from the electors if they came to the polling station for voting and he thereafter went to Burthal Jat. This report submitted by P.W. 7 some time after the results of the poll were announced corroborates the evidence of P.W. 7 about what he did at the polling h station soon after he went there on receipt of a wireless message about the polling of bogus votes in favour of the respondent.

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With respect to the office which he holds, the respondent, as a party and his own witness, is wholly unreliable. In his written statement he had vaguely alleged that the men of Rao birendra Singh captured the booth at Kalaka aud the supporters and voters of the respondent were badly out-manoeuvred and that the said fact could be gathered from the fact that whereas Sumitra Devi had obtained 484 votes he had obtained only 53 votes in that polling station. The only suggestion made to P.Ws. 12 and 17 who have denied it is that Ajit Singh visited the Kalaka polling station. No suggestion was made to any of the witnesses examined on the side of the appellants in the cross-examination that Ajit Singh came armed with some armed companions and beat R.W. 5 and Tula Ram and dragged them out and that they forcibly polled bogus votes. Such a case was projected by the respondent only after the respondent started to let in oral evidence on his side after the appellants had closed their evidence. In these circumstances, when questioned as to why he had not made any complaint naming Ajit Singh specifically for the incident at Kalaka R.W. 22 has stated in his evidence that it is not because such an incident never happened but because the picture was not clear at that time. It is impossible to accept this explanation of R.W. 22, for the polling took place on 19.5.1982 and the respondent filed his written statement in the election petition long thereafter on 14.9.1982. If, as the respondent would have it, Tula Ram and R.W. 5 came to his residence at Rewari in the morning of 19.5.1982 and informed him about the incident at the Kalaka polling station and there after he went there and complained to P.W. 8 about it, he should have come to know about the details of the incident before he filed his written statement long thereafter on 1.9.1982. If by 14.9.1982 the picture of what happened at the Kalaka polling station 19.5.1982 was not clear it is not known how it would have become clear only after appellants had closed their evidence and just before the respondent began to let in oral evidence on his side. Therefore, the explanation of R.W.22 that he had not named Ajit Singh specifically in relation to the incident at the Kalaka polling station not because it never happened in the manner stated by his witnesses but because the picture was not clear at that time cannot be accepted at all.

R.W. 22 had stoutly denied in the trial Court that the tape record (Ex. P.W. 7/1) contained his voice but added that it is rather the voice of Rao Birendra Singh. But after the tape was recorded with the aid of a more sophisticated instrument by playing it in this Court in the presence of the respondent in the

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office and also in the open Court, R.W. 22 has admitted some portions of his conversation with R.W. 7 in the office of P.W. 10 at about 7 or 7.30 a.m. On 19.5.1982. In the cross examination made in this Court after R.W. 22 had heard the re-recorded larger tape being played in the Court R.W. 22 has stated that he could not recognise the voice of any person in the tape other than those of himself and P.W. 7. If the tape used by P.W. 7 for recording the conversation could not be followed and understood clearly when it was played in the trial court with the very same instrument by which it was recorded what R.W. 22 could have said was that he cannot say whether it contains his voice but he could not have gone to the extent of saying that it does not contain his voice but it rather contains the voice of Rao Birendra Singh. This also shows that the evidence of R.W. 22 is not reliable.

In his cross examination in this Court R.W. 22 has stated that he was the Speaker of the Haryana Legislative Assembly until the new Legislative Assembly met after the elections in May, 1982 and could therefore have summoned any officer to his office and he did not go to the police station on 19.5.1982 and he is quite positive about it. But in the later portion of his evidence in this Court he has stated that not only his admission of the transcript of the tape (Ex. P-l) to the effect that he went to the police station but also his written statement that he did not go to the police station on 19.5.1982 are both correct and that he would emphasize that he did not go to the police station at all on that day. He has also stated that although the voice in the tape says that he went to the police station and that voice appears to be his own voice he did not go to the police station because he was the Speaker of the Haryana Legislative Assembly on that day and could have summoned any police officer to his office. However, it is his own evidence that he did go to the office of P.W. 10 to meet P.W. 7 at about 7 or 7.30 p.m. On 19.5.1982. This also shows that the evidence of R.W. 22 is not reliable. R.W. 22 has admitted the voice in the tape that when P.W. 7 asked him about when he received the message about the incident at the Kalaka polling station he answered by saying that it was about 11.30 a.m. and that it is correctly recorded in the tape. It is seen from the transcript that the respondent had stated in that conversation that he thereafter went to the Kalaka polling station and questioned his men as to whether they were not ashamed that two or three 'chaps' belonging to the same village had been beaten. However, he would say in his evidence that he 481

went to Kalaka only once on 19.5.1982 and that it was about 9 or 9.30 a.m. There is abundant unimpeachable evidence on the side of the appellants to show that the respondent, armed with a rifle, visited Kalaka polling station accompanied by some armed persons at about 11.30 a.m. or 12 noon, and indulged in the polling of bogus votes. P.W. 7 had stated in the course of his tape recorded conversation with the respondent in the office of P.W 10 at about 7 or 7.30 p.m. on 19.5.1982 that he visited Kalaka polling station soon after the respondent had left that place. R.W. 22 has admitted in his cross examination in this Court that the statement of P.W. 7 that he was there at about 12 noon or 12.05 p.m. refers to Kalaka polling station and that P.W. 7 told him that the Presiding Officer told him a different story about the incident which took place in that polling station. It is, therefore, clear that the respondent has attempted to make a futile effort to show that he visited the Kalaka polling station with R.W. 5 and others only at about 9 or 9.30 a.m. On 19.5.1982 and not at the time of the first part of the incident alleged by the appellants. The written statement is silent on the question whether the respondent visited Kalaka polling station on 19.5.1982 except a mere denial. The respondent unsuccessfully attempted to file an additional or amended written statement to the effect inter alia that he had decided not to move out of his house and had not gone out of his house on 19.5.1982. This portion of the additional or amended written statement which had not been received by the Court was put to him in cross examination by Mr. Sibbal. R.W. 22 has stated that there appears to be a typing error in that statement that he did not move out of his house on that day and that what he meant to say was that as a consequence of the assurance of his supporters that he was going to succeed he acceded to their wish and had decided not to move out of his house on that day. He would say that he did not read that amended written statement and had no sufficient time to read it properly but that he did not give specific instructions to his counsel on that matter and was told by his supporters not to move out of his house on 19.5.1982 and that the fact that he went to Kalaka village on 19.5.1982 is not mentioned in that amended written statement though inspite of deciding not to move out of his house on that day he did go to Kalaka village on that day. This also shows that the evidence of R.W. 22 is not reliable.

