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Allahabad High Court

Vijay Singh vs State Of Uttar Pradesh on 26 May, 2017

Bench: Ajai Lamba, Vijay Laxmi

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R Court No.9 Case :- CRIMINAL APPEAL No. - 1219 of 2003 Appellant :- Vijay Singh Respondent :- State Of Uttar Pradesh Counsel for Appellant :- K.S.Pawar,Ishan Baghel,Meenakshi Singh Parihar,Nagendra Mohan,Pawan Kumar Mishra,Raghvendra Singh,Sajeet Singh,Sudeep Pathak,Vikram Jeet Singh Rathore Counsel for Respondent :- Govt.Advocate,Bireshwar Nath,Kapil Misra,Mridul Rakesh,Rishad Murtaza,S.P.Tewari,Santosh Srivastava Case :- CRIMINAL APPEAL No. - 1397 of 2003 Appellant :- Sanjeev Maheshwari Respondent :- The State Of U.P. Counsel for Appellant :- Atul Verma,Om Prakash Srivastava,Pankaj Kumar Srivastava,Vashudeo Mishra, K.S. Singh Counsel for Respondent :- Govt.Advocate, V. Nath Hon'ble Ajai Lamba,J.

Hon'ble Dr. Vijay Laxmi,J.

(Delivered by Hon'ble Dr. Vijay Laxmi,J.) The challenge in these criminal appeals is to the judgment and order dated 17.07.2003 passed by Additional Sessions Judge, Court No.3, Lucknow convicting accused Vijay Singh A-1 and Sanjeev Maheshwari alias Doctor alias Jeeva A-2 under sections 302/34 & 307/34 IPC. A-1 and A-2 are found guilty of charge under section 302/34 and 307/34 IPC and each one of them is sentenced to life imprisonment under Section 302/34 IPC. Both of them are also found guilty of charge under Section 307/34 IPC and sentenced to rigorous imprisonment for five years.

2. The background facts as highlighted by the prosecution are as follows:

The complaint was lodged by Sudhansu Dutt Diwedi S/o Devdatt Diwedi, R/o 3/141 Senapati Road (Ex. Ka-19) at Police Station-Kotwali Farukabad on 10.02.1997 at 1.45 a.m. stating that he himself and his family members and his uncle Bramhadutt Diwedi, M.L.A of B.J.P. (Ex-Minister) had come to Lohai Road at the house of Shri Hitesh Chandra Agarwal, to join the Tilak ceremony of Lalit, his son of Hitesh Chandra Agarwal on 09.02.1997 at night. His younger cousin Prabhu Dutt Diwedi, his uncle Haridutt Diwedi (chacha), Smt. Kushla Diwedi (aunty) his Mama Vijay Kumar Dubey (Kunnu Mama) were also present there. Brahmadutt Diwedi (in short D-1) came out of the ceremonial house to go back at about 12.00 O'clock. He also followed him alongwith Prabhudutt Diwedi, Vijay Kumar Dubey alias Kunnu Mama and the family members of Hitesh Chandra Agarwal, viz. Anuj, Udit and others. Brahmadutt Diwedi came to his ambassador car parked on the road. All followed him to his car. Brahmadutt Diwedi got seated on the left rear seat of his car, his gunner (in short D-2) and driver also got seated on the front seat of the car. Anuj, brother of Lalit reminded and had gone again inside the house to take Laddoo of Tilak. When he returned with Laddoo in packets (Dibbe) and gave packets to Brahmadutt Diwedi at that time suddenly accused Vijay Singh reached there with revolver in his hand. He approached the window of Brahmadutt Diwedi and fired shots on Brahmadutt Diwedi from close range. His three associates surrounded the car and started indiscriminate firing on which his gunner immediately came out of car and he proceeded towards the window of the driver. Before he could retaliate, shots were fired on him by the accused. Driver Rinku also suffered fire arm injuries. Hue and cry was raised by them on which the murderers fled away making fire in air Vijay Singh A-1 fled away towards Nala Machratta and others three in opposite directions towards chowk waving their weapons in air. They could not be chased due to terror. There was old enmity between Bramha Dutt Diwedi and Vijay Singh on account of which D-1 and D-2 were murdered under planned conspiracy. The three associates were not known to the witnesses but they were identified. He witnessed the incident which was seen by him and Prabhudutt Diwedi, Vijay Kumar Dubey, Manoj, Udit and Lalit. Girish Chand Agarwal alias Ramji Agarwal was also present there. Brahmadutt Diwedi, his gunner and driver were taken to Jain Nursing Home by him alongwith Udit, Lalit and Manoj, Mama and other persons in vehicle. Brahmadutt Diwedi and gunner were declared dead by Dr. Jain PW-4 and the injured Rinku was referred to the Lohia Hospital for his treatment and examination. He was taken to Lohia Hospital by him. The dead bodies of Brahmadutt Diwedi (for short D-1) and B.K. Tiwari (for short D-2) were kept in the Jain Nurshing Home. The three unknown accused were of average height and age, who were seen by the complainant and other witnesses in the light of the electricity and generator and were identified by them. This incident was seen by the complainant and by his brother Prabhudutt Diwedi, Vijay Kumar Dubey, Girish Chandra Agarwal and Sher Singh alias Rinku and others.

3. Ext. Ka-19 is the complaint given by the complainant at the police station. Chik FIR Ex.Ka-26 was prepared and case was registered against Accused-Vijay Singh and three unknown persons against identification with Case Crime No.109 of 1997 under sections 302, 120-B and 307 of IPC. The investigation was conducted by Sri O.P. Sharma, SHO, P.S. Kotwali, District Farukhabad upto 19.02.1997. The inquest reports were prepared. The dead bodies were sent for postmortem and postmortem reports were prepared. The recoveries of the empty cartridges and lead pieces were made by the police and team of Forensic Science Laboratory on 10.02.1997 and 11.02.1997 respectively. The recovery memos are Ext. Ka-74 and Ext. Ka-9.

4. The investigation was transferred to Central Bureau of Investigation (for short 'C.B.I.') vide notification No.823 T/6-11-97-89 M/97 dated 10.02.1997 under Section 6 of Delhi Special Police Establishment Act, 1947 read with consent notification No.228/11/97-A.V.D.-II, dated 19.02.1997 of UP State Government. The Case Crime No.RC 3(s)/1997-SIC -IV-LKO was registered in the C.B.I. On 20.02.1997 and thereafter the investigation was conducted by the CBI.

5. After incident accused Vijay Singh and his associates absconded. Proceedings under Section 82 & 83 Cr.P.C. were initiated against Vijay Singh who was arrested from Delhi on 02.03.1997. The accused Sanjeev Maheshwari A-2 along with Vijay Singh and two associates visited many places and stayed in various hotels and filled up the reservation requisition forms in disguised names to conceal their actual identity. The documents relating to entry register and departure, reservation slips etc. were collected by the CBI. A-2 was arrested by CBI on 22.04.1997 from Himalaya Coffee House, Meerut from whom a pistol/mouser and cartridges were recovered. The investigation was concluded and the chargesheets were submitted by the CBI.

6. Three Sessions Trials were conducted in this case. In Sessions Trial No.22 of 1998, four persons, namely, Vijay Singh A-1, Sanjeev Maheshwari A-2, Smt. Urmila Rajput A-3 and Panch Sheel Rajput A-4, in Sessions Trial No.23 of 1998, Balwinder @ Billoo @ Vakil@ Pandit A-5, and in Sessions Trial No.748 of 1998, Ramesh Thakur @ Sanjay A-6, Shiv Pratap Singh Tomar Advocate @ Cheenu A-7 and Pankaj Mishra A-8 were tried. 7. All the three trials were consolidated by the trial court vide order dated 01.05.1999 where leading case was Sessions Trial No.22 of 1998. 8. The charges were framed against A-1, A-2, A-5 and A-6 under Section 302/34 and Section 307/34 I.P.C. against A-1 to A-8 under Section 120B IPC, against A-8 under Section 212 IPC for harbouring offenders of murder vide charge dated 23.7.2001. The accused pleaded not guilty and claimed trial. 9. All the above mentioned Sessions Trial cases were decided vide impugned judgement dated 17.07.2003. The accused persons A-3, A-5, A-7 and A-8 were acquitted of charges by the Trial Court. The prosecuting agency has not filed any appeal against acquittal. 10. Accused A-6 died during pendency of trial and the case was abated against him vide order dated 04.04.2003. 11. Before delving into the real controversy and various contentions raised by learned counsel for both the parties, we would like to record certain circumstances which are relevant. 12. Offence was committed at about 12 Mid night on the intervening night of 9.2.1997 and 10.2.1997. Purportedly, the F.I.R. was registered at 1.45 a.m. on 10.2.1997, the same night. Charges were framed vide order dated 23.7.2001 i.e. after four years and five months of the incident. 13. As many as 67 witnesses have been examined by the prosecution to bring out its case. The witnesses were examined w.e.f. 16.8.2001 (when the examination of P.W.-1 was commenced) till 29.5.2003 (when the examination of P.W.-67 was concluded). Thus, the evidence was recorded for more than one year and nine months. 14. In reference to the record, it is revealed that examination of P.W.-67 Shri V.P.Arya, Dy.S.P., C.B.I. was started on 18.12.2002, however, was not concluded till 26.3.2003. Order passed by the trial court on 26.3.2003 demonstrates that counsel for the prosecution was absent in the court. The trial court has recorded that on one pretext or the other, prosecution is not completing examination-in-chief of the investigating officer for several months. Adjournment application was filed by the prosecution which was rejected and prosecution evidence was closed. 15. It appears that prosecution filed an application under Section 311 Cr.P.C. for recall of Shri V.P.Arya, Dy.S.P., C.B.I., P.W.-67 for examination which was allowed vide order dated 17.4.2003. It is thereafter that the examination and cross examination of Shri V.P.Arya was concluded on 29.5.2003. 16. Only 67 witnesses have been examined, although 148 witnesses were cited in support of the prosecution case. Sudhansu Dutt Diwedi PW-17, Prabhu Dutt Diwedi PW-18 & Vijay Kumar Diwedi PW-23 have been examined as eye-witnesses. 17. It is required to be noted that the first witness who was present at the place of incident, P.W-3 Shri Udit Agarwal was examined on 20.8.2001 i.e. after more than three years and six months of the incident. 18. The trial Court recorded the conviction and imposed sentences primarily placing reliance on the evidence of PW-17, PW18, both nephews of D-1 and PW23, brother-in-law of D-1, other ocular and medical evidence, the conduct of the accused after incident, the result of handwriting expert report, Forensic Science Laboratory report and TI Parade report of A-2 and circumstantial evidence of the case. The conviction and the consequential sentences are challenged before this Court. The trial was conducted by the Trial Court on day to day basis as per the order of Hon'ble Supreme Court. 19. Shri I.B.Singh, learned Senior Advocate, assisted by Shri Ishan Baghel, Advocate and Shri Sajeet Kumar and Shri Nagendra Mohan have addressed arguments on behalf of appellant A-1. On behalf of appellant A-2, Shri Om Prakash Srivastava, Advocate and Shri K.S. Singh, Advocate have addressed arguments. 20. Shri Jyotindra Mishra, learned Senior Advocate assisted by Shri Kapil Mishra, Advocate and Shri S.P.Tiwari, Advocate has appeared on behalf of the complainant. 21. On behalf of C.B.I., Shri Rishad Murtaza, Advocate has addressed the court.

22. In support of the appeals, learned senior counsel for the appellant A-1 submitted that Vijay Singh appellant was innocent. He was falsely implicated in this case due to political rivalry. The evidence of alleged eye-witnesses PWs 17, 18 & 23 should not have been relied on because they are interested witnesses being related to the deceased D-1 and there are material contradictions in their statement and the FIR and post mortem reports and other evidence available on record. In any event, Section 34 has no application.

