judgement:
: Criminal Appeal No. 50 of 1976.
Appeal by Special leave from the Judgment and order dated the 2nd October, 1975 of the Rajasthan High Court in S.B. Criminal Appeal No. 850 of 1971.
V.B. Raju and N.N. Sharma for the Appellant.
Badri Das Sharma for the Respondent The Judgment of the Court was delivered by RANGANATH MISRA J.
This appeal by special leave seeks to assail the conviction of the appellant under section 161 of the Indian Penal Code as also section 5(1) (d) and section 5(2) of the Prevention of Corruption Act, 1947 ( 'Act ' for short), and a consolidated sentence of two years ' rigorous imprisonment.
Appellant 's conviction by the Special Judge has been upheld in appeal by the Rajasthan High Court.
Appellant at the relevant time was a Head Constable attached to the Bhusawar Police Station within the District of Bharatpur.
Prosecution alleged that PW. 2 Ram Swaroop had given first Information Report of two offences but appropriate investigation was not being furnished to the Court.
He had approached Shanker Lal, Head Constable attached to the Police Station and had, on demand, paid him some money by way of bribe to expedite submission of the charge sheet, Shanker Lal got transferred and appellant came in his place.
When contacted, appellant also demanded money.
2 thereupon informed the Anti Corruption Department about the demand and Kastoori Lal, Dy.
Superintendent of Police attached to the Anti Corruption Department at Jaipur agreed to lay a trap.
Details were fixed up and the trap was laid on March 30, 1969.
An amount of Rs. 50 was to be passed on as the bribe.
Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused.
For that purpose 1139 Ram Swaroop, PW. 2, Kastoori Lal, PW. 6, Prabhu Dayal, a literate Constable attached to the Anti Corruption Department, PW. 1, accompanied by two Panch witnesses Girdhari, PW. 3 and Gulji, PW. 4 came to Bhusawar.
Ram Swaroop came to the bus stand adjacent to the Police Station.
Banshi Kumar, the waterman at the bus stand (DW. 1) was requested by PW. 2 to inform the accused at the Police Station that he (Ram Swaroop) had come prepared for the purpose as arranged earlier and accused should came and contact him.
Prosecution further alleged that the accused come pursuant to the request and the money was passed on and the payment of bribe was duly detected.
In due course sanction was obtained and the case came up for trial before the Special Judge.
Prosecution led evidence of 8 witnesses five as indicated above and PW. 5, the Superintendent of Police (Intelligence), Jaipur; PW. 7 Kedar Nath, a literate Constable attached to the Bhusawar Police Station and PW. 8 the Superintendent of Police, Bharatpur, who proved sanction for the prosecution.
Certain documents were also produced to support the charge.
Defence examined four witnesses in support of its stand that the accused had not received any bribe and he was falsely implicated without any basis.
The Special Judge accepted the prosecution case and convicted the appellant in the manner already indicated.
His appeal to the High Court has failed.
Ordinarily the Supreme Court does not enter into re appreciation of evidence in exercise of its jurisdiction under Article 136 of the Constitution (see Ram Parkash Arora vs State of Punjab).
It is also true that in the case of State of Bihar vs Basawan Singh a five Judge Bench of this Court has laid down that if any of the witnesses are accomplices, their evidence is admissible in law but the Judge should indicate in his judgment that he had the rule of caution in mind namely, the danger of convicting the accused on the uncorroborated testimony of an accomplice and give reasons for considering it unnecessary to require corroboration; if, however, the witnesses are not accomplices but are merely partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested, in the same way as any other interested evidence is tested, and in a proper case, the Court may look for independent corroboration before convicting the accused person.
There are certain features in this case which appear to have been overlooked both by the trial Court as also the High Court.
The 1140 two panch witnesses have not only turned hostile, but have disclosed fact which support the defence version of the incident.
PW. 2, the decoy witness has stated facts which probabilise the defence stand.
Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version.
The place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct a feature which the two Courts have overlooked.
We are of the opinion that this is a case where the evidence has to be looked into with a view to finding out whether the prosecution case can at all be accepted.
The restriction on appreciation of evidence of an appeal by special leave is a self imposed one and is not a jurisdictional bar.
While we reiterate that ordinarily this Court would refrain from reexamining the evidence, in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction.
Prosecution has examined 8 witnesses in all.
PW. 5, as already noted, is the Superintendent of Police (Intelligence) at Jaipur who is not a material witness at all.
Similarly, PW.8 being the Superintendent of Police of Bharatpur, is connected with sanction for prosecution and is not material for any other purpose.
This leaves six witnesses in the field.
Of them, PWs.
1 and 6 are of the Anti Corruption Department, PW. 1 being a literate Constable attached to that establishment and PW. 6 being the Dy.
Superintendent of Police under whose active supervision the trap was laid.
PW. 2 is the decoy witness himself on whose report the trap was laid.
3 and 4 are the Panch witnesses and PW. 7 is a literate Constable attached to the Police Station.
PW. 2 is a supplier of water at the bus stand like DW. 1.
From his own evidence it appears that he has been involved in laying of traps.
In his cross examination he has admitted: "before this occurrence, I took the Dy.
section P. for arresting another employee Shankerlal.
The statement A V in exhibit P. 8 was given by me in the presence of the Deputy Sahib.
" He seems to have made two other complaints before the police and those were found to be false and police had already decided to prosecute him under section 182, I.P.C.
It is after that incident that present move had been taken.
PW. 2 has admitted in his cross examination: "Prior to this I took the Deputy Sahib to get Shankerlal caught but Shankerlal could not be caught and the Deputy said that you have harassed me for nothing.
" It is the case of the prosecution that Shankerlal was the Head Constable 1141 attached to the police station and that PW. 2 had negotiated with him.
PW. 3 who is a Panch witness has stated that the Deputy Superintendent of Police had told him that Ram Swaroop was giving illegal gratification to Shankerlal.