In the election petition it is alleged in relation to the incident at the Burthal Jat polling station that Anil Kumar and Satbir Singh are the relatives of the respondent. There is no

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denial much less any spefic denial of this allegation in the written statement of the respondent though it is a material fact which ought to have been denied specifically if it was not admitted. Therefore, under 0.8 r. 5 of the Code of Civil Procedure which applies to proceedings in election petitions it must be deemed to have been admitted by the respondent. Order 8 rule 5 reads:

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

But during the trial R.W. 22 had repeatedly denied that Anil Kumar and Satbir Singh were in any way related to him though in a portion of his evidence he would say that satbir Singh is the adopted son of Jagmal Singh, father of his wife who was divorced in 1962 and that he does not known if Anil Kumar is the brother of his brother-in-law, Surinder Kumar and he could not deny or admit that he is the brother of his brother-in-law, Surinder Kumar as Surinder Kumar has 6 or 7 brothers. He has stated that he does not know whether Anil Kumar and Satbir Singh are the two persons who were arrested in Burthal Jat village on 19.5.1982 for offences under section 107 and 151 of the Code of Criminal Procedure and that he had not exhibited grave concern about Anil Kumar and Satbir Singh in the course of his conversation with P.W. 7 in the office of P.W. 10 at 7 or 7.30 p.m. On 19.5.1982 or told P.W. 7 that they were his relatives. But in his cross examination in this Court he has admitted that Anil Kumar and Satbir Singh had been arrested by the police at the instance of P.W. 7 at the burthal Jat polling station on 19.5.1982 and that he had referred to them as his relations only because P.W. 7 had not taken any steps inspite of his repeated representation in regard to the arrest of those two persons. It is not possible to accept the evidence of R.W. 22 that because no steps were taken by P.W. 7 on his repeated requests for the release of Anil Kumar and Satbir Singh he told P.W. 7 that they were his close relatives, for he had admitted in his evidence in this Court that he would have left no stone unturned if his partymen and workers were harassed even though they may not be his relatives. It appears from this portion of the evidence of R.W. 22 that it would have been unnecessary for him to claim Anil Kumar and 483

Satbir Singh to be his close relatives merely to prevent them from being harassed by the police after their arrest on A 19.5.1982. He has stated in his evidence in this Court that because he was told by his workers that two of his relatives had been arrested and their identity was not clear to him when he had the Conversation with P.W. 7 in the office of P.W. 10 on 19.5.1982. he referred to them in the course of his conversation as his relatives. He has also stated that it is only after P.W. 7 mentioned their names and identity that he new that they were Anil kumar and Satbir Singh and that they were not his relatives. In the subsequent portion of his evidence he has stated that he had never deposed in this Court that P.W. 7 mentioned the name of Anil Kumar to him. In an other portion of his evidence in cross examination in his Court he has admitted that the statement in that conversation that he told P.W. 7 that Anil Kumar and Satbir Singh were his relatives is correct. Thus, it is seen that R.W.. 22 has given varying versions on the question whether Anil Kumar and Satbir Singh were his relatives or not though he has admittedly informed P.W. 7 in the course of his conversation with him in the office of P.W. 10 on 19.5.1982 that they were his close relatives. This also shows that the evidence of R.W. 22 is not reliable.

The evidence of the private witnesses examined by the appellants to depose about the first part of the incident in the Kalaka polling station is fully corroborated by the evidence of the Presiding Officer (P.W.8) and received ample corroboration from the evidence of P.Ws. 7 and 10. Their evidence is corroborated by the reliable and contemporaneous documentary evidence by way of Exs. P-5, P-6 and the tape record Ex. P.W.7/1 which are unimpeachable and also by what has been stated by P.W. 7 in his report (Ex. P-2) submitted by him to the Government some time after the results of the election held in May 1982 were announced. Therefore, I reject the evidence of the respondent and the other witnesses who have deposed on his side in regard to this part of the incident in the Kalaka polling station and accept the evidence of P.W. 8 and the other witnesses who have deposed about the same on the side of the appellants election petitioners and hold that the appellants have proved satisfactorily and beyond reasonable doubt the first part of the incident in Kalaka polling station, namely that the respondent went armed with a rifle with 25 or 30 companions and entered the polling station with 4 or 5 armed companions and threatened the Presiding Officer (P.W. 8) and others including the polling agents who were present in the polling station with the use of force and got some ballot papers marked in favour of the respondent polled forcibly by his

484

companions in the ballot box and that they left the polling station on seeing the villagers of Kalaka and police personnel coming towards the Kalaka polling station. There is no doubt that there is some discrepancy in the evidence regarding the time of the incident. But it is not a material discrepancy.

I shall now consider the evidence relating to the second part of the incident at the Kalaka polling station. Mr. Sibbal did not press the case of the appellants regarding the second part of the incident at the Kalaka polling station in his principal argument but he pressed that portion of the appellants' case after Mr. Rao contended in the course of his argument that what is alleged to have happened inside the polling station, even if true, will not constitute any corrupt practice but would amount only to an electoral offence. Regarding this part of the case there is the evidence of Tara Chand (P.W. 12), Sheo Chand (P.W. 13), Puran (P.W. 14), Inder Singh (P.W. 16) and Mangal Singh (P.W. 18), on the side of the appellants. Gur Dial who has been referred to in the election petition in this connection was tendered as P.W. 15 for cross-examination but he has not been cross-examined by the learned counsel for the respondent. P.W. 12 who was one of the electors and the polling agent of Sumitra Bai in the election with which we are concerned at the Kalaka polling station has stated that when he was arranging the electors to stand in a queue for the purpose of voting, the respondent came there with 60 or 70 persons at about 10.30 a.m., The respondent armed with a gun while some of his companions were armed with swords, pistols and sticks. The respondent and his companions threatened PWs. 14,15,17 and others including Kesar Lal who had come to the polling station for the purpose of casting their votes and asked them to go away from there and they consequently ran away from the polling station. Amongst the respondent's companions who did so P.W. 12 knows only Desh Raj Krishan Lal and Ram Krishan (R.W. 5) of Kalaka and Balbir Singh, Raghubir Singh and Umrao Singh. P.W. 12 has not been seriously examined on this portion of his evidence. What has been elicited in his cross-examination is that he was the polling agent of Congress (I) candidates even in the earlier elections and he had convassed for the Congress (I) candidate in the election with which we are concerned for 5 or 10 days and that he reported to the police after the completion of the poll but the police did not send for anybody on that complaint.

P.W. 13 has stated that when he was standing in the queue awaiting his turn for casting his vote after reaching Kalaka

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polling station at about 10 a.m. the respondent came there at about 10 a.m. alongwith 50 or 60 persons in two or three vehicles namely, a truck and two motor cycles. The respondent was armed with a gun while his companions including Desh Raj, Krishan Lal and Ram Krishan (R.W. 5) were armed with swords, rifles and lathis. Lambardar Ishwar (P.W. 16), Puran (P.W. 14), Ram Singh and others were standing in the queue at that time. The respondent threatened P.W. 13 and others saying that they cannot cast their votes and he asked them to go away under threat of being beaten and shot, and out of fear P.W. 13 and others who were standing in the queue ran away. It has been elicited in his cross-examination that he came back and cast his vote at 2 p.m. and that he cannot say whether the others who were in the queue and had run away had come again or not for casting their votes.