23. Learned Counsel for the respondent-State on the other hand supported the judgment of the trial Court.

Interested and Partisan and Related Witnesses

24. It is submitted by Mr. I.B. Singh, learned senior advocate, that the case against Vijay Singh is based on the testimony of 3 witnesses, namely, Sudhanshu Dutt Diwedi PW-17, Prabhu Dutt Diwedi PW-18 and Vijay Kumar Dubey alias Kunnu Mama PW-23. PW-17 and PW-18 are the real nephews of deceased Brahmadutt Diwedi D-1 and PW-23 is the real brother in law (Saala) of D-1 who are interested witnesses.

25. At the outset, it is necessary to mention that the principal witnesses are PW-17, 18 and PW-23 and the trial court has given credence to their evidence. PW-17, the author of the FIR, has testified that he got the FIR of the incident prepared in Lohia Hospital itself and then lodged it at Police Station - Kotwali, Farrukabad. Though there has been roving cross-examination with regard to him seeing the accused persons, nothing has been really elicited to make his testimony impeachable. PW-18 & 23, have also identified the accused person A-1 and supported the testimony of PW-17. That apart, the said witnesses have lent support to the case of the prosecution and corroborated the case in each necessary particulars.

26. The complainant Sudhanshu Dutt Diwedi PW-17 stated that on 09.02.1997 he was invited to the function of Tilak ceremony. At about 9.30 p.m. Brahmadutt Diwedi had reached there by his car. He reached later on. His younger cousin Prabhu Dutt Diwedi, his uncle Haridutt Diwedi (chacha), Smt. Kushla Diwedi (aunty) his Mama Vijay Kumar Dubey (Kunnu Mama) were also present there. Brahmadutt Diwedi came out of the ceremonial house to go back at about 12.00 O'clock. He also followed him alongwith Prabhudutt Diwedi, Vijay Kumar Dubey alias Kunnu Mama and the family members of Hitesh Chand Agarwal, Anuj, Udit and others. Brahmadutt Diwedi came to his ambassador car and got seated on the left rear seat of his car. Anuj had gone again inside the house who brought Laddoos. He gave packets to Brahmadutt Diwedi at that time suddenly accused Vijay Singh reached there with revolver in his hand. He approached the window of Brahmadutt Diwedi and fired shots on Brahmadutt Diwedi. His three associates surrounded the car and started indiscriminate firing on persons inside the car. The gunner came to the side of driver, and before he could retaliate, shots were fired on him by the accused. Driver Rinku also suffered fire arm injuries. Hue and cry was raised on the spot on which Vijay Singh fled away towards the Nala Machratta and the three associates fled away towards Chowk. The three associates were unknown at the time of incident but they were identified by the witnesses. He witnessed the incident which was seen by him and Prabhudutt Diwedi, Vijay Kumar Dubey, Manoj, Udit, Lalit and Girish Chand Agarwal alias Ramji Agarwal. The injured were taken to Jain Nursing Home by him and other family members in vehicle. Brahmadutt Diwedi and gunner were declared dead by Dr. Jain PW-4 and the injured Rinku was referred to Lohia Hospital for his treatment and examination. He was taken to Lohia Hospital by him. To quote the relevant extract:

mlus yM~Mw ds fMCcs f}osnh th dks fn;s] rHkh ;dk;d vfHk;qDr fot; flag vius gkFk esa fjokYoj ysdj dkj esa cSBs f}osnh th ds ikl f[kM+dh ds ikl igqapk vkSj fjokYoj ls czgenRr f}osnh th dks xksyh ekj nhA buds lkFk rhu lkFkh vkSj FksA lHkh us dkj dks ?ksj fy;k vkSj rM+krM+ xksfy;ka pykus yxsA

27. The statement of the complainant is supported by another witness Prabhudutt Diwedi PW-18, real nephew of D-1 who stated that on the intervening night of 09-10/02/1997 his uncle Brahmadutt Diwedi was killed. He had gone to house of Lalit Agarwal to attend Tilak ceremony of Lalit Agarwal on 09.02.1997. He himself, his uncle Haridutt Diwedi, Sudhanshu Dutt Diwedi, Bhaskardutt Diwedi, his aunty Kushla Diwedi, Vijay Kumar Dubey, his Mama also attended this Tilak ceremony. His uncle Brahmadutt Diwedi reached there in his ambassador car alongwith his gunner and driver. After the ceremony, D-1 came out of the house and got seated in his ambassador car for going back to his home. It was about 12.00 O'clock. At that time accused Vijay Singh came from the side of Chowk and he fired shots on his uncle Brahmadutt Diwedi from weapon in his hand. At the same time his three associates also fired shots on Brahmadutt Diwedi who were also standing near the car. Dwivediji suffered fire arm injuries during this incident alongwith his gunner and driver Sher Singh. This incident was seen by Sudhanshu Dutt Diwedi, Vijay Kumar Dubey, Ramji Agarwal, Manoj Agarwal and Udit Agarwal etc. Accused Vijay Singh fled away towards the Nala Machratta and his other three accomplices fled away towards chowk. The name of this witness is mentioned in the FIR. To quote the relevant extract:

mlh le; pkSd dh rjQ ls vfHk;qDr fot; flag ,dne ls ogka vk;sA ogka igqaprs gh mUgksaus esjs pkpk czgenRr f}osnh ds Åij vius gkFk esa fy;s vlygs ls xksfy;ka pyk nhaA mlh le; fot; flag ds rhu vksj lkfFk;ksa us Hkh dkj ds ikl [kM+s gksdj dkj esa cSBs czgenRr f}osnh th dh rjQ xksfy;ka pyk;hA

28. Vijay Kumar Dubey alias Kunnu Mama PW23 is also an eye witness whose name is mentioned in FIR. He is brother in law of Brahmadutt Diwedi who stated that on 09.02.1997 he attended Tilak ceremony of Lalit at his house. He was invited and thus he attended Tilak ceremony. Sudhanshu Dutt Diwedi, Prabhudutt Diwedi, Kushla Diwedi, Bhaskar Dutt Diwedi, Himanshu Dutt Diwedi and others also attended the Tilak ceremony. The incident occurred at about 12.00 O'clock in the intervening night of 9-10/02/1997. Brahmadutt Diwedi came out of the house and got seated in his car on the rear left seat. Gunner and driver also had taken their seats in the front seat of the car. At that time someone came from the house of Ramji Agarwal and reminded to bring Ladoos. He himself went to take Ladoos. He stated that to his remembrance Ladoos were brought by him on the spot and at that juncture Vijay Singh accused reached there and fired shots on Brahmadutt Diwedi from window of his car. The three associates also came there with Vijay Singh. They also fired shots from front, right and left side on the persons sitting in the car. He stated that they were equipped with firearms which were small either pistol or revolver. Due to firing serious injuries were suffered by Brahmadutt Diwedi and his driver and gunner. This incident was also seen by Prabhudutt Diwedi, Sudhanshu Dutt Diwedi, Ramji Agarwal. Vijay Singh fled away towards Nala Machratta and three associates fled away towards Chowk. To quote the relevant extract:

rHkh ,d ne ls fot; flag vk, vkSj dkj dh f[kM+dh ls fjokYoj ls czgenRr th ij Qk;j dj fn;kA fot; flag ds lkFk muds rhu lkFkh vkSj Fks mUgksaus vxy cxy o lkeus ls dkj esa cSBs yksxksa ij Qk;j dj fn;kA

29. As rightly contended by the Learned Counsel for the State, the ocular evidence is corroborated by medical evidence. The intention of the accused A-1 to eliminate the deceased and the injuries sustained by D-1, D-2 and Rinku substantially establishes the coordinated vengeance with which the assault was caused by the appellant A-1 and his associates in order to ensure that the deceased did not survive.

30. From the perusal of the post mortem report and the statement of the doctor it is evident that the firearm injuries on the deceased D-1 were found to be firstly on the left side of neck, chest cavity deep which was charred and secondly on left side of abdomen. These were on vital parts of the body. Third injury was on left forearm near elbow, it was also charred. The death was natural as the bullets had hit him from close range and on vital parts. The attack was made by A-1 from left rear window. According to the statement of Dr. Yogendra Pratap Singh PW-20, the cause of death was the shock and hemorrhage due to gun shot ante-mortem injuries. It stands proved that D-1 had suffered injuries from the gun shots fired within 6 feet and the same caused his near instant death.

31. It has come in evidence that the accused A-1 had harboured vengeance against D-1. There was no reason why the witnesses, who were close relations of the deceased, would falsely embroil the accused persons leaving the real culprits; that there is no reason to discard the testimonies of PWs 17, 18 and 23 singularly on the ground that they are related witnesses, for they have stood embedded in their version and there is no inconsistency to discredit them.

32. By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.

33. In State of A.P. Vs. S. Rayappa and Ors. MANU/SC/1004/2006 the Supreme Court observed as under:

7. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The Trial Court has brushed aside the testimony of P.W.1 and P.W.2 on the ground that they are interested witnesses being relatives of the deceased and that they were not present on the place of occurence.

34. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

35. In Dalip Singh and Ors. v. The State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 Hon'ble Supreme Court of India has laid down as under:

27. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witnesshas cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

36. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 in which Vadivelu Thevar v. State of Madras MANU/SC/0039/1957 : 1957CriLJ1000 was also relied upon.

37. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by the Supreme Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:

We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - Rameshwar v. State of Rajasthan MANU/SC/0036/1951 : 1952CriLJ547 . We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.

38. Again in Masalti and Ors. v. State of U.P. MANU/SC/0074/1964 : [1964]8SCR133 this Court observed: (p. 209-210 para 14):

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

39. To the same effect are the decisions in State of Punjab v. Jagir Singh MANU/SC/0193/1973 : 1973CriLJ1589 ; Lehna v. State of Haryana MANU/SC/0075/2002 : [2002]1SCR377 and Gangadhar Behera and Ors. v. State of Orissa MANU/SC/0875/2002 : 2003CriLJ41 .

40. The above position was also highlighted in Babulal Bhagwan Khandare and Anr. v. State of Maharashtra MANU/SC/1026/2004 : (2005)10SCC404 and in Salim Saheb v. State of M.P. 2007(1) SCC 699.

41. In this regard reference to a passage from Hari Obula Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0128/1980 :(1981) 3 SCC 675 would be fruitful. In the said case, a three-Judge Bench has ruled that it cannot be laid down as an invariable Rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Hon'ble Supreme Court in Kartik Malhar v. State of Bihar MANU/SC/1034/1996 : (1996) 1 SCC 614 has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.

42. In the instant case, the FIR was lodged in the police station promptly. There is no consultation with any other person in lodging FIR. The accused Vijay Singh was named in the FIR. The evidence of the complainant Sudhanshu Dutt Diwedi PW-17 has been fully supported by Prabhu Dutt Diwedi PW-18 and Vijay Kumar Dubey (Kunnu Mama) PW23. Apart from it Udit Agarwal PW3 cousin of Lalit and Manoj Kumar Agarwal PW10, nephew of Hitesh Chandra Agarwal have also proved the presence of complainant Prabhu Dutt Diwedi and Vijay Kumar Dubey on the spot.

43. The occurrence of the incident at about 12.00 O'clock, taking the injured Rinku alias Sher Singh from Jain Nursing Home to Ram Manohar Lohia Hospital and his medical examination by Dr. Ram Kumar PW21 at 12.50 am i.e. within 50 minutes, clearly shows the presence of Sudhanshu Dutt Diwedi on the spot, particularly when the place of occurrence is at a distance of about 3 kms from Jain Nursing Home.

44. Haridutt Diwedi PW15, cousin of D-1, Sushil Shakya PW-25, MLA of Kayamganj and Bagish Chandra PW-26, local advocate, all invitee in Tilak ceremony, in their statements have also corroborated the presence of Sudhanshu Dutt Diwedi, Prabhu Dutt Diwedi and Vijay Kumar Dubey in Tilak ceremony of Lalit.

45. Prabhu Dutt PW-18 and Sudhanshu Dutt PW-17 are the nephews of Brahma Dutt Diwedi and Vijay Kumar Dubey PW-23 is brother-in-law (Saala) of the deceased Brahmadutt Diwedi. Brahmadutt Diwedi was a tall personality and a prominent public figure. Thus, the presence of these witnesses at the spot appears to be very natural who stated that they could not leave the spot prior to Brahmadutt Diwedi.