PW. 3 was previously employed in the Police Department, and had been discharged.
According to him, the name of the accused was never discussed and even at the time of payment it was Shankerlal who was supposed to receive the bribe.
PW. 3 has said that he is not a literate person and his statement and signature had been extracted from him under pressure.
PW. 4, the other Panch witness has similarly stated that he had been told that Shankerlal was to be bribed and he made no statement with reference to the accused.
In view of this evidence it becomes doubtful whether the Panch witnesses had really anything to do with the offer of bribe to the present accused.
Since PW. 2 admitted the position that the Deputy Superintendent of Police had been taken previously in respect of a bribe to Shankerlal and the two Panch witnesses have referred to that incident, it appears logical to infer that these two witnesses were really referring to the other incident.
The defence version seems to be that the trap had been arranged with reference to Shankerlal.
Ram Swaroop on reaching the bus stand requested DW. 1 to ask Shankerlal to come but since Shankerlal was absent from the Police Station, the accused who was the senior most of the lot then available within the police station came out.
This part of the defence story has been supported by PW. 7 Kedar Nath, a Constable attached to the Police Station.
He in his cross examination has stated: "Banshi Kumar said that Shankerlal Head Constable is being called at the stand.
There I, Babu Ram, Constable and Khilli Ram (accused) were present.
We said, 'Khilli Ram, you being the Head may go '.
Accordingly he went.
" To that effect is the evidence of DW.
I, the person whose services Ram Swaroop had admittedly taken to call the accused from the police station.
He stated: "Shankerlal was sent for from the police station at 6 p.m. 2 years 20 days ago.
Then one more person was with him.
I went to the Police station Bhusawar.
Shankerlal was not found there.
The two constables and the accused present in the Court were there.
On the advice of the police constables the accused accompanied me to the bus stand.
" The evidence of PW. 7 and DW. 1 thus clearly support the position we have indicated above.
It is quite probable, therefore, that PW. 2 had negotiated with Shankerlal only and so far as the accused is concerned there was no negotiation and he had come out to the bus stand after being told by DW. 1 in the manner and circumstances indicated by PW. 7 and DW. 1.
If that be so, 1142 implicating the accused for the offence of receiving bribe would be without any basis.
PW. 2 stated in his evidence that the appellant had demanded a sum of Rs. 100.
When this was pointed out to him in cross examination he stated that the accused demanded Rs. 100 from him for taking out the application and this was settled between to be paid to the accused.
This part of the story runs counter to the deposition of PW. 6 who stated: "Ram Swaroop came to my office on 30.3.69 and said that Shankerlal has been transferred and in his place Khilli Ram, Head Constable has came and the latter has settled with me to accept bribe of Rs. 50.
" The discrepancy is indeed a material one in the facts of the case.
The defence of the appellant has all throughout been that he never received any bribe.
PW. 1 in his evidence in chief has stated that the Deputy Superintendent of Police demanded the bribe amount to be taken out and the accused stated that he had not received the amount.
To the same effect is the evidence of PW. 2.
This evidence of PWs.
1 and 2 makes it clear that the first reaction of the accused when accosted was a denial of receipt of any bribe.
That has reiterated the same in his examination under section 342, Cr. P. C.
According to the defence version of the matter there was really no passing of any money.
PW. 1, the Constable accompanying the Dy.
Superintendent of Police, according to the prosecution, searched the person of the accused and found the five currency notes.
There is no acceptable evidence that the Constable had given search of his person before he started searching the person of the accused.
PW. 6, the Dy.
Superintendent of Police was at a distance.
He had not seen the actual passing of the money.
Once PWs.
3 and 4 the Panch witnesses did not support the prosecution case, the only evidence for the passing of the money has to rest is of PWs.
1 and 2.
Both of them were vitally interested in the fate of the prosecution and would, therefore, be disposed to support the prosecution case.
We have already indicated that PW. 2 was anxious to satisfy the police as he was about to face the prosecution under section 182, I.P.C. for having made false allegation in two cases.
The Deputy Superintendent of Police has stated that he had taken PW. 2 to task for having brought him once to Bhusawar on the allegation that Shankerlal was to receive the bribe and that had failed.
In these circumstances it is quite likely that these two witnesses would go out of their way to support the prosecution version.
1143 If Shankerlal was the person with whom PW. 2 had negotiated in the matter of taking of the bribe, it would indeed be difficult to accept, the position that the accused readily agreed to receive the amount when offered.
The accused was, according to the prosecution evidence, in full uniform.
He had been called up to the bus stand which is a public place.
There is evidence to show that there were many people moving around and the area was crowded.
There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing.
In such a surrounding a police man in uniform would ordinarily not accept a bribe.
The police station was not far away and if the accused wanted actually to receive the bribe he would try to chose a better environment for it than the one where the bribe is said to have been given.
Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have.
There is also evidence that the money had not really been received by the accused and PW. 1 raised shouts that the bribe had been accepted before the amount was paid.
PW. 3 has narrated this part of the story thus.
"There the Deputy Sahib and we all stood at on place and Ram Swaroop (PW. 2) and Prabhu Dayal (PW. 1) went towards the police station.
Both had some talks.
Prabhu Dayal remained this side and Ram Swaroop went inside the police station.
Ram Swaroop returned and looked here and there.
In the meantime Prabhu Dayal constable shouted that the money has been found, come on; come on. " PW. 4 stated that he did not see anybody giving or taking illegal gratification.
DW. 1 has stated: "I told pointing toward Ram Swaroop and his companions that they are summoning.
Thereupon the companion of Ram Swaroop (refereeing to Prabhu Dayal) shouted near the 'Imli ' tree that 'caught, caught '.
He took out from the pocket of his pant notes like and putting them in his hand shouted, 'caught, caught '.
" DW. 3 the hotelier has stated: "I and the Inspector went together, then the notes were in the hand of a Constable." He has further said that the Constable was shouting that the amount had been recovered from Khilli Ram.