P.W. 14 has stated that he had gone to the polling station at about 10 or 11 a.m. for casting his vote and was standing in the queue alongwith others. The respondent came there armed with a gun, accompanied by 50 or 60 persons including Desh Raj, Krishan Lal, Balbir Singh, Ram Krishan (R.W. 5) and a Sikharmed with a kirpan.. The respondent's companions created a commotion and the respondent threatened P.W. 17 and others who were in the queue to run away on pain of being killed otherwise and out of fear all the persons who were in the queue ran away. In his cross-examination he has stated that about 15 or 20 persons were standing in the queue when the respondent and his companions arrived at the polling station and that he cast his vote later at about 3 p.m. after calm prevailed all around. He has denied the suggestion that he had given false evidence being a Congress (I) worker.

Ishwar Singh (P.W. 16) the Lambardar of Kalaka village has stated that when he was standing in the queue along with 14 or 15 persons at about 10 or 10.30 a.m. awaiting his turn for casting his vote the respondent came there, accompanied by 3 or 4 persons including Desh Raj and Krishan Lal (R.W. 6) of his village and threatened to kill him and he was hit with the butt of a gun by one of the companions of the respondent and he ran away. He has also stated that P.Ws. 13,14,15 and 17 were also standing in the queue alongwith him and that after he informed the people of the village that the respondent had come and threatened him the people of the village collected and came towards the polling station whereupon respondent and his companions ran away leaving behind two motor-cycles by which respondent's companions had come there. There is abundant evidence on the side of the appellants,

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referred to above, to show that when P.W. 7 and other officials arrived after the incident in and at the Kalaka polling station they found two motor-cycles abandoned at that place. P.W. 16 has denied the suggestion that he has deposed falsely being the supporter of the Congress (I) party.

P.W. 18 has stated that when he was inside Kalaka polling station and his particulars were being checked before he could be allowed to vote the respondent came there and that 20 or 25 persons were standing in the queue ran away. He has admitted in his cross-examination that he had canvassed for the Congress (I) party but has denied the suggestion that he has always been helping the Congress (I) candidates and has given false evidence on account of that reason.

This is all the oral evidence on the side of the appellants regarding tho respondent threatening electors who were standing in the queue at the Kalaka polling station awaiting their turn for casting their votes in the morning on 19.5.1982 and scaring them away under threat of violence against their person and thereby preventing them from exercising their electoral right. The evidence on the side of the respondent has been referred to above in the discussion relating to the first part of the incident at the Kalaka polling station and has been found to be not reliable. It has been found earlier that the evidence of R.W. 22 and his witnesses that R.W. 22 went to Kalaka polling station by a car with some of his men only at about 9 or 9.30 a.m. On 19.5.1982 could not be accepted and that the respondent had received information at about 10.30 a.m. about some Congress (J) workers having been beaten by Congress (I) workers in Kalaka, which message had been flashed by the police wireless and received by P.W. 7 and he went there only thereafter. There is unimpeachable evidence on the side of the appellants to show that when the respondent went inside Kalaka polling station he was in a rage. In these circumstances, it is probable that while in such a mood after receipt of some report that his workers were beaten by Congress (I) workers he went there and asked his men whether they were not ashamed about 2 or 3 of their men of the same village having been beaten and that he thereafter indulged in the acts alleged in the election petition both outside and inside the polling station at Kalaka. P.W. 7 who reached Kalaka polling station soon thereafter received oral report about the detention of a motor cycle belonging to Congress (J) workers. In these circumstances, 1 accept the evidence of PWs. 12, 13, 16 and 18 referred to above and find that the respondent came to the

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Kalaka polling station at about 10.30 a.m. on 19.5.1982, armed with a rifle and accompanied by his companions some of whom were armed with deadly weapons and that he threatened the electors who were standing in the queue awaiting their turn for casting their votes on account of which they ran away and he had thus interfered with the exercise of the electoral right of those persons. There is some discrepancy in the evidence about the time of arrival of the respondent and his men. It is not a material discrepancy.

About the incident at Burthal Jat polling station there is the evidence of P.Ws. 7, 9 and 10 who are official witnesses and of Mahabir Singh (P.W. 26), Dharam Vir (P.W. 27), Thavar Singh S (P.W. 28), Amir Chand (P.W. 29), Surjit Singh (P.W. 30), Raghubir Singh (P.W. 31), Shamsher Singh (P.W. 32), Kishori Lal (P.W. 33), Ram Narain (P.W. 34) and Mam Chand (P.W. 35) on the side of the appellants. There is evidence of Ravi Datt Sharma (R.W. 11), Parbhati (R.W. 12), Ami Lal (R.W. 13), Sheo Chand (R.W. 14) and the respondent (R.W. 22) on the side of the respondent.

P.W. 26 of Burthal Jat village was the polling agent of the respondent himself and he had filed the form (Ex. P-16) dated 18.5.1982 for the same. He has stated in his evidence that he had gone to the polling station at 7 a.m. and had not seen any incident at that place. It is clear that P.W. 26 was not prepared to go the whole hog to support the case of the appellants as regards the incident at the Burthal Jat polling station but he has stated in his cross-examination that when he went to the polling station he saw Anil Kumar and Satbir Singh were canvassing votes for their candidate and that he also saw a jeep with sticks. The learned trial Judge has stated in his judgment that though the evidence establishes that Anil Kumar and Satbir Singh were canvassing votes for their candidate lt is not known from the evidence as to who their candidate was. But lt is clear from the evidence referred to already showing the concern of the respondent for Anil Kumar and Satbir Singh who had been arrested by the police at the Burthal Jat polling station that the candidate for whom they were canvassing could not have been any other than the respondent. P.W. 26 has admitted in his cross-examination that Satbir Singh was known to him previously and that he (P.W. 26) was on duty inside the polling station.

P.W. 27 of Burthal Jat village has stated in his evidence that he had gone to Burthal Jat polling station at 8 a.m. for casting his vote in the election held in May, 1982. The