46. Prabhudutt Diwedi PW-18 and Vijay Kumar Dubey PW-23 are the eye witnesses who have proved the presence of Sudhanshu Dutt Diwedi PW-17 on the spot and there is nothing in the cross-examination on the basis of which their statements may not be relied upon.

47. Sudhanshu Dutt PW-17 stated during cross-examination that the shot was fired by Vijay Singh by putting his hand inside the car from the left rear window of car. To quote:

ftl f[kM+dh ds ikl ¼dkj dh f[kM+dh½ eSa [kM+k Fkk ¼?kVuk ds le;½ ml f[kM+dh ds vUnj gkFk Mky dj fot; flag us f}osnh th ij Qk;j fd;k] mlus xksyh ekjhA

48. Thus, the fact that Vijay Singh alongwith his three associates fired shots on Brahmadutt Diwedi and his staff sitting in the car is proved.

The challenge to the presence of eye witnesses on the spot.

49. Learned senior counsel next contended that PW17, PW18 and PW23 were not present on the spot at the time of the incident. The house of PW17 and PW18 are hardly at a distance of 400 meters from the place of occurrence and they would have arrived at Jain Nursing Home after coming to know about the incident. In fact they were not present on the spot. There was no chance of their being present on the place of occurrence. There is no proof that these 3 witnesses were invited in tilak ceremony. The photographs which would have been taken in tilak ceremony are not produced which are obtained by the I.O. to show that these witnesses were present on the spot. The evidence has been concocted. It is argued that it was on account of political rivalry that Vijay Singh was falsely roped in this case. The site witnesses, Udit Agarwal PW3, Manoj Kumar Agarwal PW10, the owner and employee of nearby medical stores who saw the accused running from the spot, did not name PW17, PW18 and PW23 as persons present on the spot. They did not name Vijay Singh as accused.

50. It is argued that Udit Agarwal PW3 son of Umesh Chandra Agarwal is real cousin of Lalit Agarwal. Umesh Chandra Agarwal is the brother of Hitesh Chandra Agarwal. PW3 said that he himself and Lalit Agarwal both lived in the same house where ceremony was organised. B.K. Tiwari D-2 was brought to Jain Nursing Home by PW3. This fact was stated by Dr. Naresh Chandra Jain PW4. Thus the presence of this witness on the spot was natural. He stated that when Brahmadutt Diwedi was leaving the place after function Anuj, Vivek and Manoj had come to see off him. Immediately thereafter he heard sound of four fires. He could not understand as to who is being shot and by whom. The witness ran away towards North on the road and after running about 30 to 40 feet, he came back and saw the assailants. He could not identify any one of the assailants. He saw them running away. This witness did not name Vijay Singh as assailant. Learned senior counsel also cited the statements of PW-7, PW-8 and PW-10 in support of his case.

51. Pawan Agarwal PW7 is the owner of Mittal Medical Store situated on the same road nearby towards the South of the place of incident. At the time of the incident he was sitting in his shop. He heard someone shouting "Pakro Pakro" and saw young men going towards Chowk i.e. towards South who passed through his shop. They were aged about 20 to 25 years having weapons in their hands. They were unknown to him. This witness also did not name Vijay Singh as accused.

52. Anil Kumar Dubey PW8 was a salesman at the Singhal Medical Store which is also situated on the same road towards the South to the place of the incident. He stated that he heard the sound of fires and thought it to be celebrity firing in the Tilak ceremony. Within half a minute he saw 3 persons running away towards chowk i.e. towards south who passed through his shop. They were young persons aged about 20 to 25 having weapons in their hand. This witness also did not name Vijay Singh as accused. He stated in reply to a leading question put by prosecutor in examination-in-chief that someone was telling in the crowd that Vijay has fired shots. It is argued that statement was an improvement which he did not state in his statement under Section 161 Cr.P.C.. V.P. Arya PW-67, Investigating Officer stated that this statement was not made by PW-8 in his statement under Section 161 Cr.P.C. On the tutoring of prosecution PW8 made this major improvement in his statement and tried to state that Sudhanshu Dutt PW17 was present on the spot.

53. Manoj Kumar Agarwal PW10 is resident of 2/25 Lohai road, Farukhabad and is the nephew of Hitesh Chandra Agarwal. Lalit was his Mamera Bhai. The house of this witness is hardly 300 steps away from the place of occurrence. This witness stated that he knew Vijay Singh. Brahmadutt D-1 was taken to Jain Nursing Home by this witness. Dr. N.C. Jain PW4 stated that Brahmadutt Diwedi was brought to his hospital by PW-10. PW-10 stated that before leaving the ceremonial house, Brahmadutt Diwedi was sitting with his father V.C. Agarwal, Umesh Agarwal and Hitesh Agarwal in the courtyard on the first floor of the house. While leaving the house Brahmadutt Diwedi was accompanied by aforesaid persons. Anuj and Udit also joined them. PW10 also followed him up to the room adjacent to the platform. This room is known as 'Dukan ki Gaddiwala room'. There he started hearing the altercation which took place between Ramji and electrician. Suddenly he heard sound of four to five gunshots. He rushed to the platform and saw the broken glass of the Ambassador car and one person running towards chowk from the place of incident after firing. PW10 fired 3 shots from his revolver on that person. According to him the assailant was young man aged about 30 years. It is argued that this witness did not name Prabhu Dutt Diwedi, Sudhanshu Dutt Diwedi and Vijay Kumar Dubey that they also accompanied Brahmadutt Diwedi while departing from the ceremonial house. Further he stated that all these 3 persons were somewhere around the place of occurrence. It is further argued that there is much difference between the persons present on the spot and person around the spot. It is argued that if Prabhu Dutt Diwedi, Sudhanshu Dutt Diwedi and V.K. Dubey would had been present on the spot, they would have taken Brahmadutt Diwedi and Brij Kishore Tiwari to Jain Nursing Home.

54. As against it, Mr. Murtaza, learned counsel for the CBI argued that the accused relied on testimony of PW3, PW7, PW8 and PW10, vis-a-vis PW17, 18 and 23 to prove that they were not present on the spot. If the statements of witnesses PW3, PW8 and PW10 are seen vis a vis PW17, 18 and 23 it is found that they have corroborated the presence of PW17, PW18 and PW23 in the house of Hitesh Chandra Aggarwal at the time of Tilak Ceremony and on the spot. To quote their versions:-

Udit Agarwal PW3, stated as follows:-

eSaus fryd lekjksg LFky vkaxu edku esa ftl le; igyh ckj ?kVuk okys fnu Jh czgenRr f}osnh dks cSBs gq;s ns[kk Fkk ml le; ogka muds lkFk lq/kk'kqa f}osnh] izHkqnRr f}osnh rFkk dqUuw ekek ugha FksA lq/kk'kqa f}osnh] izHkqnRr f}osnh o dqUuw ekek ls esjh eqykdkr gqbZ Fkh ijUrq eSa ;g ugha crk ldrk fd ftl le; igyh ckj Jh czgenRr f}osnh dks ns[kk Fkk mlls igys gqbZ Fkh ;k ckn esa D;ksafd eSa fryd lekjksg ds dk;Z esa O;Lr FkkA (P.No.132) Dr. Naresh Chandra Jain PW4, stated as follows:-

Jh czgenRr f}osnh o Jh c`tfd'kksj frokjh rFkk fjadw tSu uflZax gkse esa djhc 12-30 cts jkf= esa mijksDr esa yk;s x;s FksA mUgsa ykus okyksa esa eq[; yksx lq/kka'kq] mfnr o eukst FksA (P.No.136) ;g dguk xyr gS fd lq/kka'kq nRr f}osnh e`rdx.k o fjadw ds lkFk u rks esjs uflZax gkse vk;s Fks vkSj u gh izn'kZ d&14 ij mUgksaus esjs lkeus gLrk{kj cuk;s FksA (P.No.142) Anil Kumar Dubey PW8 corroborated the presence of Sudhanshu Dutt PW17 and others in the following words:-

jketh vxzoky ds ?kj dh rjQ ls idM+ks&idM+ks dk 'kksj vk jgk Fkk eSa muds ?kj dh rjQ x;kA ogka jke th vxzoky ds ?kj igqWapkA ogkWa eSaus ns[kk fd czgenRr th dks xksyh yxh Fkh mUgsa VkVk lweksa esa fyVk jgs FksA ogkWa HkhM+ yxh FkhA ogkWa jke th vxzoky] eukst vxzoky] mfnr vxzoky] lq/kka'kq f}osnh o vU; reke yksx FksA dkQh HkhM+ FkhA (P.No.177) PW8 further stated as follows:-

eSaus lh0ch0vkbZ0 dks ;g c;ku fn;k Fkk fd ekSds ij Þjke th vxzoky] eukst vxzoky] mfnr vxzoky] lq/kka'kq f}osnh o vU; cgqr ls yksx FksAÞ (P.No.181) Manoj Kumar Agarwal PW10 stated as follows:-

czgenRr f}osnh th] mudk xuj o MªkbZoj tSu uflZax gkse ys tk;s x;sA eSa muds lkFk mDr uflZax gkse x;k FkkA tSu uflZax gkse igqapus ds ckn Jh czgenRr f}osnh th ej x;sA tSu uflZax gkse igqapus ij og thfor FksA uflZax gkse esa xuj dks eSaus e`r gkyr esa ns[kkA (P.No.203) Haridutt Diwedi PW15, the cousin of D-1 stated as follows:-

ml fryd lekjksg esa lq/kka'kq nRr] izHkq nRr ,oa fot; dqekj nwcs vk;s FksA bl ckj eSa ogka ikSus X;kjg ;k X;kjg cts rd :dk Fkk fQj eSa vius ?kj pyk x;kA tc eSa jke th vxzoky ds ?kj ls x;k rks ogka czge nRr f}osnh] lq/kka'kq nRr] izHkq nRr o fot; dqekj nwcs jke th vxzoky ds ?kj ij FksA (P.No.266) Dr. Ram Kumar PW21 doctor of Ram Manohar Lohia Hospital stated as follows:-

ml et:c dks esjs le{k lq/kka'kq iq= nso nRr f}osnh fuoklh Q:Z[kkckn yk;s FksA (P.No.412) In the injury report of Sher Singh alias Rinku Exhibit Ka-22 it was noted by the doctor PW21 in the title portion that Sher Singh alias Rinku was brought to Ram Manohar Lohia Hospital by Sudhanshu Dutt PW17.

Sushil Shakya PW25 MLA from Kayam Ganj and one of invitee, stated as follows:-

eSa djhc 10 ;k 10 1@2 cts jkr jke th vxzoky ds ?kj fryd esa igqaWpk FkkA rc czgenRr th ogka igys ls gh ekStwn FksA muds ifjokj ds yksx ogka ekStwn FksA lq/kka'kq] izHkqnRr muds lkys fot; Hkh ogka FksA muds vykok gfjnRr Hkh ogka FksA rhu pkj yksx vkSj Hkh FksA (P.No.449) Bagish Chandra PW26, a local advocate and an invitee stated as follows:-

mlds ckn jke th vxzoky ds ?kj fryd esa x;kA ogka czgenRr f}osnh th eq>s ekStwn feysA eSa jkf= yxHkx 11 cts rd ogka jgk FkkA bl chp lq/kka'kq nRr f}osnh] fgeka'kq nRr f}osnh rFkk MkDVj gfjnRr f}osnh] izHkq nRr f}osnh rFkk fot; nqcs mQZ dqUuw ogka eq>s feysA 11-00 cts ds ckn eSa nwljs fryd lekjksg eksgYyk feUVw dwapk pyk x;kA (P.No.458)

55. Thus the presence of PW17, 18 and 23 in the tilak ceremony is proved. The versions of aforesaid witnesses and PW17, 18 and 23 leads to but one inference that they were present on the spot and they had gone to Jain Nursing Home for treatment of D-1, D-2 and driver Rinku except Prabhu Dutt PW18. The name of one person was required to be written on OPD cards who brought the injured to the nursing home. Thus the names of PW-10, PW-3, and PW-17 were noted on the OPD cards of Jain Nursing Home of D-1, D-2 and Rinku respectively as such persons. Thus as regards this submission made by learned senior counsel, we find that contention is not based on the accurate reading of the deposition of the witnesses.