DW. 4, an independent witness 1144 described this part of the story thus: "At the same time, Banshi waterman and Killi Ram accused present in the Court came from the side of Police Station.
The man standing near Ram Swaroop (obviously Prabhu Dayal), shouted: 'caught, caught '.
He took out the currency notes of Rs. 50 from his (witness ') pocket and raised this alarm." In cross examination this witness stated that the person who raised the cry said that the notes have been recovered from Khilli Ram but Khilli Ram was saying that he did not take the notes.
Two other aspects are relevant to be indicated here.
According to PW. 1, Kastoori Lal, the Deputy Superintendent of Police ordered him to take the search of the accused whereupon he proceeded to do the needful.
PW. 2, however, stated that it was the Dy.
Superintendent of Police who recovered the notes from the accused.
PW. 6 has, however, indicated that under his orders search was conducted by PW. 1.
There is again material discrepancy as to from where the amount was recovered.
PW. 2 has stated that the accused kept the notes of Rs. 50 given by him in the left side pocket of his shirt.
PW. 6 has stated: "When Prabhu Dayal conducted the search of the accused, Ext.
P 1, 2, 3, 4 and 5 notes of the denomination of Rs. 10 each were found out from the right side pocket of the shirt of the accused." Ext.
P 1 is the recovery memo purported to have been prepared att he spot.
It indicates: "Then the settled five currency notes of the denomination of Rs. 10 each were recovered from the right hand pocket of the worn shirt of khaki uniform.
" There is thus a discrepancy as to the place from where recovery was made.
It was pointed out by this Court in Raghbir Singh vs State of Punjab: "Where a trap is laid for a public servant, it is desirable that the marked currency notes which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometimes of dubious character for the purpose of deciding the fate of the public servant." Ordinarily in cases of this type the powder treatment is made.
There is no material at all on the record to explain why such a 1145 process was not followed in the instant case even though detection is alleged to have been handled by experienced people of the Anti Corruption Department.
PW. 6 was a very senior officer and in fact by the time the trial took place he had retired from service.
It is difficult for us to accept the position that he was not aware of the powder treatment.
It has been in vogue for well over three decades now.
If such powder treatment had been made, the passing of the bribe would indeed not have been difficult to be proved.
We are prepared to agree with counsel to the State of Rajasthan that ordinarily a case of type is difficult to prove and the law is settled that even the uncorroborated testimony of trap witnesses can be acted upon as indicated by this Court in the case of Prakash Chand vs State (Delhi Administration), and Kishan Chand Mangal vs State of Rajasthan, but in the present case the evidence of the panchas is not available to support the prosecution case.
There is discrepancy in many material aspects.
The prosecution story is opposed to ordinary human conduct.
The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version.
Without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to the rejected.
An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable.
In these circumstances we are of the view that sufficient material has been brought out to merit interference in this appeal.
We allow the appeal, set aside the conviction of the appellant and acquit him.
He is discharged form his bail bond.
N.V.K. Appeal allowed.

summary:
The prosecution alleged that PW 2 had given a First Information Report of two offences but appropriate investigation was not being done and charge sheet was not being furnished to the Court.
When PW. 2 contacted the Appellant the Head Constable of the Police Station he demanded money.
2 thereupon informed the Anti Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap.
Details were fixed and the trap was laid.
An amount of Rs. 50 was passed on as the bribe.
Five currency notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused.
The prosecution further alleged that the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected.
The Special Judge accepted the prosecution case, convicted the Appellant under section 161 of the Indian Penal Code as also section 5(1)(d) and section 5(2) of the Prevention of Corruption Act, 1947 and imposed a consolidated sentence of two years ' rigorous imprisonment.
The conviction and sentence were upheld in appeal by the High Court.
Allowing the Appeal, to this Court, ^ HELD: 1.
The restriction on appreciation of evidence in an appeal by special leave is a self imposed one and is not a jurisdictional bar.
Whileordnai 1137 rily this Court would refrain from re examining the evidence in a case where serious injustice would be done if the evidence is not looked into it would not be proper for the Court to shun attention by following the self imposed restriction.
[1140C] Ram Prakash Arora vs State of Punjab, [1972] Crl.
L. J. 1293 and State of Bihar vs Basawan Singh ; ; referred to.
In the instant case, certain important features have been overlooked both by the trial Court as also by the High Court.
The two panch witnesses have not only turned hostile, but have disclosed facts which support the defence version of the incident.
PW. 2, the decoy witness has stated facts which probabilise the defence stand.
Even the literate Constable PW. 7 who has not been declared hostile has supported the defence version.
The Place and the manner in which the bribe is said to have been offered and received make the prosecution story totally opposed to ordinary human conduct.
[1139 H; 1140 A B] 2.
Sufficient material has been brought out to merit interference.
The evidence of the panchas is not available to support the prosecution case.
There is discrepancy in many material aspects.
The prosecution story is opposed to ordinary human conduct.
The discrepancies go to the root of the matter and if properly noticed would lead any court to discard the prosecution version.
Without powder treatment, for the absence of which no explanation has been advanced the prosecution story becomes liable to be rejected.
An overall assessment of the matter indicates that the story advanced by the prosecution is not true and the defence version seems to be more probable.
The conviction of the appellant is therefore set aside and he is acquitted.
He is discharged from his bail bond.
[1145 C E] Prakash Chand vs State (Delhi Administration), ; and Kishan Chand Mangal vs State of Rajasthan ; ; referred to.
The accused was, according to the prosecution evidence, in full uniform.
He had been called up to the bus stand which is a public place.
There is evidence to show that there were many people moving around and the area was crowded.
There is also evidence that the place where PW. 2 met the accused with the money was close to a hotel where people were standing.
In such a surrounding a police man in uniform would ordinarily not accept a bribe.
The police station was not far away and if the accused wanted actually to receive the bribe he would try to choose a better environment for it than the one where the bribe is said to have been given.