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respondent came there at about 8 a.m. accompanied by 50 or 60 persons and told his polling agents, Mahabir and Udhey Bhan that he was leaving some persons behind and he asked them to see that no one is permitted to vote for the Congress (I) candidate and that they should ensure to have maximum votes polled in his favour in that polling station. The respondent left behind 15 or 16 persons including Anil Kumar and Satbir Singh, one of them a Sikh armed with a sword and the others with pistol and sticks and the other persons who came with the respondent went away with him. In his cross-examination he has stated that the respondent came to Burthal Jat polling station in a car while his companions came by a motor-cycle, a jeep and a truck. No doubt he is unable to mention the numbers or colour of the vehicles or the colour of the turban of the respondent's Sikh companion and he has stated that he cannot identity Satbir Singh. He has denied the suggestion that he is a supporter of Rao Birendra Singh and his sister and that the respondent did not come to Burthal Jat polling station at all on that day. P.W. 28 who belongs to Burthal Jat village has stated in his evidence that after he went to the polling station the respondent came there accompanied 50 or 60 persons at about 8 a.m. The respondent was armed with a small gun while his companions were armed with rifles, ballas and sticks. The respondent called his polling agents Mahabir and Udhey Bhan and told them that they should not permit even a single vote to be cast in favour of the Congress (I) candidate and he was leaving behind Anil Kumar and Satbir Singh alongwith 15 or 20 persons for their help. The other people left behind by the respondent were armed with lathis. He has admitted in his cross-examination that he was the polling agent of Sumitra Devi but he has denied the suggestion that the respondent did not go to the polling station at all on that day and that he has given false evidence. P.W. 29 who belongs to Burthal Jat village has stated in his evidence that he went to the polling station at about 8 a.m. for casting his vote in the election with which we are concerned. The respondent accompanied by 50 or 60 persons came there at about 8 a.m. and sent for his polling agents Mahabir and Udhey Bhan and told them they should not permit anyone to vote in favour of the Congress (I) candidate. PWs. 27 and 28 and many other persons were present when the respondent said so. The respondent told Mahabir and Udhey Bhan that he was leaving behind Anil Kumar and Satbir Singh for their help alongwith 15 or 20 persons who were found by P.W. 29 to be armed with sticks. P.W. 489

29 was not permitted to cast his vote earlier and he therefore, came again and cast his vote at 3 p.m. He has stated in his cross-examination that he returned to his house after 8 a.m. Out of fear and went back to the polling station at 3 p.m. for casting his vote and stayed there till the afternoon. He has denied the suggestion that the respondent did not visit Burthal Jat polling station on that day.

P.W. 30 who belongs to Burthal Jat village has stated in his evidence that he started to go to the polling station at about 10.30 a.m. for casting his vote in the election with which we are concerned. When he emerged from his village to proceed to the polling station for casting his vote Anil Kumar and Satbir Singh met him and asked him as to whom he was going to cast his vote and they insisted that he should vote for the respondent. On his refusal to do so Anil Kumar and Satbir Singh threatened P.W. 30 when 2 or 3 persons armed with sticks were present with those two persons and he therefore returned to his house. He went to the polling station at about 3.30 p.m. for casting his vote and learnt that Anil Kumar and Satbir Singh had been arrested by the police. He has stated in his cross- examination that he does not know to which place Anil Kumar and Satbir Singh belong and that when he came to the polling station later at about 3 p.m. he was told that those two persons were Anil Kumar and Satbir Singh. He has denied the suggestion that he had been a supporter of Rao Birendra Singh in all the elections and that he has given false evidence.

P.W. 31 who belongs to Burthal Jat village has stated in his evidence that when he went to the polling station at 11 a.m. for casting his vote in the election with which we are concerned he was accosted by Anil Kumar and Satbir Singh who were present there alongwith 20 or 30 persons armed with sticks about 25 yards away from the boundary of the polling station and they asked him as to the person for whom he was going to cast his vote and they insisted that he should vote for the respondent and threatened him when he replied that he would vote for the candidate of his own choice. In view of the threat he went back to the village and came later for casting his vote a, about 3. p.m. and learnt that Anil Kumar and Satbir Singh had been taken into custody by the police. He has admitted in his cross-examination that he did not complain to anybody about the threat but he has denied the suggestion that he has given false evidence. P.W. 32 is the Sarpanch of Burhtal Jat village. He was admittedly the polling agent of Sumitra Devi. He has stated in

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his evidence that he went to Burthal Jat polling station for the second time at 2.30 p.m. When he approached the main gate of the polling station he met Anil Kumar and Satbir Singh and they asked him to support the respondent and when he told them that it was open to him to vote for the candidate of his own choice there was an altercation and they started beating him and he was rescued by P.Ws. 33, 35 and others of his village. Meanwhile, an Assistant Sub- Inspector of police came there by jeep and they hurled abuses at him even in the presence of the Assistant Sub- Inspector of police and thereupon that police officer arrested Anil Kumar and Satbir Singh. He saw a jeep containing sticks parked there, and the people who were in the jeep ran away when the police arrived. He brought these facts to the notice of P.Ws. 7 and 10 when they came there and they took the jeep and the sticks into their custody. Anil Kumar was sitting on the motor-cycle while Satbir Singh was standing on the road-side when they confronted him as stated above and their motor-cycle was taken into custody by the police. In his cross-examination lt has been elicited that he did not report in writing to P.Ws. 7 and 10 or get himself medically examined or file any complaint in any Court against Anil Kumar and Satbir Singh. He has denied the suggestion that he had strained relations with Satbir Singh because of his election to a cooperative society and that he has given false evidence because he was the polling agent of Sumitra Devi.

P.W. 33 who is the chowkidar of Burthal Jat village has stated in his evidence that when he went to the polling station at about 2.30 or 3 p.m., during the last election to the Haryana Legislative Assembly he saw Anil Kumar and Satbir Singh abusing and beating P.W. 32. P.W. 33 and Lambardar Mam Chand (P.W. 35) and another Lambardar Ram Singh and others of Burthal Jat village separated P.W. 32 from Anil Kumar and Satbir Singh. Meanwhile, an Assistant Sub-Inspector of police came there, and about 10 or 15 other persons who were with Anil Kumar and Satbir Singh ran away on seeing the police after leaving behind a jeep and a motorcycle which were taken into custody by the police. P.W. 32 informed P.Ws. 7 and 10 about what happened when they came there some time later. In his cross- examination he has denied that P.W. 32 was not present at all at the Burthal Jat polling station but was in his village at the time of the poll. He has denied that he was appointed as Chowkidar by P.W. 32 and has stated that he is Chowkidar of the village since 1982 and that P.W. 32 became Sarpanch of Burthal Jat village only recently. He has denied the suggestion that no incident at all took place in the village and that he had given false evidence under the influence of P.W. 32.

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P.W.34, the Lambardar of Kakoria village situate close to Burthal Jat village, has stated in his evidence that he went to Burthal Jat polling station at about 2.30 or 3 p.m. for casting his vote in the last election to The Haryana Legislative Assembly and saw Anil Kumar and & Satbir Singh slapping and fisting P.W. 32. He and P.W. 35 and others intervened and separated them. Some time thereafter a Sub- Inspector of police came and saw Anil Kumar and Satbir Singh exchanging abuses with P.W. 32 and he arrested those two persons. P.Ws. 7 and 10 who came there later talked with Anil Kumar and Satbir Singh. The police took a motor-cycle and a jeep which was with Anil Kumar and Satbir Singh into their custody. In his cross-examination he has stated that he had not meet Anil Kumar and Satbir Singh previously and that he does not know the numbers of the jeep and the motor cycle. He has denied the suggestion that he had supported Rao Birendra Singh in the election to Parliament in 1980 and did not go to Burthal Jat village at all during the election in question and has deposed falsely under the influence of the appellants.