56. The evidence, in each case, has to be considered from the point of trustworthiness and from the angle as to whether it inspires confidence in the mind of the Court to accept and that the question of credibility and reliability of a witness has to be decided with reference to the way he fared in cross-examination and the nature of impression created in the mind of the Court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties on either side. In such cases if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Where it is shown that there is enmity and the witnesses are near relatives too, the Court has a duty to scrutinize their evidence with great care, caution and circumspection; and very careful too in weighing such evidence.

57. All these aspects have been meticulously and elaborately considered by the learned Trial Judge in its proper perspective and convincing, cogent and sound reasons have been given to accept and act upon the evidence of PWs-17, 18 and 23 in this case. Nothing concrete has been pointed out or substantiated to oblige us to either discredit or reject their evidence in this case.

Joint liability in the commission of a criminal act under Section 34

58. Mr. Murtaza, learned Counsel for respondent submitted that the accused A-1 and A-2 have rightly been convicted and sentenced with the aid of Section 34 Indian Penal Code and in that regard he has placed reliance upon Arjun and another versus State of Chhatisgarh (2017) 2 SCC (Crl.) 53 and Yanab Sheikh versus State of West Bengal (2013) 6 SCC 428. Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 IPC if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.

59. The Supreme Court observed in Ashok Kumar v. State of Punjab MANU/SC/0089/1976 : 1977CriLJ164 that the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

60. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0717/1993 : 1993CriLJ2246 , Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

61. In the instant case, the Trial Court has rightly held that the evidence is sufficient to bring in application of Section 34 IPC.

If there was Tampering of evidence and OPD Cards Manipulated

62. Learned senior counsel next contended that evidence was tampered to show that Sudhanshu Dutt Diwedi PW17, informant was present at the spot. OPD Card Exhibit Ka-14 of Jain Nursing Home has been prepared to show that Sher Singh alias Rinku was brought to Jain Nursing Home by PW17. This document was prepared subsequently and was manipulated later on. Sher Singh was never examined in Jain Nursing Home. Dr. N.C. Jain PW4 stated that perhaps Sher Singh had received injuries somewhere on hand etc. PW4 stated that loose OPD cards are got printed in his nursing home where number is put on them by the doctor himself and these were entered into consultation register. This consultation register was never produced to confirm that Exhibit Ka-14 was prepared during night of 10.02.1997. There is no mark of identification of the patient on Exhibit Ka-14. The OPD cards were never handed over to the police. These were directly handed over to CBI after 20.02.1997. It is argued that CBI got them manipulated later on to prove that Sher Singh alias Rinku was brought by Sudhanshu Dutt Diwedi and was examined in Jain Nursing Home. Similarly, Exhibit Ka-12 and Ka-13 are the OPD cards of Brahmadutt Diwedi and Brij Kishore Tiwari respectively. PW4 noted the names of Manoj Agarwal and Udit Agarwal in his own handwriting but PW4 did not write the name of Sudhanshu Dutt Diwedi below his signature on the OPD card of Sher Singh. The explanation given by PW4 that signature of Sudhanshu Dutt Diwedi was visible is challenged. PW4 made a reference endorsement of Sher Singh to Lohia Hospital. It is argued by learned senior counsel that no reference letter was prepared and the original card was written in the hospital.

63. It is further argued that Exhibit Ka-22 was prepared at Lohia Hospital at 12.50 am. It is a Government hospital. This document is also challenged as concocted in order to bring the presence of Sudhanshu Dutt Diwedi in Lohia Hospital. The perusal of these documents showed that the copy of this document was handed over to Sudhanshu Dutt Diwedi but it was not produced by him in the Court or not given to the I.O. In fact this paper was manipulated and the false entry was made in papers to prove the presence of Sudhanshu Dutt Diwedi on the spot. Dr. Ram Kumar PW21 of Lohia Hospital reported on Exhibit Ka-22 that the injuries were kept under observation. It is argued that no follow up action was done or if it was done no report was produced before the Court. It was not identified that in fact Sher Singh alias Rinku was examined at 12.50 am on 10.02.1997 in Lohia Hospital. Doctor PW21 stated that left and right thumb impression of Sher Singh were obtained on the register but they were not visible. The signature of Rinku was not there on Exhibit Ka-22. Moreover, no mark of identification of Rinku was recorded on Exhibit Ka-22. These documents could be proved by Rinku himself and none else.

64. Further, it is argued that the endorsement was made by Sudhanshu Dutt Diwedi on Exhibit Ka-22 that he received the copy of injury report. The ink of this endorsement is different which clearly showed that the carbon which might have been used at the time of preparation of documents for the first time would have been different than the carbon while making this entry. PW-21 failed to explain this fact. Dr. Ram Kumar PW-21 also failed to produce connecting documents prepared at the time of medical examination of Rinku which shows that Exhibit Ka-22 was manipulated subsequently and in fact Rinku alias Sher Singh was not examined in Lohia Hospital.

65. However, Dr. Naresh Chandra Jain PW-4 of Jain Nursing Home proved OPD card of D-1 on which it is written that D-1 was brought by Manoj PW-10, D-2 was brought by Udit PW-3 and driver Rinku was brought by Sudhanshu PW-17. It was stated by doctor PW4 that the case of Rinku was referred to Ram Manohar Lohia Hospital since it was a medico legal case otherwise he could have been treated in Jain Nursing Home. PW4 specifically stated that Rinku was brought to the hospital by Sudhanshu Dutt Diwedi. In the injury report Exhibit Ka-22 of Lohia Hospital it was also noted that the patient was brought to Lohia Hospital by PW17. Dr. Ram Kumar PW-21 proved the injury report Ext. Ka-22 of Rinku from original medico legal voluntary register of the Lohia Hospital and that he was brought to Lohia Hospital by Sudhanshu Dutt Diwedi. The two doctors are independent witnesses and there is no reason to disbelieve their testimony. The copy of this register is Ext. Ka-22. The firearm injury was found on left forearm on the outer side near elbow of Rinku. That being so, we find no substance in the contentions of learned Senior Counsel. The document exhibits Ka12, Ka-13, Ext.Ka-14 and Ka-22 are found to be genuine documents.

Discrepancies and Contradictions in the evidence

66. The other reason assigned by learned senior counsel is that there were "material discrepancies". As indicated above we have perused the evidence of PW17, 18 & 23. We have not found any "material discrepancies" in their evidence. The discrepancies referred to by the learned senior counsel are in our opinion, minor, insignificant, natural and not 'material'. One of the discrepancy is alleged to be with regard to mode and manner of the incident. According to the FIR, Brahmadutt Diwedi D-1 was fired when he was 'about to sit' in the car but contrary to it, the complainant PW-17 stated before the Court that Brahmadutt Diwedi was fired upon by A-1 when he got seated in the car. It is argued that the witness could not explain the major contradiction between these two statements.

67. It will be appropriate here to mention the contents of FIR. As per the contents of the F.I.R., the incident took place on 09.02.1997 at 12 Midnight. The complainant (P.W.-17) stated in the F.I.R. that on 09.02.1997 at night he and his family members and uncle Brahma Dutt Dwivedi (Chacha), Member of Legislative Assembly, Bhartiya Janta Party (Former Minister), had gone to attend Tilak Ceremony of Lalit, son of Shri Hitesh Chandra Agarwal at his house on Lohai Road. His uncle was accompanied by his gunner, Brij Kishore Tiwari and Car Driver Sher Singh @ Rinku. After conclusion of Tilak ceremony at about 12 Midnight they were all ready to return. When his uncle was about to sit in his Ambassador bearing No.UP-76 A-5418 parked outside the house of Hitesh Chandra Agarwal, Vijay Singh, son of Prem Singh @ Prem Pahalwan, resident of Machhreta, Kotwali Farrukhabad armed with a revolver, and his three unknown associates also armed with revolvers, pistols and illicit weapons suddenly surrounded the car and all the four persons started indiscriminate firing with the weapons held by them on account of which uncle of the complainant Brahma Dutt Dwivedi, bodyguard Brij Kishore Tiwari were seriously injured. Driver Sher Singh @ Rinku also received firearm injury. All the three were taken in injured condition for treatment by the complainant, Manoj Agarwal, Udit Agarwal etc. to Jain Nursing Home, Badhpur. On the way, uncle of the complainant and the gunman succummbed to injuries. Injured Rinku was admitted to Ram Manohar Lohiya Hospital for treatment. The dead body of the uncle and the gunman are lying in Jain Hospital. Descriptions of the three unknown assailants is that they were of average built young people. All the accused had been seen by the complainant and witnesses in electricity and generator light and can be identified if they are brought in front of the witnesses. The incident has been witnessed by the cousin brother of the complainant, Prabhu Dutt Dwivedi, Mama/maternal uncle Vijay Kumar Dubey, Girish Chandra Agarwal and the injured driver etc., other than the complainant. On raising a hue and cry, the assailants fled. On account of fear they could not be chased. Uncle of the complainant and Vijay Singh had been inimical for quite some time on account of which he has been murdered as a result of conspiracy. Report be registered and appropriate action be taken.

68. In our opinion the alleged contradiction is of no consequence in view of the explanation given by PW-17. PW-17 stated that no different meaning could be assigned to the words given in the FIR. Actually PW-17 intended to write the same thing in the FIR. But on account of shock and horror of incident his mental condition was not fit, thus, he could not differentiate between "Baithe huye hai ki baith gaye." In the First Information Report, the facts were given in brief, so he could not differentiate and it was written by him in the F.I.R. that Bramha Dutt Diwedi was about to sit in the car at the time of the incident. The minor discrepancy was very natural in the circumstances of the case. The incident of double murder had occurred soon before registration of the FIR. The state of mind of the complainant at that time would explain the discrepancy, which in our opinion does not go to the root of the issue.

69. It is further contended that Sudhanshu Dutt Diwedi PW-17 was not present on the spot. He was a practising advocate on criminal side with the experience of 10 years on the date of incident. His statement was not reliable because he was a co-accused alongwith Brahmadutt Diwedi in a murder case of Shishu Pal and in so many other criminal cases. He started practice under Brahmadutt Diwedi. PW17 refuted this contention and stated that final report was filed in case of Shishupal and no other criminal case was pending against him. Moreover, there is no rule to disqualify an accused from being a witness.

70. It was further argued that when Brahmadutt Diwedi joined politics, he started looking after the cases of Brahmadutt Diwedi. When Smt. Damyanti, wife of accused Vijay Singh was Chairperson of Nagar Palika, Farukhabad, this witness was Sabhasad in Nagar Palika, Farukhabad and used to sit in opposition The malafide of this witness could be seen from his statement where he refused to accept that Smt. Damyanti Singh is the wife of the accused Vijay Singh.

71. Coming to this facet of the submission made by learned senior counsel, we find that the contention urged by the learned Counsel is not based on an accurate reading of the deposition of the witness. To quote the words of PW-17:

eSa ugha crk ldrk fd ne;Urh flag fot; flag dh iRuh gS vFkok ugha ijUrq og fot; flag ds lkFk gh jgrh gSA fot; flag dh ,d vU; iRuh ftls eSaus ns[kk ugha gS] lquk gSA (page 298) Statements in the Court vis-a-vis under Section 161 and Lapses on the part of Investigating Officer

72. Learned senior counsel contended that that PW-17, PW-18 and PW-23 changed their version in the Court and they made glaring improvements in their statements in Court. These improvements materially affect the creditworthiness of the prosecution case and it cannot be said that the prosecution has established its case beyond all reasonable doubt, hence it is not safe to base a conviction. Reliance is placed in the ruling of Ashok Vishnu Davare vs State of Maharashtra (2004) 9 SCC 431. Where the contradictions and discrepancies are material and omission(s) also amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. Reliance is placed on the ruling in State of Rajasthan vs Rajendra Singh (2009) 11 SCC 106.