Human compunction would not permit a man in the position of the accused to behave in the manner prosecution has pictured him to have.
There is also evidence that the money had not really been received by the accused and PW I raised shouts that the bribe had been accepted before the amount was paid.
PW. 3 has also stated that he did not see anybody giving or taking illegal gratification.
[1143 B D] 4.
There is no material at all on the record to explain why the powder treatment process was not followed even though the detection is alleged to have been handled by experienced people of the Anti Corruption Department.
It is difficult to accept the position that PW. 6 was not aware of the powder treat 1138 ment.
It has been in vogue for well over three decades.
If such powder treat ment had been made the passing of the bribe would indeed not have been difficult to be proved.
[1145 A B] Raghbir Singh vs State of Punjab , referred to.


judgement:
Civil Appeal No. 893 of 1980.
From the Judgment and Order dated the 10th April, 1980 of the Patna High Court in Election Petition No. 20 of 1977.
R.K. Garg and V.J. Francis for the Appellant.
L.R. Singh and A. Sharan for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
The election appeal is directed against a judgment dated April 10, 1980 of the Patna High Court setting aside the appellant mainly on the ground that he had been found guilty of indulging in corrupt practice in the election held on 10.6.77 to the Bihar Legislative Assembly from '241 Goh Assembly constituency '.
The result was announced on 16.6.77 in which Ram Sharan Yadav (appellant), a candidate sponsored by the Communist Party of India, was declared elected after polling 28,783 votes as against 16,458 votes polled by Thakur Muneshwar Nath Singh (the first respondent herein).
An election petition was filed by the respondent in the High Court for setting aside the election of the appellant on the ground that he had indulged in corrupt practices as envisaged in section 123 (2) of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act ').
The plea of the respondent found with the High Court which set aside the election of the appellant.
Hence, this appeal to this Court.
Serveral decisions of this Court have laid down various tests 1092 to determine a corrupt practice and the standard of proof required to establish such corrupt practices and it is not necessary for us to repeat the dictum laid down by this Court and the approach to be made in detail because the matter is no longer res integra and is concluded by a large number of authorities.
To quote a few recent ones: Daulat Ram Chauhan vs Anand Sharma,(1) Manmohan Kalia vs Yash & Ors.
,(2) A. Younus Kunju vs R.S. Unni and Ors.(3) as also an earlier decision of this Court in Samant N. Balakrishna etc.
vs George Fernandez and Ors.
etc.(4) The sum and substance of these decisions is that a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities.
As the charge of a corrupt practice is in the nature of criminal charge, it is for the party who sets up the plea of 'undue influence ' to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case.
This is more so because once it is proved to the satisfaction of a court that a candidate has been guilty of 'undue influence ' than he is likely to be disqualified for a period of six years or such other period as the authority concerned under section 8A of the Act may think fit.
Therefore, as the charge, if proved, entails a very heavy penalty in the form of disqualification, this Court has held that a very cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate.
Another well settled principle is that before the allegation of 'undue influence ' can be proved, it must be shown that 'undue influence ' proceeds either from the candidate himself or through his agent or by any other person either with his consent or with the consent of his election agent so as to prevent or cloud the very exercise of any electoral right.
We have heard counsel for the parties at great length and have also gone through the very well considered judgment of the High Court which has dwelt on various aspects of the matter and has held that the charge levelled by the respondent has been fully proved.
Normally, this Court in appeal does not interfere on a finding of 1093 this type unless there are prima facie good grounds to show that the High Court has gravely erred, resulting in serious prejudice to the returned candidate.
The facts of the case lie within a very narrow compass and have been fully narrated in the judgment of the High Court and it is not necessary for us to repeat the same all over again.
Even so, we would like to point out just a few clinching facts which fully fortify the conclusions of the High Court.
The main allegation against the appellant is that he had through his agents, supporters and other people, duly instructed by him, made an attempt to set at naught the electoral process by putting the voters in serious fear as they were threatened, assaulted and even firing was resorted to.
On the finding of the High Court, it is further proved that the acts mentioned above, which undoubtedly amount to 'undue influence ', had been committed not only at the instance but in the presence of the appellant.
There is no ritualistic formula nor a cut and dried test to lay down as to how a charge of undue influence can be proved but if all the circumstances taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either the candidate or his supporters or agents with his consent or with his agents ' consent that should be sufficient to vitiate the election of the returned candidate.
We would, however, like to add a word of caution regarding the nature of approach to be made in cases where allegations of fraud or undue influence are made.
While insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well nigh impossible to prove an allegation on corrupt practice.
Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process.
By and large, the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations: (1) the nature, character, respectability and credibility of the evidence, (2) the surrounding circumstances and the improbabilities appearing in the case, 1094 (3) the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who had the initial advantage of observing the behaviour, character and demeanor of the witnesses appearing before it, and (4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged.
More than this we would not like to say anything at this stage.
We have already pointed out that the learned High Court Judge has very carefully marshalled the evidence and in doing so has faithfully followed the aforesaid principles enunciated by us.
The state of evidence in the present case appears to be both complete and conclusive.
All the witnesses who appeared to proved the allegation of undue influence have in one voice categorically state that the voters were threatened, assaulted and even a bomb was hurled so that they may not cast their votes.
The witnesses have also said that all this was done in the presence of the appellant.
In rebuttal, the appellant has produced himself and two witnesses to support his case that he did not indulge in any corrupt practice.
In other words, his evidence is just a bare denial of the allegations made against him.
The High Court has very thoroughly scanned and weighed the evidence and pointed out that the respondent has produced independent witnesses to show that undue influence was practised with the direct connivance of the appellant.
Without, therefore, going into further details we would just indicate the dominant features of the findings of the High Court with which we entirely agree.
The evidence led by the respondent consists mainly of PWs 1, 27, 32, 35, 39 and 41.
Out of these witnesses, PWs 27, 32, 35, 39 and 41 are independent voters, not belonging to any party.