PW 35 son of Umrao Singh and Lambardar of Burthal Jat village was the polling agent of the Bhartiya Janata Party candidate in the last election of the Haryana Legislative Assembly. He has stated that after he reached Burthal Jat polling station at 7 a.m. the respondent came there at about 8 a.m. accompanied by 50 or 60 persons and called his polling agents and told them that they should see to it that the Congress (I) candidate does not get votes and he added that he was leaving Anil Kumar and Satbir Singh and 15 other persons for their help. At about 2.30 p.m. PW 35 saw Anil Kumar and Satbir Singh beating PW 32 of his village and thereupon he and PWs. 33 and 34 separated them. Meanwhile, an Assistant sub-Inspector of police took Anil Kumar and Satbir Singh into custody, and 10 or 15 persons who were left behind by the respondent fled on seeing the police leaving behind a motorcycle and a jeep containing sticks and other weapons. PWs. 7 and 10 came there some time later and the motor-cycle and the jeep were taken into custody by the police. In his cross-examination he has denied that Ex.P-9 to which reference would be made a little later contains his signature and he has stated that there are two other persons of his name and one of them is the son of Umrao Singh. He has further stated in his cross-examination that the respondent told Anil Kumar and Satbir Singh that they should see to it that no other candidate except himself gets votes in that polling station. He has denied that he had made a false statement before PWs 7 and 10 and that he has given false evidence being a member of the opposite faction. 492

The Deputy Commissioner and District Election Officer (PW.7) has stated in his evidence that on the. day of poll he proceeded from Kalaka polling station to Burhtal Jat polling station pursuant to the receipt of` a complaint that a Congress(J) worker was attacked by the villagers of Burthal Jat. The polling officer of Burthal Jat polling station told him when he visited that place that nothing had happened inside the polling station but some of the officers in the polling station told him that there was some incidents outside the polling station though they were not sure about the identity of the persons responsible for the same. Some villages told PW 7 that Congress (J) workers had come in a jeep and tried to create trouble and that one of them ran away while the police had detained two of those persons. PW 7 interrogated those two persons and they then told him that they had nothing to do with the jeep whose number he has recorded in the tape Ex.PW 7/1. PW 7 found some sticks in the jeep and he asked the police to take the jeep and the sticks into their custody. Anil Kumar and Satbir Singh who had been attacked by the villagers were found detained by the police. The Sarpanch of Burthal Jat village (PW 32) made a complaint to him outside the Burthal Jat polling station. PW 7 recorded the conversation which he had with the Presiding Officer at the Burthal Jat polling station but some portion thereof was erased by his own voice by inadvertence. The respondent met PW 7 at about 7 p.m. in the office of PW 10 and informed PW 7 about some incidents which had taken place during the day and complained to him about them. The conversation which he had with the respondent at that time was recorded simultaneously in the tape (Ex. PW 7/1) and he later reported to the Secretary to the Government about the complaint which the respondent made to him against the Superintendent of Police. His stenographer prepared the transcript Ex.P-1 in his office, most of it under his supervision and he was temporarily absent to attend to some other work, and he compared it with the original tape and found it to be correct. The tape, tape-recorder and transcript remained with him throughout and were not deposited by him in the record room and there was no possibility of tampering. He had not created evidence in the form of the tape at the instance of Rao Birendra Singh to harm the respondent. Ex.P-2 is the copy of the report which he submitted about the incidents which took place on 19.5.1982 as had come to his notice. In his report Ex.P-2 sent to the Secretary to the Government, PW 7 has stated inter alia that when he went to Burthal Jat polling station from Kalaka polling station he was told that a few workers of the Congress (J) candidate had been detained by the villagers and he had conversation with the Presiding Officer and

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the villagers and found a jeep with about 15 or 20 lathis in it and directed the police to take the jeep with the lathis as also the two workers of the Congress (J) candidate who were standing near the jeep into custody.

The Returning Officer and Sub-Divisional Officer, Rewari (PW 10) who went to Burthal Jat polling station along with PW 7 has stated in his evidence that he saw Anil Kumar and Satbir Singh surrounded by the people of that village and a jeep containing some sticks parked there and that Anil Kumar and Satbir Singh and the jeep were taken into custody by the police under the orders of PW 7. He has further stated that Ex.P-9 was handed over to him by one Mam Chand of Burthal Jat village on that day. As stated earlier PW 35 who is Mam Chand son of Umrao Singh of Burthal Jat village has disowned Ex.P-9. In his cross-examination PW 10 has denied that he had discriminated between the candidates while disposing of the complaints about Kalaka and Burthal Jat polling stations. Ex.P-9 addressed by Mam Chand to PW 10 is to the effect that the respondent pointed out his gun at the Presiding Officer and other persons in Burthal Jat polling station after he came there at about 1.30 p.m. along with 65 or 70 persons and he ordered for the ballot papers being marked with the symbol of scales and put into ballot boxes and to finish off anybody who interferes and that the whole village was terrorised and they were thereby prevented from exercising their electoral right. There is no specific reference in this report to Anil Kumar and Satbir Singh or to their arrest by the police at the instance of PW 7. Ex.P- 9 which was found in the file summoned from the office of the Sub-Divisional Officer, Rewari had been marked only through PW 10 and has been disowned by PW 35 who is no doubt Mam Chand son of Umrao Singh. For want of proof Ex.P-9 could not be taken into consideration, but the learned Trial Judge has relied very heavily upon that document for disbelieving the appellants' case regarding the incident at Burthal Jat polling station. He was not justified in doing so. The Assistant Sub-Inspector of police (PW 9) who had been posted at Sadar Rewari police station has stated in his evidence that at the instance of Assistant Sub-Inspector Jagan Nath who returned to the police station at 3.30 p.m. on 19.5.1982 he recorded a Daily Diary Report of which Ex.P- 8 is a copy and that Ex.P-8 is a correct copy of the original report. It is mentioned in Ex.P-8 that Anil Kumar and Satbir Singh of Kutubpur and Dulana respectively were abusing and beating Sarpanch Shamsher Singh (PW 32) whereupon an Assistant Sub-Inspector of police 494