73. It is further contended that if the complainant in the FIR or the witness in his statement under Section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded as has happened in this case. Reliance is placed on the rulings of State vs. Sait (2008) 15 SCC 440, Sunil Kumar Sambhudayal Gupta (Dr.) vs State of Maharashtra (2010) 13 SCC 657 and Ishwar Singh vs State of U.P. (1976) 4 SCC 355. It is argued by learned senior counsel that for the first time PW17 stated the fact about the incident in the Court that Vijay Singh came just opposite to him near the rear window of the car with the revolver. He put his hand inside the car and fired shots on Brahmadutt Diwedi. He also stated that accused Vijay Singh ran away towards Nala Machratta waving his revolver in the air. This statement was not given by him under Section 161 Cr.P.C.

74. Learned senior counsel also cited that PW-18 had given his statement to the CBI that Vijay Singh had ran away towards his house ie. Machratta alongwith his associates but in the Court he changed his version and stated that Vijay Singh ran towards the North and other three ran away towards South. It is argued that it is one of the major contradiction in his statement. PW-18 admitted that he knew Updesh Singh Chauhan whose nephew and 3 others were killed by same person. PW17 denied that he knew Updesh Singh Chauhan. PW18 did not state in his statement under Section 161 Cr.P.C. that the incident was witnessed by him, or by Sudhanshu Dutt Diwedi, Vijay Kumar Dubey, Ramji Agarwal, Manoj Agarwal, Udit Agarwal and others. He stated that his statement was never recorded by CBI. According to PW67 the statement of Prabhu Dutt Diwedi was recorded by CBI.

75. The learned Trial Judge after evaluating the evidence on record arrived at the opinion that the conduct of the Investigating Officer did not appear to be above board. The eye witnesses and other prosecution witnesses have made complaints during their statement that either their statements were not recorded by the Investigating Officer under Section 161 Cr.P.C. as stated by them or statements were not recorded at all. The complainant PW-17 named accused Vijay Singh in the FIR. PW-17 made complaint that the Chief Investigating Officer PW67 asked him that the accused Vijay Singh was not culprit in this case, hence the evidence should not be given against him. Though the Chief Investigating Officer denied from this fact but his conduct during investigation speaks volumes.

76. The first charge sheet Exhibit Ka-112 was submitted by PW-67 against Vijay Singh under Section 120-B I.P.C. only and not under substantive Section 302 and 307 IPC which fully supports the case of the complainant. It appears that the Investigating Officer PW-67 got swayed by the statement of accused taking it as a gospel truth. Later on he realized his mistake and the charge sheet was submitted against accused Vijay Singh under Section 302 and 307 I.P.C. The conduct of PW-67 becomes challengeable particularly when accused Vijay Singh in his statement under Section 313 Cr.P.C. did not take the plea of alibi. It is not the case of accused that at the time of incident he was present elsewhere.

77. In the instant case the accused Vijay Singh was named in the FIR and three accused were unknown at the time of incident. During investigation name of Sanjeev Maheshwari, Ramesh Thakur and Balwinder Singh came to light. TI Parade of accused Sanjeev Maheshwari and Ramesh Thakur were conducted by the Investigating Officer. But despite the fact that the letter was written to the District Magistrate for TIP of third accused Balwinder Singh, the TIP of Balwinder Singh was not conducted which again revealed the serious lapse on the part of the Investigating Officer PW-67 which proved gross negligence on his part during investigation. The statements under Section 161 Cr.P.C. have been written by the Investigating Officer. Under such circumstances no benefit of such lapses can be given to the accused nor the statements allegedly recorded under 161 Cr.P.C. by the Investigating Officer of various witnesses. No inference could be drawn against the prosecution on the basis of statements recorded under Section 161 Cr.P.C.

78. It is further argued by learned senior counsel that PW-18 was not present on the spot. PW18 was found at the residence of Brahmadutt Diwedi when Sub-Inspector S.K. Bhardwaj had gone to the house of Brahmadutt Diwedi after 12.05 AM prior to FIR was lodged on receiving information that the firing was made on Brahmadutt Diwedi. This fact is mentioned in GD report No. 3 time 1:40 a.m., dated 10.02.1997, Ext. Ka-25.

79. This contention is not acceptable since witness PW-18 has explained his presence at the house of Brahmadutt Diwedi by stating that after the incident he immediately rushed to the house of Brahmadutt Diwedi to inform about the incident and to collect some money for treatment of Brahmadutt Diwedi. It is argued that his conduct was not natural. The treatment of Brahmadutt Diwedi an ex-minister and a prominent leader of District Farukhabad was more important than collecting the money from the house.

80. We are unable to understand that when other equally responsible family members of D-1 were there to look after the injured why one of them in this case PW18 would not go to home and make arrangement of money for treatment of the injured. The conduct of PW18 was quite natural and in consonance with dignity and decorum of their family. It is also worth mentioning here that Om Prakash Sharma, SHO, PW-57 stated that the investigation was started by him after registration of FIR. Learned senior counsel has placed reliance on GD No.3 which was prepared prior to the registration of this criminal case. There is no reason to disbelieve the statement of PW18 about his presence at the house of D-1 who had gone there to make arrangement of money for the treatment of the injured after the incident.

81. It is further argued that PW-17 stated that when Brahmadutt Diwedi was taken to hospital, his clothes were also blood stained but he did not hand over clothes to the police. A person who was a criminal lawyer having such standing could not be expected to behave like this. This conduct was quite unnatural. Learned senior counsel also pointed out that lacunae in the site plan prepared by the police Ext. Ka-73 and prepared by CBI Ext. Ka-99.

82. However, no inference can be drawn against the prosecution on the basis that the blood stained clothes were not given by PW-17 to the police or there were lacunae in two site plans etc. which are lapses on the part of the Investigating Officer. In Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC 126) it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined de hors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand on the way of evaluating the evidence by the courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large.

83. It was observed by the Supreme Court in Ram Bihari Yadav v. State of Bihar and Ors. (1998 (4) SCC 517) that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice.

84. In the instant case, the lacuna in the investigation stands completely covered by the statements of witnesses. The evidence of the witnesses clearly establishes the story of the prosecution. In view of the clear statement of the prosecution witnesses, we have no hesitation in rejecting the arguments of the appellants.

85. Learned senior counsel further pointed out the other discrepancies in the evidence by stating that PW-18 stated that he reached Jain Nursing Home at 12.45 am and he was informed by Sudhanshu Dutt Diwedi PW-17 that Brahmadutt Diwedi and Brij Kishore Tiwari have died. The witness is telling a lie because according to the statement of Dr. Ram Kumar PW21 of Lohia Hospital injured Rinku was brought to him at 0.50 am in Lohia Hospital by Sudhanshu Dutt Diwedi. It is argued that neither PW-17 nor PW-18 were present on the spot. They reached the spot but after the incident had taken place and the story has been concocted by the prosecution.

86. It is further argued that PW23 is real brother in law of Brahmadutt Diwedi. He is a practising lawyer from Farukhabad doing practice in criminal side also. PW23 claims that he was invited to Tilak ceremony. He had gone there and saw the incident but his statement was cyclostyle type. He stated that the time of incident he was standing just behind PW17. But this fact was never said by Sudhanshu Dutt Diwedi PW17. This witness stated that there was no other car parked near the car in which incident took place. PW18 stated that Brahmadutt Diwedi was taken to Jain Nursing Home in Tata Sumo driven by Manoj Agarwal. Manoj Agarwal never said that car was driven by him. Tata Sumo was driven by driver Raj Singh who was the driver of Vishnu Chand Agarwal. Driver Raj Singh was not examined in this case who was an important witness. PW-18 did not state that where Tata Sumo was parked at the time of the incident. He left the spot alongwith Manoj Agarwal, Brahmadutt Diwedi and Sudhanshu Dutt Diwedi in Tata Sumo. Further PW-18 said that Armada vehicle had also come within 10-15 minutes. PW18 stated that injured Brij Kishore Tiwari was taken to hospital in Armada but on the way near chowk, Brij Kishore Tiwari was shifted to Tata Sumo. This fact has not been stated by any other witness, so he introduced a new fact. When again PW-18 was asked about the distance of parking of Tata Sumo, he said that it was parked at a distance of 15 to 20 meters away from the place of occurrence which was contrary to his earlier statement. PW-18 also could not tell whether Brahmadutt Diwedi was bleeding or not and whether blood was seen in Tata Sumo. He also could not tell who lifted the gunner into vehicle. PW-18 could not tell whether the driver received injuries inside the car or outside the car. Again he said that he could not see as to who took the driver to the hospital.

87. The alleged contradictions do not come within the category of material contradictions. The statements of PW-17, PW-18 and PW-23 are recorded with time lag of about 4 to 5 years from the date of incident. In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. As indicated above we have not found any material discrepancies in the evidence of the PW17, 18 &23.

88. There is no dispute with regard to the place of commission of the crime. It was committed in front of house of Hitesh Chandra. If we critically examine the evidence of PW 17, there is nothing to doubt the correctness of the version given by him. PW-1, complainant in the present case has proved the FIR (Ext. Ka-19) lodged by him. He has stated the contents of Ext. Ka-19 in his statement and in cross examination also there is no material contradiction between the facts stated in the FIR and his evidence in the trial Court which has been corroborated by the evidence of PW-18 and PW-23.

89. Evidence of PW-17, PW-18 and PW-23 has been analysed with great care and caution by the Trial Court. The so-called improvements do not, in any way, introduce a new facet of the case. Every omission is not a contradiction. Minor details which are not indicated in the first information report are later on elaborated in court do not justify a criticism that the case originally presented has been abandoned to be substituted by another one. The evidence of PW17, 18 & 23 appears to be clear, cogent and trustworthy. Nothing substantial has been brought on record to disregard the testimony of these witnesses. Merely because of the fact that there were some minor omissions, which are but natural, considering the fact that the examination in court took place years after the occurrence the evidence does not become suspect. Necessarily there cannot be exact and precise reproduction in any mathematical manner. What needs to be seen is whether the version presented in the court was substantially similar to what was stated during investigation. It is only when exaggerations fundamentally change the nature of the case, the court has to consider whether the witness was telling the truth or not. As has been held by the Trial Court, the evidence of PW 17, 18 & 23 was truthful evidence. They have graphically described the assaults on the deceased. Section 34 of the Act is clearly attracted. This is not a case where anything substantial has been brought on record to disregard the evidence of three eye witnesses.

Whether the FIR is anti timed

90. Learned senior counsel argued on behalf of accused A-1 that FIR was anti timed since the FIR and GD report were not in existence till the postmortem of D-1 was conducted. The postmortem of D-1 was conducted at 7.35 AM and that of D-2 was done at 8.20 AM. The inquest report of D-1 was prepared from 3.00 AM to 4.30 AM. It was having eight enclosures and nine pages. The inquest report of D-2 was prepared from 4.30 AM to 6.00 AM Dr. Yogendra PW-20 conducted postmortem on bodies of D-1 and D-2 who gave serial Nos. 9 and 10 to the FIR and GD report as part of postmortem as against the serial nos. 2 and 3 which were given to FIR and GD report as part of inquest report of D-1. The FIR and GD report were not signed by PW-20. It is argued that the doctor PW-20 could not explain why number of enclosures and pages mismatched in the inquest report and postmortem report and FIR and GD report were not signed by him.

91. As against it, Mr. Misra, learned senior counsel for the State submitted that FIR is not anti timed. The complete inquest reports were sent along with dead bodies of D-1 and D-2 for postmortem to PW-20. Jagbeer Singh PW-1 conducted and prepared the inquest report who proved that the inquest reports were sent to the doctor PW20 for postmortem along with complete papers. No question was put to PW-1 during cross-examination that FIR and GD report were missing from the inquest report. The FIR and GD, the enclosure of inquest report of D-2 were signed by the doctor PW-20. Thus, it was due to human error that FIR and the GD report of inquest report of D-1 could not be signed by PW-20.

92. Mr. Murtaza, learned counsel for the CBI vehemently argued and opposed this contention stating that the facts about crime number, the sections of IPC, the name of police station, the time and date of report in the case and the name of the person who made a complaint in the police station were mentioned in the inquest report. At the bottom of the first page of inquest report, there is stamp and signature of doctor PW-20 and on it the timings of inquest report of D-1 is mentioned as 3.00 AM to 4.30 AM. On the second page other necessary details of the incident are given. Photo lash exhibits Ka-6 and other documents upto Ext. Ka-8, all confirm the fact that the FIR in this case was registered at police station at 1.45 AM. The FIR was thus not anti timed.