Their evidence stands corroborated by the FIR lodged in the police station soon after the occurrence as a result of which the police reached the spot of occurrence and found that there was a lot of trouble in the Bhurkunda booth where the voters were pressurised and intimidated.
As a sample, PW 39 (Kamta Prasad Singh), who was a voter in the aforesaid election, has stated that he had gone to cast his vote at about 11.30 a.m. and was standing in the queue alongwith 20 25 other voters.
He further testifies that he saw the respondent at the booth and that he also knew the appellant (Ram Sharan Yadav).
He goes on to narrate that he saw one Ram Prasad Yadav of Ibrahimpur at the booth; the 1095 appellant appeared on the scene and asked Ram Prasad Yadav as to how the polling was going on, to which he was informed that the polling did not appear to be favourable to him.
Thereupon, the appellant ordered Ram Prasad Yadav to capture the booth and after giving this instruction he left the place.
It is clear from the evidence of this independent witness that the threatening and obstructing of the voters was done at the orders of the appellant himself which amply proves the allegation of undue influence.
The witness goes on to state that after the appellant had left the place, about 300 400 men of the appellant surrounded the booth and removed the voters, including the witness, from the queue and therefore they could not cast their votes.
Among the persons who had acted in such a fashion, the witness identified, Babu Chand, Ram Chandra Mahto, Bisheshwar Yadav, Ram Prasad Yadav and Surajdeo Yadav.
In cross examination, the witness clarified that he made an oral complaint to the Presiding Officer that he was not allowed to cast vote and a written complaint was given by the sarpanch of the village.
He could not inform the respondent because he was himself surrounded by the mob.
After perusing his evidence, it seems that the witness (PW 39) has given a very straightforward evidence which bears a ring of truth and does not appear to have been shaken in cross examination on any vital point.
The witness being an independent voter had no axe to grind against the appellant and there is no reason why he should have come forward to depose falsely.
Similar is the evidence of PWs 27, 32 and 35 which has been fully scanned and considered by the High Court.
Another independent witness, PW 41, has also fully corroborated the evidence of other independent witnesses indicated above.
To the same effect is the evidence of PW 62, Ramdeo Singh, who has also stated that he was informed that men of Ram Sharan Yadav had snatched away the ballot papers and torn them and created all sorts of disturbance.
He further stated that Mukhlal Singh, Advocate, who was the polling agent of Ram Sharan Yadav, had led the mob of miscreants at the booth.
Similar is the evidence of other witnesses who have not been in any way broken of shattered in cross examination.
The High Court has rightly pointed out that the FIR clearly gives the details of the incidents soon after they had happened.
As against the overwhelming evidence adduced by the respondent, the evidence of Ram Sharan Yadav (appellant) himself is one of a plea of alibi who stated that he did not go to Bhurkunda polling booth at all and that on the date of poll he was at his village 1096 Haspura in his party 's election office.
It is difficult to believe that being a candidate himself why did he choose to impose a self made restriction not to leave the village and find out what was happening in his constituency.
Such a conduct is both unnatural and improbable and speaks volumes against the defence of the appellant.
It is interesting to note that this plea of alibi, viz., that he did not go to the polling booth was not taken in his written statement.
He seems to have given a very lame explanation for his absence from the polling booths and the High Court has rightly pointed out that this is an afterthought.
In this connection, the High Court observed thus: "I am, therefore, of the opinion, that the aforesaid alibi has been invented by respondent No. 6 for the first time when he came in the witness box with a view to controvert the evidence adduced on behalf of the petitioner that on the date of poll he had gone to Bhurkunda Booth at about 11.30 a.m.
In his cross examination he has pleaded ignorance if his workers had surrounded the petitioner on the date of poll at Bhurkunda Booth, and he has further pleaded ignorance if any criminal case concerning the incident at the Bhurkunda Booth was instituted by Shri Ramesh Chandra Raman, the Magistrate in charge of the striking force, or if any weapon like lathi, garasa, etc.
was recovered from the arrested persons at Bhurkunda Booth.
" Having regard to his evidence, the High Court concludes as follows: "In view of the overwhelming evidence adduced on behalf of the petitioner, which I have already discussed above, I am also not prepared to place any reliance on the aforesaid feigned ignorance of respondent No. 6.
" As regards the evidence of Kailash Yadav (RW 12), he has merely stated that when he reached the Bhurkunda booth at 11.30 a.m. he found the poll to be peaceful.
In order to explain away the exact happenings at the said booth he stated that after casting his vote, he left his village at about 3.00 p.m. and remained out for about a month.
After a close scrutiny of the evidence we are fully satisfied that the appellant was undoubtedly present at the Bhurkunda polling 1097 booth at the time when the voters were going to cast their votes and his agents or supporters indulged in acts of assault, hurling of bombs, etc., in his presence and he did not stop them from doing so from which a conclusive inference can be drawn that the acts of assault, arson, etc. were committed with the positive knowledge and consent of the appellant himself or his agents.
As the High Court has very carefully considered the evidence of each witness, it is not necessary for us to tread the some ground all over again.
The final finding arrived at by the High Court may be extrated thus: "Thus I have examined and discussed above the oral and documentary evidence adduced by the parties with regard to 79 Bhurkunda booth, from which it is clear that there is abundance of reliable evidence on the record to prove the petitioner 's case that on the date of poll at about 11.30.
a.m. Respondent No. 6 Ram Sharan Yadav, had arrived at Bhurkunda Booth in his jeep and enquired about the trend of the poll from his man, Ram Prasad Yadav of village Ibrahimpur, who told him that the poll at the booth was poor in his favour and thereupon Respondent No. 6, Ram Sharan Yadav, ordered his men and supporters, who were standing at the polling booth, to capture the booth by caring away the voters and also to surround the both and the petitioner, and, after giving the said order, he left both and, thereafter his workers and supporters surrounded the booth and scared away the voters and prevented them from exercising their right of franchise and also surrounded the petitioner and held him up there, and the same is nowhere shaken by the merger and unbelievable evidence adduced on behalf of Respondent No. 6 in this regard.