along with other intervened and separated them, that Anil Kumar and Satbir Singh were creating a situation of breach of peace ant were therefore taken into police custody and that the jeep bearing registration number DED-3203 was also taken into police custody. PW 9 has not been cross-examined regarding Ex.P-8. Ex.P-28 is a copy of the judgment in the case registered in the concerned FIR No.104 of 1982 dated 19.5.1982 under sections 107 and 151 of Code of Criminal Procedure against Anil Kumar and Satbir Singh. It is seen from that judgment that the Magistrate after considering the circumstances of the case and hearing Anil Kumar and Satbir Singh had come to the conclusion that the fight took place between those two accused and the Sarpanch Shamsher Singh in connection with polling of votes and that the incident pursuant to which the fight took place was over and the accused persons belonged to different villages and there is no likelihood of breach of the peace and therefore there is no necessity to take any further action against them and he accordingly discharged them. Ex.P-27 is a certified copy of the calender dated 19.5.1982 relation to that criminal case registered by the police. Exs.P-27 and P-28 were tendered by the learned counsel who appeared for the respondent in the trial court. That calender contains allegations to the effect that the Assistant Sub-Inspector of police with the help of Kalyan Singh separated PW 32 from Anil Kumar and Satbir Singh and stopped the fighting, that the complaint of PW 32 was that when he was going to cast his vote two persons riding on a motor-cycle came there and asked him to vote in favour of the respondent, that when he told them that he would cast his vote for the candidate of his own choice they assaulted him with danda and gave him slaps, and that during the investigation the Assistant Sub-Inspector of police found that those two persons were present there for procuring votes for the respondent. It was not disputed by Mr. Rao in this Court that though the complaint on the basis of which FIR No. 104 of 1982 had been registered may not be admissible in evidence in the absence of any foundation for letting in secondary evidence FIR No. 104 of 1982 registered by PW 9 would be admissible in evidence. It shows that on the complaint to the effect that Anil Kumar and Satbir Singh were abusing and beating PW 32 and they were separated from PW 32 by and Assistant Sub-Inspector of police and others a case under sections 107 and 151 of the Code of Criminal Procedure was registered against them and a jeep bearing number DED-3203 was also taken into custody by the police on 19.5.1982, and it is admissible in evidence. The FIR corroborates the evidence of PW 32 and of some of the other witnesses referred to above who have deposed about this incident.

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On the other hand, RW 11 a lecturer in a Higher Secondary School at Rewari who was a polling office at Burthal Jat polling station during the election with which we are concerned has stated in his evidence that no untoward incident of any type took place and that the respondent did not visit that polling station on that day. In view of the documentary evidence and the other oral evidence referred to above which show that on incident did take place outside Burthal Jat polling station and that a jeep containing some lathis as also Anil Kumar and & Satbir Singh were taken into custody and those two persons were prosecuted in a case registered against them under section 107 and 151 of the Code of Criminal Procedure it is not possible to accept the evidence of RW 11 that no incident took place and that the respondent did not go to Burthal Jat polling station at all on 19.5.1982. It must also be noted that KW 11 has admitted in his cross-examination that he could not have known that happened outside the polling station because he was inside. RW 12 who cast his vote in Burthal Jat polling station at 8 a.m. claims to have remained at the polling station till about 1.30 or 2 p.m. and he has stated that neither the respondent nor anyone on his behalf came to the polling station and there was no quarrel inside or near the polling station so long as he remained there. But in his examination-in-chief itself he has admitted that PW 32 was standing about 80 kadams away from the polling station with some people and he heard some altercation between them and that while the altercation was going on some police personnel arrived at the spot and removed two persons who were not known to him. He has further stated in his cross- examination that there was a jeep a, some distance away from where the Sarpanch (PW 32) and the other persons had altercation. He has no doubt denied the suggestion that 10 or 15 other persons were with those two unknown persons and they were armed with sticks, that the respondent came there and left those 15 or 20 persons along with those two unknown persons and that those two unknown persons threatened many people as a result of which they could not cast their votes. RW 13 who went to Burthal Jat polling station at about 10.45 a.m. for casting his vote and cast his vote at that time claims to have stayed there along with some villagers until about 4 p.m. Though he has stated in a portion of his examination-in-chief that no incident took place with in or outside the polling station 80 long as he remained where he had admitted in his examination-in-chief itself that he saw PW 32 having a dispute with two unknown persons about 120 kadams away as also a jeep parked 80 kadams away from the polling station and that he heard people saying that the Superintend of Police removed these two unknown persons. No doubt, he has denied that Anil Kumar and Satbir Singh were threatening the electors in the village and that he has given false evidence on account of pressure from the respondent. RW 14 who cast his vote at Burthal Jat polling station at 7.30 a.m. claims to have thereafter set under a tree by the road-side about half a furlong away from the polling station. He has stated that he did not see the respondent passing by that road in the direction of Burthal Jat village. His evidence is not helpful to either of the parties as he has merely stated that he had not seen the respondent passing by that road in the direction of Burthal Jat village. It is not possible that he would have closely looked into each and every vehicle which passed by that road to notice the respondent who appears to have been moving on that day by his car. RW 22 has stated that he did not go to Burthal Jat village or send anyone of his workers to that village on 19.5.1982 but he remained in his house throughout after he returned from kalaka on that day. It is not possible to accept his evidence that he had not sent any of his workers to Burthal Jat village on the date of poll as it is unlikely that the candidate contesting in the election would not have sent any of his workers to that polling station. It is seen from the aforesaid tape-recorded conversation between PW 7 and RW 22 in the office of PW 10 at about 7 or 7.30 p.m. On 19.5.1982 that the respondent expressed his anxiety to get his relatives Anil Kumar and Satbir Singh who had been arrested on that day by the police released and that his evidence that Anil Kumar and Satbir Singh were not his relatives at all is totally unreliable for reasons mentioned above in the discussion of the evidence relating to the incident at Kalaka polling station. The evidence of R.W. 22 as a whole is unreliable for the reasons already mentioned above.

Thus, this     being the posit on and the real state of affairs     at the spot, in a case like the    present     one involving high    stakes and serious handicaps, we should have expected the conduct of the senior officers to have been completely above board.

Another reason which throws a considerable doubt on the testimony of the witnesses of the appellants is that P.W. 7 himself     deposed that     he did not receive    any written complaint from    the polling officer or the Presiding Officer or from     any other person at the time     when he visited the Kalaka polling    booth. The appellants tried to bring on file certain complaints made to P.W. 7 by Suraj Bhan and others but as    the original complaint had not been filed     the complaint produced by the appellants apart     from being clearly inadmissible cannot be     relied on particularly in face of the clear admission of the Deputy Commissioner (P.W. 7) that     he did     not receive any written complaint from the officers concerned.

Another intrinsic    circumstance which demolishes     the case of the appellants about the presence of a mob headed by Satbir Singh and Anil     Kumar    (said to be relatives of respondent) is    that P.W. 10 (A.S.I.)    who was accompanying the D.C. said that he received the information that one of the candidates, viz., Col. Ram Singh, alongwith some persons had reached Kalaka polling booth and started intimidating the polling staff and the public. Here this witness is sadly contradicted by     the statement    of the    Deputy    Commissioner that the wireless message received by him was not in respect of Col. Ram Singh and his men but the message which the D.C. actually received was that the disturbance was created by one Ajit Singh at the instance of the Congress     (I) candidate. It is, therefore, impossible to accept the case of the    appellants that the respondent and his companions on the one     hand and Ajit Singh with a posse of his own men on the other had reached the Kalaka polling booth at almost the same time. Indeed, if    this had been so there should have been a    huge riot and a pitched battle between the     two parties but no witness     says so. The evidence merely shows that Col. Ram Singh had reached the place just after Anil Kumar and Satbir Singh     alongwith their men left and after the Presiding Officer had set the matters right. me A.S.I. (P.W.10) also says that 3-4 persons had made a complaint in writing to him but he had not seen those reports on the date when they were made to him but it must be on the file. The witness was shown the    file of complaints and he admits thus:-

"I have seen the file of complaints which has been shown to me now. That complaint is not in this complaint file."