93. The second reason given by learned senior counsel about the FIR being anti timed is that the special report was neither sent nor received in the office of the Magistrate concerned. In GD No.4, it was stated that special report was prepared. GD No.7 stated that it was sent through constable Kishan Lal but Kishan Lal was not examined. H.M. Hawaldar Singh PW-24 stated that Kishan Lal could explain that the special report was delivered by him in the office of Magistrate. PW-57 and PW-67 also could not throw light whether special report was received in the office of Magistrate.

94. The contention is not acceptable. Head Moharir Hawaldar Singh PW-24 proved that the special report was prepared, and was sent to the office of Magistrate through Kishan Lal. PW-24 proved relevant GD report nos. 4, 7 and 35 and that the special report was delivered in the office of Magistrate. GD No.4, time 1.45 AM, dated 10.02.1997 Ext. Ka-27 corroborated the fact that the special report was prepared in this case. GD report no.7, time 4.15 AM dated 10.02.1997, Ext. Ka-28 corroborated the fact that the special report was sent through constable Kishan Lal to the office of Magistrate. GD report No.35, time 18.35, dated 10.02.1997 Ext. Ka-29 further corroborated that constable Kishan Lal came back to the police station who delivered the dak of this case in the office of Magistrate. Thus, from the aforesaid discussion, it is found established that the dak which included special report was delivered to the office of Magistrate same day. There is thus no force in the contention of learned senior counsel and the FIR is not anti timed.

Handwriting and Signature of FIR Challenged

95. Mr. Singh, learned senior advocate also challenged the handwriting of FIR and signature therein alleging that the signature of Sudhanshu Dutt Diwedi on Exhibit Ka-19 FIR does not match with his signature on admitted document Exhibit Kha-1. PW17 stated that Kha-1 is a letter which would have been written and signed by him being a political and social worker.

96. The Trial Court compared the signatures of the complainant on the FIR Ext. Ka-19 and Ext. Kha-1 and signatures made by PW-17 on the various pages of his statement. It was observed by the Trial Court and rightly so that there was no substance in the contention of learned counsel for the accused for the following reasons:

Firstly, because Sudhanshu Dutt PW17 proved the FIR Exhibit Ka-19 that it was written by him and signed by him. Secondly, PW17 explained the difference by stating that the style of signature on the FIR was different from that of Kha-1. It was written by him in FIR in his hastlipi and not as signature usually done by him and as it was done by him on Exhibit Kha-1. When statement of PW-17 was recorded upto page 24, the question was put to him in Court challenging his handwriting and signature on FIR. PW17 then started making both types of signatures which were made from pages 25 to 44 of his statement. The trial Court compared these signatures. The signature on Ext. Kha-1 which tallied with signature on page 1 to 24 of statement of PW17 and signature on Ext. Ka-19 FIR tallied with one of the signatures on pages 25 to 44. It was observed by the Trial Court that the signatures made by this witness upto pages 1 to 24 were in different style and from page No.25 to 44 he made his signatures in both styles i.e. hastlipi and signature style. The one style matched with Exhibit Kha-1 and the other hastlipi signature matched with FIR Exhibit Ka-19. The signatures made on the FIR and made on the pages of the statement from 25 to 44 were found matching. The Courts are empowered under Section 73 of the Evidence Act to compare disputed writings/signatures with admitted or proved writings/signatures to ascertain whether a writing is that of the person by whom it purports to have been written.

97. In Murarilal v. State of M.P., AIR 1980 SC 531 the Supreme Court as under:-

The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard there may be cases where neither side calls an expert, being ill able to afford him. In all such cases it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.

98. Thus the argument challenging the handwriting and signature of the FIR is found baseless.

Non-examination of important witnesses

99. Learned senior counsel argued that Sher Singh alias Rinku was the driver of ambassador car in which Brahmadutt Diwedi was done to death. Sher Singh also suffered injuries during this incident, thus being an injured witness he was very material for stating the actual state of affairs. He has been deliberately withheld by the prosecution to conceal the truth. The host of the ceremony, Ramji Agarwal or Hitesh Chand Agarwal and other important witnesses have not been examined by the prosecution to prove the presence of these 3 witnesses in the Tilak ceremony. Thus, presumption would be drawn against them under Section 114 of Illustration (g) of Indian Evidence Act. Mr. Murtaza submitted that non-examination of certain witnesses in the backdrop of the present case does not affect the prosecution version inasmuch as the witnesses cited by the prosecution clearly established the charges against the accused persons.

100. With regard to the contention of learned senior Counsel that non-examination of important site witnesses viz., Sher Singh alias Rinku, Ramji and Hitesh Chandra Agarwal and others draws adverse inference against the prosecution, the Trial Court has rightly held that adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence. We cannot lose sight of the fact that ghastly acts, of the nature and gravity as the present one, when committed in a public place may very well create a sense of fear and shock in the minds of the witnesses and thus prevent them from coming forward and deposing against the perpetrators of the crime. If the testimonies of those witnesses, who have deposed during the trial, are otherwise found to be reliable, trustworthy and cogent, the said evidence cannot be disbelieved or discarded merely because the prosecution has failed to examine other witnesses allegedly present on the spot.

101. It is not the number, the quantity,  but  the  quality of evidence  that  is  material. The time honoured principle is that evidence has to be weighed and, not counted. On this principle stands the edifice of Section 134 of the Evidence Act, 1872. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The Supreme Court observed in Manga alias Man Singh v. State of Uttarakhand MANU/SC/0464/2013 : (2013) 7 SCC 629, that it is the quality of the witness that matters and not the quantity, when the related witness was examined and found credible. In such a case non-examination of an independent witness would not be fatal to the prosecution case.

102. In the instant case, it has come in evidence of prosecution that driver Rinku got afraid of the incident where two persons were killed and he himself suffered fire arm injuries and thus he left the job. His whereabouts were not known to the prosecution who could not be produced in evidence. The submission was thus unacceptable that non-examination of a person like driver Rinku and other persons such as Ramji and Hitesh Chandra Agarwal, the host affected the prosecution version or created any doubt in the mind of the Court. Since the witnesses examined by the prosecution were trustworthy and the court can safely act on their testimony, there was no justification to draw any adverse inference against the prosecution.

Whether the conduct of PW-17 was not natural

103. It is next contended by learned senior counsel that Sudhanshu Dutt Diwedi was real nephew of Brahmadutt Diwedi. Brahmadutt Diwedi was declared dead in Jain Nursing Home. It was not natural conduct of PW17 that despite death of his uncle Brahmadutt Diwedi, he left Jain Nursing Home just for treatment of driver Rinku at Lohia Hospital.

104. We are unable to understand that how it can be laid down as a rule of universal application that when the employer and his gunner succumbed to fire arm injuries in a ghastly and brutal attack, his injured driver having suffered firearm injuries in the same incident should be left unattended to die. There were other members of the family to take care of the situation. Moreover, Sudhanshu Dutt Diwedi PW17 is also the complainant who prepared the FIR and lodged the report at the P.S. concerned. There is nothing unusual on the part of PW-17 to carry driver to Lohia Hospital for his treatment. Occasion cried out for such humanity. He also prepared the FIR there and lodged it promptly at the police station in time. His uncle (Mama) V.K. Dubey, Prabhu Dutt Diwedi and others were left there in Jain Nursing Home to look after the dead bodies of Brahmadutt Diwedi and his gunner.

Dying Declaration

105. Mr. Singh, learned senior counsel next contended that dying declaration was made by Brahama Dutt Diwedi to Manoj Kumar Agarwal P.W.10 who stated as under:-

**eS fnoosnh th dh xkM+h ds ikl tgka 'kh'kk VwVk Fkk] x;kA xkM+h esa ml le; Jh c`gEenRr fn~oosnh th ihNs okyh lhV ij FksA ge yksx tc ogka igqaps rks mUgksus dgk fd gesa xksyh yxh gSA xuj xkM+h ds ckgj MªkbZoj dh lhV dh rjQ fxjk gqvk FkkA MªkbZoj viuh lhV ij eq>s ugha fn[kkA**

106. It is argued that the said statement of Brahmadutt Diwedi amounts to his dying declaration. When a dying declaration is made by a person, he will definitely name the assailants if he is known to him. Vijay Singh was well known to Brahmadutt Diwedi but he did not name Vijay Singh in his dying declaration. Thus, Vijay Singh was not an accused in this case and was falsely implicated.

107. It has been appositely appreciated by the learned Trial Judge that the said statement was given by Manoj Kumar Agarwal during his cross-examination and the reply given by a witness during cross-examination depends upon the nature of the leading question put to him by the counsel of the accused. If the question had been put to Manoj Kumar Agarwal as to who fired shots on Brahmadutt Diwedi D-1, the name of Vijay Singh would have come in his statement. Thus there was no substance in the argument.

Motive

108. The next circumstance relates to the motive which is another crucial point regarding commission of the said offence by the appellants. The prosecution has proved the motive against the accused. It was stated in the FIR that the relations between Brahmadutt Dwivedi and Vijay Singh were inimical since long. The complainant proved the political enmity between Brahmadutt Dwivedi and the accused A-1. It has come in evidence that in 1996 Vijay Singh and Brahmadutt Dwivedi contested elections of MLA from Farukhabad where Vijay Singh was defeated and election was won by Brahmadutt Dwivedi. He was going to vote in primary pathshala Kanaujia. Sister of Brahmadutt Dwivedi, Smt. Madhurima Trivedi was there from his side. Smt. Damyanti Singh entered there for forged voting. She was resisted by Smt. Madhurima which resulted in a sccuffle between them. In the evening Brahmadutt Dwivedi had given a speech on the public place where he said that he would have hands of Vijay Singh cut and would get Damyanti dragged through her hairs. In his statement under Section 313 Cr.P.C. Vijay Singh stated that there was political rivalry between Brahmadutt Dwivedi and Vijay Singh. Vijay Singh was rising politician who was giving a lead to Brahmadutt Dwivedi, thus he was falsely implicated in this case so that his future may be blocked. His wife Damyanti Singh contested the election of Chairperson of Nagar Palika Parishad in 1995 and then again elected in 2000 as its Chairperson, thus Brahmadutt Dwivedi and his family were on inimical terms with him.

109. Accused Vijay Singh A-1 further stated that all witnesses of CBI and of the family of Brahmadutt had given their evidence under pressure of the family of Brahmadutt D-1. He did not commit murder of Brahmadutt Dwivedi or his gunner. In 2002 he contested elections for MLA against Prabha Devi wife of Brahmadutt in which Vijay Singh won and she was defeated. There were several enemies of D-1. Several criminal cases were pending against him. He was falsely implicated in this case. Thus it is established from evidence on record that political rivalry was there between two parties.

110. Even otherwise also as per the settled legal position where positive evidence against the accused is clear, cogent and reliable, it becomes immaterial whether motive on the part of the accused has been proved by the prosecution or not. If that is the correct position, the absence of motive, in this Court's opinion, is of little or no consequence. Here, it would be worthwhile to reproduce the following paragraph from the recent judgment of the Apex Court in the case of Amitava Banerjee @ Amit @ Bappa Banerjee Vs. State of West Bengal, reported in MANU/SC/0946/2011 : AIR 2011 SC 2913, as under:

"Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty."

111. In the facts of the present case, the positive evidence is sufficient enough to convict the accused.

112. Now we shall deal with the appeal filed by the appellant Sanjeev Maheshwari A-2 who was not named in FIR. He is one of three accused persons who were unknown at the time of occurrence but he was identified by witnesses in Test Identification Parade and in the court. During investigation name of Sanjeev Maheshwari A-2, Ramesh Thakur and Balwinder Singh came to light. Ramesh Thakur died during pendency of case and case abated against him vide order dated 04.04.2003. Balwinder Singh was acquitted for want of evidence. A-2 was arrested by CBI on 22.04.1997. He was kept baparda till his TI Parade on 01.05.1997. He was correctly identified by PW-17 in TI Parade and in the Court. The pistol and cartridges were recovered from him at the time of his arrest. The empties were recovered from the spot on 10.02.1997 and 11.02.1997. It was found on forensic examination that the crime empties were fired from crime weapon.