Therefore, it is held that respondent No. 6 and his workers, with consent, did commit that corrupt practice of undue influence at Bhurkunda booth by interfering with the free exercise of the electoral rights of the voters to cast their votes according to their choice.
" We might mention here that the High Court has rejected all the allegations regarding other grounds and his confined its attention only to Bhurkunda booth which, if proved, is by itself sufficient to prove that the appellant was guilty of indulging in the corrupt practice of 'undue influence '.
Mr. Garg, appearing for the appellant, submitted that the allegation of attacking or harassing the voters or driving them out 1098 is a make believe story but he has not been able to show as to why the allegation deposed to by the witnesses should be disbelieved particularly when the independent witnesses examined by the respondent have positively proved the presence of the appellant.
After a careful perusal and discussion of the evidence we entirely agree with the conclusions arrived at by the High Court and hold that there is no reason to interfere with the judgment of the High Court so as to take a different view.
In our opinion, it is not a case where two views were possible so that the appellant could be given benefit of doubt.
For the reasons given above, the judgment of the High Court is upheld and the appeal is dismissed but in the circumstances without any order as to costs.
S.R Appeal dismissed.

dataset_name: IN-Abs

summary:
Ram Sharan Yadav, the appellant and a candidate sponsored by the Communist Party of India, was declared elected on 16.6.1977, to the Bihar Legislative Assembly from 241 Goh Assembly constituency, after polling 28,783 votes as against 16,458 votes polled by respondent No. 1 Thakur Muneshwar Nath Singh.
An election petition was filed by the respondent No.1 in the High Court for setting aside the election of the appellant on the ground that he had indulged in corrupt practices as envisaged in sec.
123(2) of the Representation of the People Act, 1951.
It was alleged that the appellant through his agents, supporters and other people, duly instructed by him made an attempt to set at naught the electoral process by putting the voters in serious fear as they were threatened, assaulted and even firing was resorted to.
The High Court found that the said acts which undoubtedly amount to undue influence had been committed not only at the instance but in the presence of the appellant and therefore allowed the petition and set aside the election of the people.
Hence the appeal by Special Leave of the Court.
Dismissing the appeal, the Court ^ HELD: 1 :1.
A charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities.
As the charge of corrupt practice is in the nature of a criminal charge it is for the party who sets up the plea of undue influence to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case.
This is more so because once it is proved to the satisfaction of a Court that a candidate has been guilty of undue influence them he is likely to be disqualified for a period of 6 years or such other period as the authority concerned under section 8A of the Act may think fit.
Therefore, as the charge, if proved, entails a very heavy penalty in the form of disqualification the Supreme Court has held that a very cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate.
[1092C E] 1: 2.
Another well settled principle is that before the allegation 1090 of undue influence can be proved, it must be shown that undue influence proceeds either from the candidate himself or through his agent or by any other person either with his consent or with the consent of his election agent so as to prevent or cloud the very exercise of any electoral right.
[1092F] 1: 3.
Where allegations of fraud or undue influence are made while insisting on standard of strict proof, the Court should not extend or stretch the doctrine to such an extent to make it well nigh impossible to prove an allegation of corrupt practice.
Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process.
[1093F] 1: 4.
By and large, the Court in such cases while appreciating or analyzing the evidence must be guided by the following considerations:[1093G] (1) the nature, character, respectability and credibility of the evidence; [1093H] (2) the surrounding circumstances and the improbabilities appearing in the case; [1093H] (3) the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who had the initial advantage of observing the behavior, character and demeanor of the witnesses appearing before it, and [1094A] (4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged.
[1094] 1:5.
There is no ritualistic formula nor a cut and dried test to lay down as to how a charge of undue influence can be proved but if all the circumstances taken together lead to the irresistible inference that the voters were pressurized, threatened or assaulted at the instance of either the candidate or his supporters or agents with his consent or with his agents consent that should be sufficient to vitiate the election of the returned candidate.
The state of evidence in the present case, is both complete and conclusive.
All the witnesses who appeared to prove the allegation of undue influence have in one voice categorically stated that voters were threatened, assaulted and even a bomb was hurled so that they may not cast their votes.
The witnesses have also said that all this was done in the presence of the appellant.
[1093D E; 1094C D] 1:6.
The plea of alibi, to the effect that the appellant did not go to the polling booth cannot be accepted inasmuch as (a) such a plea was not taken in the written statement and (b) such a self imposed restriction not to leave the village and find out what was happening in his constituency is both unnatural and improbable.
A close scrutiny of the evidence makes it clear that the appellant was undoubtedly present at the Bhurkunda Polling booth at the time when the voters were going to cast their votes and his agents or supporters indulged in acts of assault, hurling of bombs 1091 etc.
in his presence and he did not stop them from doing so from which a conclusive inference can be drawn that the acts of assault, arosen, etc. were committed with the positive knowledge and consent of the party himself or his agents.
Clearly it is not a case where two views were possible so that the appellant could be given the benefit of doubt.
[1096A B, 1097A B, 1098B] Daulat Ram Chauhan vs Anand Sharma , (p. 73 para 18); Manmohan Kalia vs Yash and Ors. ; (p. 502 para 7); A. Younus Kunju vs R. section Unni ond Ors.[1984] 3 S.C C. 346 (p. 349); and Samant N. Balakrishna etc.
vs George Fernandez and Ors. ; (pp.
618 619); followed.
Normally, the Supreme Court in appeal does not interfere on a finding of this type unless there are prima facie good grounds to show that the High Court has gravely erred, resulting in serious prejudice to the returned candidate.
[1092H; 1093A]


judgement:
Civil Appeal No. 3744 of 1984 From the Judgement and order dated the 25th April, 1984 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. C.D.(SB) (T) A.No. 170 of 1980 Order No. 297 B of 1984.