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What happened to the complaint received by the witness (P.W. 10) is not known or can be anybody's guess-perhaps the same vanished into thin air or may be was non-existent. The matter does not rest here but there     is one more inherent circumstance which completely falsifies the case of the appellants.     The Presiding Officer was shown Ex. P-5 and he stated that he had not mentioned anything     in the said document about intimidation of the voters and other persons. He (P.W. 8) categorically states thus :-

I have seen Ex. P-5. Column     No. 20     (a) is to furnish information about "Intimidation of voters and other persons . I have not mentioned anything- in this column but have crossed it."

Indeed, if     there was any such intimidation, being the Presiding Officer he would not have    crossed the column regarding the same. He admits that he had served in the Ahir High school which appears to have been patronized by Rao Birendra Singh     and the possibility     that this witness concealed the truth (as appears from his evidence) and made a statement regarding intimidation to oblige    Rao Birendra Singh cannot be ruled out. This is because he merely denies knowledge that    the Ahir School belonged to Rao Birendra Singh but he does not say affirmatively that Rao Birendra Singh had absolutely no connection with the said School. . Coming now to the rest of the evidence of R.W. 1, he says that after the departure of Ajit Singh, Col. Ram Singh came to the    Kalaka polling booth and he was alone at that time. The respondent    in the presence of R.W. 1 told the Presiding Officer that he should     not be     partial to any party     and complained to him about the beating up of his polling agent. Hari Singh (P.W. 8), the Presiding Officer    assured     the respondent that     he would not permit anything     further to happen. Thereafter, a number of people came there and stoned the polling booth and    despite the protests of the witness and the     Presiding Officer they tried    to snatch the ballot box which was, however, protected by the Presiding Officer. In the meantime, the police party arrived and the people who had gathered there sped away. Much was made by the counsel for the appellants regarding omission of the witness to make any report to the police. But     not much turns upon    this because the witness clearly admits that as the Presiding Officer was in charge of the whole show, he had reported the matter to him who had assured him that he would set things right. A number of

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questions were put to him which are of not much significance because the answer of    the witness was that whatever he had to say    he had    told his immediate superior, the Presiding Officer. It is obvious that K.W. 1 was neither a police officer nor a person holding any important job but was only a teacher in a school. Perhaps he thought that it was enough if he informed his superior (Presiding Officer) who would do the needful. The witness also admits    that he had told the Presiding Officer about the visit of    Ajit Singh and     his companions and    the trouble created by them but he was told by the    Presiding Officer that he had recorded the same in the Diary; though in the presence of the witness he did not write any report nor did he handover any report to     the police in his presence. The witness then goes on to state that after a few days of the elections, the     police     had obtained an affidavit from his but no attempt was made by the appellants    to get that affidavit summoned, produced and exhibited in the case    and in the absence of that the court is entitled to presume     that whatever    the witness may have said to     the Presiding    Officer was contained in affidavit also.

R.W. 2, Deen Dayal, who was a member of the polling staff, fully corroborates the    evidence of R.W. 1 regarding the arrival of Ajit Singh armed with pistol and accompanied by a number of persons. He further corroborates that some of the companions    of Ajit     Singh removed    the polling agent of Col. Ram Singh and then asked     the witness and others to handover the ballot papers but as the witness resisted he was beaten up by Ajit Singh and    others    but on     the intervention of     the Presiding    Officer the matter rested there. Thereafter, Col. Ram Singh came who was also assured by the    Presiding Officer that needful     would    be done. A capital was made by the appellants before the court below as also here regarding the veracity of this witness because he did not     make any report to the D.C. Or the S.D.O. about his being beaten up. As already mentioned, the    witness     was merely a teacher and he appears to have been satisfied by the assurance given to     him by     the Presiding    Officer that necessary action would be taken. He further states that the D.C. Only talked to the Presiding Officer and not to any other member of the polling staff. This shows that     the evidence of this witness is true.

The next witness on the point is RW 3 (Mohinder Singh) who was     a police constable deputed to the spot to maintain law and     order. The sequence of events that happened at the polling booth and which have been deposed to by the witness may be summarised thus:

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(1) while    the polling was going    on, between 7.30 and 8.00 a.m., Ajit Singh arrived with his companions and tried to create all sorts of trouble.

(2) After    the departure of Ajit Singh, Col. Ram Singh came alone and was assured by the Presiding Officer that he would not R allow any further trouble to take place. (3) After Col. Ram Singh had left the place a number of people from the village came and wanted to poll forcibly, and 2-3     persons came out of the polling booth with a ballot box.

(4) He (RW 3) snatched the ballot box from the people and returned the same to Dhani Ram (RW 4).

The witness states that after some time the S.D.O. came there and after having     a talk     with the Polling Officer he went away. After about     half-an-hour or 45 minutes of the departure of the S.D.O., the     D.C. arrived    and on     his intervention the polling again started at about 12 mid-day. The witness vehemently denied that     his statement     was recorded by the D.C. in a tape-recorder and said that the voice recorded in the tape-recorder (which was played to him in court) was not his. He even goes to the extent of saying that he     did not see any tape-recorder with the D.C. nor did he have any talk with him.

The following important points may be noted from his testimony -

1) The sequences    of events narrated by him gives sufficient strength to the case of the respondent. 2) his positive evidence that the voice in the cassette was not his.

The witness was     afterall a police constable (a government official) and would     not have the course make a false statement     before the D.C. Moreover, evey the D.C. in his statement has frankly admitted that he was not in a position to identify the voice of this witness or for that matter of others at the time of his deposition. Thus, in the eye of    law, there is no legal evidence at all to prove that the voice Recorded in.     the tape-recorder was the voice of this particular witness.

The next witness is RW 4 (Dhani Ram) who was also one of the    members of tile polling staff and a teacher    in a Government

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Primary School. He fully corroborates the story given by RWs 1 and 3 and also gives the sequence of events referred to above while dealing with the evidence of RW 3. His evidence does not appear to be of much consequence. At any rate the learned High Court has     fully discussed his evidence and we agree with the conclusions arrived at by the High Court in this respect.

RW 5 appears to be a voter of the Kalaka polling booth. He has    been examined to prove the fact that when Ajit Singh and his     party came to the booth, one     Tula Ram who was a polling agent of Col. Ram Singh and real brother of RW 5, was beaten up by Ajit Singh and his party and when he tried to rescue him he was also beaten up and their clothes were torn and it was with great difficulty that Mohinder Singh (RW 3)    who was on duty rescued him and his brother from the clutches of Ajit Singh and his party. He further states that he, alongwith his brother Tula Ram, went to Rewari to meet Col. Ram Singh and narrated the whole incident to him. In cross-examination, the    witness says that he and his brother had received fists and slaps as a result of which they bled because of injuries on their bodies. He further says that as there was no visible mark of     injury     they did not     get themselves medically examined.     He is     an unsophisticated villager and once having reported the matter to Col. Ram Singh he did not think it necessary to file any complaint with the police.