113. There is evidence to prove that A-2 absconded with A-1 and two other accused after the incident. They moved to various places and stayed in hotels and travelled through various trains. They concealed their identity by making entries in registers etc. of hotels under fictitious names. The specimen handwriting/signatures of A-2 matched with the disputed handwriting collected by the CBI from various hotels, railway station etc. on forensic examination.

Test Identification Parade (TIP) of Sanjeev Maheshwari and His Identification in the Court:

114. The validity of TI Parade of appellant A-2 and his identification in the court by PW-17 is one of the important matter in issue.

115. It is fairly well-settled that identification of the accused in the Court by the witness constitutes the substantive evidence in a case and that the prior identification in a test identification parade is used only to corroborate the identification in Court. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Identification parades, therefore, remain in the realm of investigation. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the Court. Holding of test identification parade is not the rule of law but rule of prudence. Normally identification of the accused in a test identification parade lends assurance so that the subsequent  identification  in  Court during trial can be safely relied upon. However, even in the absence of such test  identification parade, the identification in Court  can, in given circumstances, be relied upon, if the witness is otherwise trustworthy and reliable. The law on the point is well-settled and succinctly laid down in Ashok Debbarma (supra).

116. Following observations were made by Supreme Court in Malkhansingh and Ors. v. State of M.P. MANU/SC/0445/2003 : (2003) 5 SCC 746 in this regard:

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. MANU/SC/0043/1958 : AIR 1958 SC 350, Vaikuntam Chandrappa v. State of A.P

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Supreme Court of India

Prakash Khandre vs Dr. Vijaya Kumar Khandre And ... on 9 May, 2002

Author: Shah

Bench: M.B. Shah, Bisheshwar Prasad Singh, H.K. Sema

CASE NO.: Appeal (civil) 2-3 of 2002 Appeal (civil) 1455 of 2002 PETITIONER: PRAKASH KHANDRE Vs. RESPONDENT: DR. VIJAYA KUMAR KHANDRE AND OTHERS DATE OF JUDGMENT: 09/05/2002 BENCH: M.B. Shah, Bisheshwar Prasad Singh & H.K. Sema JUDGMENT:

Shah, J.

In the background of facts briefly stated below, questions for determination in these appeals are

1. In an Election Petition under the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'), when contest for election to the post of MLA is by more than two candidates for one seat and a candidate, who was disqualified to contest the election, is elected whether the Court can declare a candidate who has secured next higher votes as elected? And

2. Whether contract between the elected candidate and the Government was subsisting on the date of scrutiny of nomination papers?

Appellant Prakash Khandre contested election from No.2- Bhalki Constituency of Karnataka State Legislative Assembly and was declared elected. Respondent no.1 Dr. Vijay Kumar Khandre contested the said election but was defeated. The details of the votes secured by each candidate are as follows: -

Sl.No. Name of the Candidate No. of Votes Difference Polled

01. Shri Prakash Khandre 47,132 | | 10327

02. Dr. Vijay Kumar Khandre 36,805 |

03. Sri Bheemanna Kolle 660

04. Shri Shivaraj Patil 1,054

05. Sri Siddaramaiah S. Swamy 177 Respondent no.1 challenged the said election by filing Election Petition No.25/99 and contended that declaration of election dated 5.9.1999 resulting in favour of the appellant was illegal and void. He prayed that he may be declared as duly elected to Karnataka State Legislative Assembly on the ground that under Section 9-A of the Act, appellant was disqualified to contest the election as there were subsisting contracts entered into by him in the course of his business with the State Government.

Further, a voter Mr. Baswaraj D. Honna - appellant in C.A. No. 1455 of 2002 also filed Election Petition No.30/99 for a declaration that election of Mr. Prakash Khandre was void under Section 100(1)(a) and Section 100(1)(d)(i) of the Act.

Appellant also filed Recrimination Petition under Section 97 of the Act praying that in the event of his election to the constituency being declared void, respondent No. 1 Dr. Vijay Kumar Khandre should not be declared as elected as he is guilty of corrupt practices as specified in Section 123 of the Act.

The High Court of Karnataka at Bangalore [Mr. Justice A.V. Srinivasa Reddy] by its judgment and order dated 21.12.2001 allowed the election petition filed by respondent No.1 and the election of appellant was declared void under section 100(1)(a) on the ground that work of effective improvement and asphalting of Halburga- Bawgi-Kamtana road was continued to be carried out by Prakash Khandre even after purported closure of contract. With regard to the rest of the contract works, the High Court held that contracts were terminated. The Court also declared that the votes polled by the elected candidate would become wasted and, therefore, Dr. Vijay Kumar Khandre who has secured the next highest number of valid votes has to be declared elected under Section 101 of the Act and was declared accordingly. That order is challenged by Prakash Khandre by filing Civil Appeal Nos.2-3 of 2002. Civil Appeal No. 1455 of 2002 is filed by Basavaraj D. Honna.

At the time of admission of this matter, by order dated 18.1.2002, the Court granted interim relief as under:

"Appeals admit.

The impugned judgment is stayed thereby entitling the appellant only to attend the Assembly Sessions and sign the register but he will neither participate in the proceedings nor vote nor draw remuneration in his capacity as Member of the Legislative Assembly till the disposal of the appeals. Any further documents to be filed by either party be filed within four weeks from today.

These appeals may be listed for final disposal in the second week of March, 2002.

On the other respondents, dasti notice is permitted."

Re: Question No.1 At the time of hearing of these appeals, learned senior counsel Mr. Ashok Desai submitted that the order passed by the High Court declaring election-petitioner Dr. Vijay Kumar Khandre as elected is, on the face of it, illegal and erroneous as election was contested by 5 candidates and in support of his submission, he referred to various decisions rendered by this Court. As against this, Mr. K.N. Bhat, learned senior counsel for respondent No.1 submitted that the High Court rightly declared Dr. Vijay Kumar Khandre as elected and the decision of the High Court is based on the provisions of Section 101 of the Act.

For appreciating the aforesaid submissions, we would first refer to the relevant provisions of the Act, namely, Sections 53, 84 and 101 of the Act which are as under:

"53. Procedure in contested and uncontested elections.(1) If the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken.

(2) If the number of such candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats.

(3) If the number of such candidates is less than the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be elected and the Election Commission shall by notification in the Official Gazette call upon the constituency or the elected members or the members of the State Legislative Assembly or the members of the electoral college concerned as the case may be, to elect a person or persons to fill the remaining seat or seats.

Provided that where the constituency or the elected members or the members of the State Legislative Assembly or the members of the electoral college having already been called upon under this sub-section, has or have failed to elect a person or the requisite number of persons, as the case may be, to fill the vacancy or vacancies, the Election Commission shall not be bound to call again upon the constituency, or such members to elect a person or persons until it is satisfied that if called upon again, there will be no such failure on the part of the constituency of such members.

84. Relief that may be claimed by the petitioner. A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.

101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion

(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or

(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected."

From a reading of sub-section (2) of Section 53, it is clear that if number of candidates is equal to number of seats to be filled, the returning officer has to declare all such candidates to be duly elected to fill those seats, meaning thereby it would be uncontested election. Further, if the number of contesting candidates is more than the number of seats to be filled, a poll is required to be taken. Finally, after taking poll if one candidate is declared elected and there are only two candidates who contested for the election, and if it is found that elected candidate was disqualified for one or other reason for being declared to be elected then his election would be set aside and unsuccessful candidate, if otherwise eligible, could be declared as elected and that relief could be granted in view of Section 53 read with Section 84 of the Act.

However, the question which requires consideration isif there are more than two candidates for one seat and the elected candidate is subsequently found to be disqualified, whether the candidate who has secured more votes than remaining candidates should be declared as elected or not? For this, we would consider the ingredients of Section 101 which inter alia provide that after declaring election of returned candidate to be void, the High Court may declare the petitioner or such other candidate to have been duly elected if

(a) in fact the petitioner or such other candidate received a majority of valid votes; or

(b) but for the votes obtained by the returned candidate by the corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes.

Therefore, the first ingredient for declaring the election- petitioner or other candidate to have been duly elected depends upon error for various reasons in counting of valid votes and if it is found that in fact the petitioner or such other candidate received a majority of valid votes, he is to be declared elected.

Second ingredient provides for establishing that the votes obtained by the returned candidate were obtained by corrupt practices and but for such votes the petitioner or such other candidate would have obtained a majority of valid votes. Say as in the present case, the difference between the elected candidate and the election petitioner is of 10327 votes and if it is established that elected candidate obtained more than 10327 votes by corrupt practices then petitioner or such other candidate who has obtained majority of valid votes could be declared as elected.

However, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected.

The learned counsel for the parties referred to various decisions rendered by this Court and we would refer them in chronological order. The Constitution Bench of this Court in Konappa Rudrappa Nadgouda v. Vishwanath Reddy and another [(1969) 2 SCR 90] dealt with the case where one Vishwanath Reddy was declared elected to Mysore Legislative Assembly and that election was challenged by Nadgouda who was a contesting candidate on the ground that Reddy was disqualified from standing as a candidate for election. This Court by order dated 19th July, 1968 held that election of Reddy was void and that votes cast in his favour be treated as thrown away. The Court held "as there was no other contesting candidate, we declare the appellant (election petitioner) as elected to the seat from the Yadgiri constituency." That order was challenged by filing a review application which was granted and question whether it was open to the Court on finding recorded about disqualification of Reddy to declare Nadgouda as duly elected to the Mysore Legislative Assembly was dealt with and decided. The Court referred to earlier decision in Keshav Laxman Borkar v. Dr. Devrao Laxman Anande [(1960) 1 SCR 902], wherein it was held that a candidate whose nomination paper is accepted after scrutiny, is a validly nominated candidate "at least for the purpose of receiving votes at the election", and that the candidate must be treated as a person for whom votes could be given. The Court on that view held that where there are only two candidates for a seat and the election of the candidate declared elected is set aside on the ground that he was disqualified, the defeated candidate cannot be declared elected, and there must be a fresh election. In the opinion of the Court the votes cast in favour of the disqualified candidate cannot be said to be thrown away unless there is a "special pleading" that certain voters had cast their votes with the knowledge or notice that the candidate for whom they had voted was not eligible for election, and they had deliberately thrown away their votes in favour of the disqualified person; in the absence of such a plea it cannot be said that the votes cast in favour of a person who was by law disquaslified from being nominated, but who was in fact nominated, were thrown away. In the opinion of the Court a defeated candidate out of the two who contested the election may be declared elected under section 84 read with section 101 of the Act, if he proves that the voters had notice of the disqualification of the successful candidate.

The correctness of the said view was challenged before the Constitution Bench. The Court considered various English decisions cited at the bar and observed that the cases decided by the Courts in the United Kingdom appear to have proceeded upon some general rule of election law that the votes cast in favour of a person who is found disqualified for election may be regarded as thrown away only if the voters had notice before the poll of the disqualification of the candidate. Thereafter, the Court pertinently observedbut in our judgment the rule which has prevailed in the British Courts for a long time has no application in our country. The rule enunciated in U.K. has only the merit of antiquity; the rule cannot be extended to the trial of disputes under our election law, for it is not consistent with our statute law, and in any case the conditions prevailing in our country do not justify the application of that rule. The Court also considered Section 53 of the Act and held that it renders a poll necessary only if there are more candidates contesting the election than the number of seats contested and if the number of candidates validly nominated is equal to the seats to be filled, no poll is necessary and where by an erroneous order of the returning officer poll is held which, but for that order, was not necessary, the Court would be justified in declaring those contesting candidates elected, who, but for the order, would have been declared elected.

Thereafter, the Court observed thus "When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate."

The Court also considered Section 101 and held as under "....The votes obtained by corrupt practice by the returned candidate, proved to be guilty of corrupt practice, are expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate, and no fresh poll is necessary. The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of the filing of the nomination paper."