V.N. Deshpande and E.C. Agarwala for the Appellant.
The Judgement of the Court was delivered by 1148 VENKATARAMIAH, J.
This appeal is filed under section 130 E(b) of the against Order No. 297 B/84 dated April 25, 1984 passed by the Customs, Excise and Gold (Control) Tribunal, New Delhi.
The appellant imported two consignments weighing 0.955 m. tonne and 1.071 m. tonnes of stainless steel plates covered by Bill of Entry No. 725/111 dated August 2, 1979 and Bill of Entry No. 520/250 dated July 16, 1979 respectively.
Under section 12 of the the appellant was liable to pay customs duty in accordance with Heading No. 73.15 of the First Schedule to the at the standard rate of 22% ad valorem.
But under the notification dated July 15, 1977 an importer was liable to pay import duty of 40% only on the said goods provided the conditions mentioned therein were satisfied.
In order to avail of the said concessional rate of duty the importer should import the goods for the manufacture of all or any of the articles specified in that notification and should bind himself by the execution of a bond in such form and for such sum as may be specified by the Assistant Collector of Customs to pay on demand in respect of such quantity of imported stainless steel plates as is not proved to the satisfaction of the Assistant Collector of Customs to have been used for such manufacture an amount equal to the difference between the duty leviable on such quantity but for the exemption contained in the notification and that already paid at the time of importation.
It was further provided that the articles so manufactured had to be sold to industrial units for their use and payment for such articles was to be made by the concerned industrial unit by a crossed cheque drawn on the buyer 's own bank account.
Accordingly the appellant executed two bonds which were guaranteed by a branch of the Dena Bank and cleared the goods by paying customs duty at the concessional rate undertaking to comply with the requirements of the notification.
Subsequently on March 10, 1980, the Assistant Collector called upon the appellant to pay full customs duty as the end use certificates in respect of the goods in question had not been filed before the Customs Department.
Then the appellant forwarded the required certificates issued by its Chartered Accountants certifying that the goods had been consumed in the manufacture of the articles specified in the notification such as pharmaceutical machineries (equipment), pressure vessels, jacketed vessels etc.
and the same had been sold to fertilizers and chemical industry and petroleum and oil refinery industry.
But the Assistant Collector of Customs directed the payment of Rs. 24,244/ and Rs. 26,850/ being the deficient duty payable in respect of the two consignments in terms of the bonds stating that in the course of investigation 1149 it was revealed that the appellant had sold some of the manufactured items to a local dealer and not to industrial units for their own use and that some items had been sold to hospitals/nursing homes which were not industrial units.
Aggrieved by the order of the Assistant Collector the appellant filed two appeals before the Collector of Customs (Appeals), Bombay, contesting inter alia the finding that hospitals were not industrial units.
The Appellate Collector rejected the appellants contention that hospitals were industrial units and hold that as far as the supplies effected by the appellant to hospitals and nursing homes were concerned the condition that the manufactured goods should be sold to industrial units had not been fulfilled.
The appeals were rejected to that extent.
The cases were remanded however to the Assistant Collector for fresh decision on another issue with which we are not concerned.
Against the common order passed by the Collector of Customs (Appeals) in the above said two appeals the appellant filed a revision petition under section 131 of the , as it then stood, before the Government of India.
That revision petition was later on transferred to the above said Tribunal.
The appellant also filed another appeal before the Tribunal directly since there were two appeals before the Appellate Collector.
The principle contention urged before the Tribunal was that the Department was wrong in holding the hospitals and nursing homes were not industrial units.
The Tribunal rejected that contention and dismissed the appeals.
This appeal is filed against the order of the Tribunal.
When the above case came up for admission the only ground urged by the learned counsel for the appellant was that the Tribunal was not right in holding that hospitals and nursing homes were not industries and reliance was placed by him on a decision of this Court under the in which it had been held that hospitals, dispensaries and nursing homes were also industries.
As the appellant has relied on a decision of this Court arising under the in support of its case which requires to be distinguished we are passing this order giving our reasons although it is not usual to do so when an appeal is dismissed without notice to the respondents.
The expression 'industry ' has many meanings.
It means 'skill ', 'ingenuity ', 'dexterity ', 'diligence ', 'systematic work or labour ', 'habitual employment in the productive arts ', 'manufacturing establishment ' etc., But while construing a word which occurs in a statute or a statutory instrument in the absence of any definition in 1150 that very document it must be given the same meaning which it receives in ordinary parlance or understood in the sense in which people conversant with the subject matter of the statute or statutory instrument understand it.
It is hazardous to interpret a word in accordance with its definition in another statute or statutory instrument and more so when such statute or statutory instrument is not dealing with any cognate subject.
Craies on Statute Law (6th Edn.) says thus and page 164: "In construing a word in an Act caution is necessary in adopting the meaning ascribed to the word in other Acts.
"It would be a new terror in the construction of Acts of Parliament if we were required to limit a word to an unnatural sense because in some Act which is not incorporated or referred to such an interpretation is given to it for the purposes of that Act alone." Macbeth vs Chislett , 223.
" When the word to be construed is used in a taxing statute or a notification issued thereunder it should be understood in its commercial sense.
It is well known that under the law levying customs duties sometimes exemptions are given from the levy of the whole or a part of customs duty when the goods in question are sold either in the form in which they are received or in a manufactured or semi manufactured state to a manufacturing establishment for purposes of using them in manufacturing finished or semi finished goods in order to lessen the cost of machinery or equipment employed in or raw materials used by such manufacturing establishment.
The object of granting such exemption is to give encouragement to factories or establishments which carry on manufacturing business.
The appellant, however, relies upon the meaning assigned to the word 'industry ' in the in support of its case.
The expression 'industry ' is no doubt given a very wide definition in section 2 (j) of the .
It reads thus: "2 (j) 'industry ' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.
" The above definition is given in the context of the subject matter with which the is concerned.