RW 6 (Suresh) was     also a     voter waiting in a queue to cast his vote when at about 8.30 a.m. AJit Singh aimed with a revolver, appeared on the scene and entered the booth. He heard hue and cry from inside the booth. He corroborates the evidence of RW 5 about the beating up of Tula Ram and Ram Kishan (RW 5). He goes on to state that after about half-an- hour of     the departure of Ajit Singh and his party, Col. Ram Singh came and after spend about 5-6 minutes     inside     the booth he drove away. The witness further says in cross- examination that the    polling     did not start after     the departure of AJit Singh in view of the commotion that took place there. After the     departure of Col. Ram Singh     the S.D.O. and the D.C. also came and ultimately the polling was continued. The    witness finally     says that he did not inform Col. Ram Singh about the incident nor did anybody enquire from him anything about the same. In these circumstances, we do not     think     that    the evidence of this witness is creditworthy.

The other    witnesses examined by the respondent not in respect of the Kalaka polling booth.

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The picture would not be complete unless we give the other version of the story put forward by the appellants who have also examined many witnesses.

PW 8 is the only witness who has identified his voice recorded in the tape    recorder by the D.C. when other witnesses, including the D.C., could not do so. That itself shows that he has leanings towards the appellants. Another important     aspect which     emerges from     the evidence of PW 8 is that, according to him, the total votes polled in the Kalaka polling booth were 573, the break-up of which is as follows:-

between 7.30 to 8.45 a.m.     58

"     12 Noon- 2.00 p.m.     205

"     2.00 p.m.- 4.30 p.m.     109

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372

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This means     that if there was any disturbance it would have taken a very short time    in view     of the calculation given by this witness.     If, however, it is a fact that both parties - one led by Ajit Singh and the other led by respondent - had a sort of a direct confrontation, it would have been extremely difficult for the polling to start only after an interval of an hour    and a    half. Moreover, no explanation has     been given by this witness of the votes polled in between 8.45     to 10.30 a.m. The tally of votes is not consistent    with his evidence and is ar. intrinsic proof of the    fact that his evidence     is not     true. The general impression which we gather after perusing his evidence Is that he     does not appear to be a witness of     truth    and, therefore, we find it    difficult to rely on the evidence of this wiriness. Moreover, we shall have to say something more regarding the credibility of this witness when we deal with the documentary evidence.

PW 10 (Sri Krishan) was     the S.D.O. and Returning Officer tor the Rewari     constituency. According to him, he remained in his office     upto 10.00 a.m. and after that he started touring     the various polling booths. He goes on to say that on 19.5.82 he reached Kalaka at about 11.00-11.30 a.m. on     receipt of a complaint to the effect that Col. Ram Singh, alongwith his companions, had tried to intimidate the polling staff and the voters. When he arrived at the spot he found the polling at a standstill. This actually supports the case of the respondent that the polling went on smoothly from 8.00 a.m. to 11.00 a.m.

and the     trouble must have been started either by Ajit Singh or by    his men. The poll could not have restarted before 1.00 to     1.30 p.m. because, according to the evidence of the D.C., the polling staff had been interrogated and their statements were tape-recorded which would have taken quite a lot of    time. This fact intrinsically knocks the bottom out of the case made out by PW 8 regarding timing of the voting. PW 14 (Puran) is    the next witness who does not appear to be of any importance because it is only a case of oath against oath. Moreover, a perusal of his evidence shows that this witness ran away    after Col. Ram Singh is alleged to have threatened     him. tie then returned and cast his vote at about 3.00 P.M. Not much turns upon to evidence. Rather his evidence shows    that he reached the spot nearabout 3.00 p.m. when peace had been restored and the polling had restarted smoothly.

More or less, to the same effect is the evidence of PW 16 (Ishwar Singh) with the difference that this witness says that he     was assaulted    but then except informing the S.l. about the injury he took no    further     steps.     If he     was actually injured he would have made it a point to report the fact of     his assault to the D.C. Or the S.D.O. Or other officers who had assembled after the    miscreants had    gone away. This obviously he did not do. Lastly he admits that his family was supporting the Congress (I) candidate (Sumitra Bai) and, therefore,    h could not be said to be an independent witness.

PW 17 (Amar Singh) was admittedly a polling agent of Sumitra Bai. The witness says that when the D.C. and S.D.O. came he     made a     complaint to them in writing which was also signed by Suraj Bhan, Mangal Singh, Basti Ram and others. He Further says that he had verbally complained to Deep Chand, the ASI     but he     took no action. He states that the D.C. had however made an enquiry from him but the D.C. does not say anything about    this witness and being     a most interested witness it is difficult for us to rely on this witness when the High Court which had the    opportunity of    watching the demeanour and behavior of this witness Placed no reliance on him.

The evidence of PW 18 is almost in the same terms. Like others, he also seems to made a written report to the police station which has not    been produced and no action seems to have been taken thereon. It is rather strange that a number of witnesses say that    they had made an oral     or written complaint yet no action was taken thereon which shows that the statement of the witness is a purely cooked up story. 430

This closes the evidence    so far    as the     prosecution witnesses are concerned. The learned Judge of the High Court has taken great pains    in very     carefully marshalling     and analysing the evidence and so far as Kalaka polling booth is concerned, the    findings of the High Court may be extracted thus:

"The evidence of the PWs on this point is not corroborated. The ownership of the motor cycles abandoned by the party of the respondent was not traced. The ownership could be established from their Registration Books. No effort was made to connect those with the respondent or his supporters. This shows that the PWs were drawing upon their imagination to make out stories about the detention of the persons and the forcible polling at that polling station by the res pondent .

When the evidence on the file of the case is given a close look it leads to an inference that the petitioners have failed to prove this part of the charge beyond reasonable doubt.

Shri Sri Krishan SDO (Civil) stated that 3/4 persons gave him a complaint at Kalaka about the incident. It was a signed complaint. That complaint is not traceable. It was not found in the complaint file. Nor was it entered in the complaint register. That com plaint could throw light on the incident if at all lt had been produced. The oral evidence has failed to convincingly make out this allegation that the voters were threatened at Kalaka.

From the overall assessment of the petitioners' evidence and the detailed discussion in the previous paragraphs concerning this polling station it has left an impression in my mind that the role assigned to the respondent has not been proved beyond reasonable doubt. Lot of suspicions which are indicated in the previous paragraphs attach to his evidence and it is difficult to say that the inference in favour of the

petitioners' case is irresistible. The evidence of the A petitioners is not of the type, which could persuade me to take a decision in their favour." After going through the evidence very carefully, we find ourselves in complete agreement with the conclusions arrived at by the learned Judge of the High Court so far as Kalaka polling booth is concerned.