The pith and substance of that act is to make provision for settlement of 1151 disputes between employers and employees in institutions, establishments, industrial or business houses or factories of various kinds.
It is true that in the Bangalore Water Supply and Sewerage Board, etc.
vs R. Rajappa & Ors.
this Court has hold that hospitals would also come within the definition of the expression 'industry ' given in the which is as wide as the legislature could have possibly made it.
But that definition cannot be used for interpreting the word 'industry ' in a notification granting exemption from customs duty under the .
A perusal of the provisions of the Constitutions shows that the expression 'industry ' does not ordinarily posses such wide meaning.
In Article 19 (6) (ii) the word 'industry ' does not include 'trade ', 'business ' or 'service ' which are specifically referred to therein.
Then we have the expression 'industry ' in Entires 7 and 52 of List I, Entry 24 of List II and Entry 33 of List III of the Seventh Schedule to the Constitution.
The said expression in these entries does not include trade or commerce or distribution of goods which are found else where in the said Lists.
What is of significance is that in List II 'hospitals and dispensaries ' are specifically referred to in Entry 6 and they cannot, therefore, possibly fall under Entry 24 thereof which refers to 'industries '.
As observed by this Court in Ch.
Tika Ramji & Ors.
vs The State of Uttar Pradesh & Ors. 'industry ' in the wide sense of the term would be capable of comprising three different aspects: (1) raw materials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products of the industry.
But raw materials are dealt with by Entry 27 of List II, the process of manufacture or production by Entry 24 of List II except where the industry is a controlled industry when it would fall under Entry 52 of List I and the products of the industry would fall under Entry 27 of List II except where they are products of controlled industry when they would fall under Entry 33 of List III.
An analysis of these provisions shows that 'industry ' ordinarily means the process of manufacture or production.
We have referred to the above provisions of the Constitution only to show how that expression is understood ordinarily.
It may also be relevant to mention here that the new definition given to the word 'industry ' by Parliament in the Industrial Disputes (Amendment) Act, 1982 (46 of 1982) specifically excludes 'hospitals or dispensaries ' from the category of 'industry '.
It shows that the meaning given to the expression 'industry ' in the Industrial 1152 Disputes Act, 1947 cannot be depended upon while construing other statutes or statutory instruments and it should be confined to the .
We are of the view that in the notification under which the exemption is claimed by the petitioner, the word 'industry ' means only the place where the process of manufacture or production of goods is carried on and it cannot in any event include 'hospitals, dispensaries or nursing homes '.
The decision of the Tribunal does not call for any interference.
The appeal is therefore, rejected.

summary:
The appellant imported some stainless steel plates at concessional rate of import duty under a notification which provided : (i) that the importer should import the goods for the manufacture of all or any of the articles specified in that notification; (ii) that the articles so manufactured had to be sold to industrial units for their use; (iii) that in case of violation of any one of the conditions above mentioned, the importer was liable to pay, in respect of such quantity of goods as is not proved to have been utilised as per the notification, an amount equal to the difference between the duty leviable on such quantity but for the exemption contained in the notification and that already paid at the time of importation.
The appellant submitted a certificate that the goods imported by him under the notification had been consumed and/or utilised as per the notification.
But the Assistant Collector of Customs rejected the said certificate and held that the appellant was liable to pay the deficient duty in respect of the goods which had been sold to hospitals/nursing homes since they were not "industrial units" within the meaning of the .
The Collector of Customs (Appeals) confirmed the order in appeal.
The revision petition of the appellant before the Customs, Excise and Gold (Control) Tribunal, also failed.
The appellant contended before this Court that the word 'industrial units ' contained in the notification should be given the same meaning as is assigned to the word 'industry ' in the Industrial Dispute Act, 1947.
Dismissing the appeal, ^ HELD: (1) The expression 'industry ' has many meanings.
It means 'skill ', 'ingenuity ', 'dexterity ', 'diligence ', 'systematic work or labour ', 'habitual employment in the productive arts ', 'manufacturing establishment etc.
While construing a word which occurs in a statute or a statutory instrument in the 1147 absence of any definition in that very document it must be given the same meaning which it receives in ordinary parlance or understood in the sense in which people conversant with the subject matter of the statute or statutory instrument understand it.
It is hazardous to interpret a word in a accordance with its definition in another statute or statutory instrument and more so when such statute or statutory instrument is not dealing with any cognate subject.
[1149 H; 1150 A B] Craies on statute Law [6th Edn.] p. 164 referred to.
(2) 'Industry ' in the wide sense of the term would be capable of comprising three different aspects: (1) raw materials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products of the industry.
An analysis of Entry 24 and 27 of List II, Entry 52 of List I and Entry 33 of List III of the Constitution shows that 'industry ' ordinarily means the process of manufacture or production.
[1151 E F] Sh.
Tika Ramji & Ors.
vs The State of Uttar Pradesh & Ors. ; at p. 420 followed.
(3) It is true that in the Bangalore Water Supply & Sewerage Board, etc.
vs R. Rajappa & Ors.
[1978]3 SCR 207 this Court has held that hospitals would also come within the definition of the expression 'industry ' given in the Industrial Dispute Act, 1947.
But that definition cannot be used for interpreting the word 'industry ' in a notification granting exemption from customs duty under the .
When the word to be construed is used in a taxing statute or a notification issued thereunder it should be understood in its commercial sense.
[1151 B C] (4) The new definition given to the word 'industry ' by Parliament in the Industrial Disputes (Amendment) Act, 1982 (46 of 1982) also specifically excludes 'hospitals or dispensaries ' from the category of 'industry '.
It shows that the meaning given to the expression 'industry ' in the cannot be depended upon while construing other statutes or statutory instruments and it should be confined to the .
Therefore, the word 'industry ' means only the place where the process of manufacture or production of goods is carried on and it cannot in any event include 'hospitals ', dispensaries or nursing homes.
[1151 G H; 1152 A B]