In Thiru John and Another v. Returning Officer and Others [1977 (3) SCR 538], the Court dealt with the biennial election to the Rajya Sabha from the State of Tamil Nadu where the voting pattern is single-transferable vote wherein the elected candidate Shri John was found by the Court to be statutorily disqualified for election. The Court considered the question whether the votes secured by such candidate be regarded as 'thrown away' and in consequence the next candidate be declared elected? In that context the Court observed: -

"Again, the answer to this question, in our opinion, must be in the negative. It is nobody's case that the electors who voted for Shri John, had at the time of election, knowledge or notice of the statutory disqualification of this candidate. On the contrary, they must have been under the impression that Shri John was a candidate whose nomination had been validly accepted by the returning officer. Had the electors notice of Shri John's disqualification, how many of them would have voted for him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and unpredictability."

The Court also referred to the following observations made by Hidayatullah, C.J. speaking for the Court in R.M. Seshadri v. G.Vasantha Pai [1969 (1) SCC 27] rejecting similar contention:-

"This (question) will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practice to the polling booths, the result of the election had been materially affected. In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, those candidates would have won. We cannot order a recount because those voters were not free from complicity. It would be speculating to decide how many of the voters were brought to the polling booths in car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated."

And, thereafter the Court held as under: -

"The position in the instant case is no better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not qualified to contest the election. In any case, Shri Subramanyan was neither the sole continuing candidate, nor had he secured the requisite quota of votes. He cannot therefore, be declared elected:"

The Court also considered the dictum in the case of Viswanath (supra) and observed that the ratio decidendi of said case is applicable only where (a) there are two contesting candidates and one of them is disqualified; and (b) the election is on the basis of single non- transferable vote.

Again in Lata Devi (Mali) v. Haru Rajwar [(1989) 4 SCC 773], this Court dealt with the same question and observed as under: -

".It is to be noted that in an election petition what is called in question is the election and what is claimed is that the election of all or any of the returned candidate is void, with or without a further declaration that the election petitioner himself or any other candidate had been duly elected. Declaring the election of the returned candidate void does not, by itself, entitle the election petitioner or any other candidate to be declared elected."

Learned counsel for the appellant lastly referred to the decision in D.K. Sharma v. Ram Sharan Yadav and Others [(1993) Supp 2 SCC 117]. In that case, the High Court referred to the decision in Konappa Rudrappa Nadgouda (supra) and held that on the basis of the oral evidence, it was not possible to hold that the voters who cast their votes in favour of the elected candidate did so after having noticed about the disqualification and knowing that their votes would be wasted and therefore, the second prayer of the election petitioner to declare him as duly elected after throwing away the votes of elected candidate, was not allowed. This Court did not find any infirmity in the said reasoning and, therefore, dismissed the appeal.

In view of the aforesaid settled legal position, in our view, the impugned order passed by the High Court declaring the election petitioner as elected on the ground that the votes cast in favour of elected candidate (appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Konappa's case that some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as 'thrown away' only if the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been voting pattern. Therefore, order passed by the High Court declaring the election petitioner Dr. Vijay Kumar Khandre as elected requires to be set aside.

Re: Question No.2.

Whether Contract between the Government and Appellant was subsisting on the date of scrutiny of nomination papers?

Finding given by the High Court:

On this question, we would first refer to the finding given by the High Court. The learned Judge held that out of seven contracts between appellant and the State Government, six contracts were terminated. But from the evidence on record, he held that the work of effective improvement and asphalting of Halburga-Bawgi-Kamtana road was continued to be carried out by Prakash Khandre even after the purported closure of contract, that is, subsequent to the writing of the letters and, therefore, as a matter of fact there was subsistence of contract between him and PWD. For this purpose, the learned Judge relied upon Ex.118 wherein the name of the contractor appeared to be Mr. Prakash Khandre and the likely date of completion was shown as December 1999. He has also placed reliance upon Ex. 105 which is a measurement book pertaining to Halbarga Bawgi works and held that if these works were carried out by Mallikarjun Khandre after 1.9.99, the entries under various columns could not have born the details of the contract as entered into by Prakash Khandre and the name of the contractor would also have been mentioned as Mallikarjun Khandre. He held that except letters and agreements Ex. 71 and 72, there was nothing on record to show that the department closed the contract of Mr. Prakash Khandre. He further referred to the evidence of Mallikarjun Khandre and held that Earnest Money Deposit was not given by him to the authority. He, therefore, held that the department as well as Mallikarjun Khandre did not actually treat the work allotted to Mallikarjun Khandre as a fresh contract and there appeared to be mere substitution of Mallikarjun Khandre in place of Prakash Khandre. With regard to the rest of the contract works, he arrived at the conclusion that the contracts were not subsisting. He finally arrived at the conclusion that election of Mr. Prakash Khandre was void under Section 100(1)(a) of the Act as he was disqualified under section 9-A of the Act on the date of scrutiny of nomination papers, on the date of election and on the date of declaration of result and it was declared as such on that count.

SUBMISSIONS:

Learned senior counsel Mr. Ashok Desai for the appellant submitted that once the contract is terminated by writing various letters by the appellant and when such termination is accepted by the Department, it inevitably means that contract does not subsist. Further, the moment registration of the contractor is cancelled and no dues certificate is issued, it would mean that contracts were terminated. The Government cancelled registration of Prakash Khandre as Class-I contractor on 16.8.1999 and issued no dues certificate. It is his submission that appellant has unequivocally terminated the contracts and that is accepted by all witnesses from the Public Works Department examined by the election petitioner. Therefore, there was no reason for the learned Judge to hold that Halbarga-Bawagi contract works continued. It is his submission that prior to termination of the contract 95% of the work was over and 5% of the work remained to be completed but the appellant was required to terminate the contract as elections for the legislative assembly were preponed. For this purpose, he referred to the cost of the actual contract work as per the tender, which was for a sum of Rs.3,21,97,034/-. He pointed out that out of that he has completed the work of Rs.2,90,42,705/-. For the work done by him prior to termination of the contract, he had received Rs.2,31,52778/- and had recovered remaining amount by instalments in the months of September/October/November and December, but that does not mean that appellant has carried out further contract work. He pointed out that whatever amount he had received after termination of the contract was for the work done by him prior to termination of the contract.

Learned senior counsel Mr. Shanti Bhushan appearing for the election petitioner submitted that the finding of the High Court that the contracts between the appellant and the State Government were subsisting is based upon appreciation of evidence and the said appreciation cannot be said to be in any way erroneous. It is his contention that contracts were not terminated and the appellant continued the contract work through his brother as benamidar. He submitted that from the evidence on record, it is proved that the contracts were subsisting. It is his further contention that mere cancellation of registration would not be sufficient to arrive at the conclusion that contract was terminated. He heavily relied upon certain Exhibits and submitted that there was tampering of evidence by the Department in favour of the appellant. It is his say that transfer of work in favour of Mallikarjun Khandre was as such benami.

Statutory Provision:

Before dealing with the facts, we would refer to relevant statutory provision. Under the Act, disqualification on the ground of subsistence of contract was first provided under Section 7(d) which reads as under "7. A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Counsel of a State

(d) if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share of interest in a contract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by the appropriate Government."

Thereafter it was amended by Act 58 of 1958 which read thus:-

"7. A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.

(d) if there subsists a contract entered into in the course of his trade or business by him with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government."

The aforesaid section was replaced by Section 9A by Act 47 of 1966 which came into force from 14th December 1966. It reads thus: -

"9A. Disqualification for Government contracts, etc.A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government.

Explanation.For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part."

The objects and reasons for substituting Section 7(d) by Section 9A are as under:

"Apart from the grouping of the sections effected by clause 20, some changes have also been made in the relevant provisions. In the new section 9-A, an Explanation has been added to make it clear that a contract with the Government shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part. This change has become necessary in order to do away with the disqualification that attaches to a person for being chosen as or for being a member of Parliament or State Legislature even after he has fully performed his part of the contract, since it would hardly be justifiable to retain such a disqualification provision in a modern welfare State when State activities extend almost over every domain of the citizen's affairs where very many persons, in one way or the other, have contractual relationship with the Government. That being the case, an unduly strict view about Government contract in the present day might lead to the disqualification of a large number of citizens many of whom may prove to be able and capable members of Parliament or State Legislatures. It would be of interest to note in this connection that in the United Kingdom, any disqualification arising out of any contract with the Crown has been done away with by the House of Commons Disqualifications Act,1957."

From the afore-quoted objects and reasons of substituting Section 9-A, it is clear that unduly strict view about the Government contract in the present day is not required to be taken and the change became necessary in order to do away with the disqualification that attach to a person for being chosen as or for being member of the Parliament or State Legislature even after he has fully performed his part of the contract.

Further, initially section 7(d) was very wide. A person having any share or interest in contract or such person having interest by any person in trust for him or for his benefit or on his own account was disqualified to contest election. This disqualification was narrowed down in 1958. Thereafter in 1966, Section 9-A was substituted, which provides that the person shall be disqualified

(a) if and for so long as there subsists a contract by him in course of his trade or business;

(b) for the supply of goods to; or

(c) for the execution of any work undertaken by him.

Explanation further provides that where the contract has been fully performed by the person by whom it has been entered into the contract shall be deemed not to subsist by reason only of the fact that Government has not performed its part of the contract either wholly or in part. This explanation is added to clarify that mere non performance on the part of the Government, say non payment of money would not be deemed to mean that contract subsists even though the contract has been fully performed by such person.

In Ranjeet Singh v. Harmohinder Singh Pradhan [(1999) 4 SCC 517] this Court (in para 7) observed thus: "Section 9-A is a statutory provision which imposes a disqualification on a citizen. It would, therefore, be unreasonable to take a general or broad view, ignoring the essentials of the section and the intention of the legislature. Purposive interpretation is necessary. In Dewan Joynal Abedin v. Abdul Wazed [1988 Supp SCC 580] Section 9-A of the Act has been correctly interpreted in the following words:-

"An analysis of Section 9-A of the Act shows that only in two cases a person would be disqualified if he has entered into a contract with the appropriate Government in the course of his trade or business which is subsisting on the date of scrutiny of nomination. They are (i) when the contract is one for supply of goods to the appropriate Government and (ii) where the contract is for the execution of any works undertaken by that Government."

Correspondence for Termination of Contract: -

In the light of the aforesaid statutory provision, to find out whether contract was subsisting on the date of filing of nomination, we would first refer to the letters written by the appellant to the Department for terminating the contracts and the action taken by the Department on the basis of the said letters. Copy of letter dated 4.8.1999 (Ex.R-5) To The Executive Engineer PWD Bidar Division Bidar.

Sir, Sub: Regarding Finalisation of Works and Issue of No. Due Certificate and Cancellation of My Registration (Licence).

====== I am contesting for the forth-coming Assembly Election. Hence I request you kindly to finalise the works which are entrusted to me in your department even if the works are incomplete, as per rules. I also request you to issue me the No Due Certificate and cancel my registration of contractorship. Further I write to state that I am also managing a partner of M/s C. Saraswati & Sons, Engineer and Contractor, Bhalki. So now I want to retire from the partnership which may kindly be accepted.

Early action in the matter is requested and issue me the No Due Certificate immediately.

Thanking you sir, Yours faithfully, Sd/-

(Prakash Khandre)"

Copy of letter dated 6.8.1999 (Ex.P-55) To Chief Engineer Communication and Building Government of Karnataka Bangalore.

Sir, Sub: Termination of Contract with the Government in respect of various works which will be set-out herein below.

====== I am the Class-I contractor of the Government of Karnataka. I intend to contest the ensuing election for the Legislative Assembly. Hence I pray as hereunder:

1. As a contractor I have been entrusted the various works mentioned herein below:

(a) Improvements and Asphalting of Halburga-Bawgi- Kamtana in Bidar district completed 95% of the work. Balance 5% work not completed due to EIRL not approved by the Department.

(b) Improvement and Asphalting of Dhannara Pati to Chandapur KM 0/0 5/6 completed 30% of the work. Due to rains the work is stopped.

(c) Improvement and Asphalting of Mahagoan to Shulepeth Work started in the month of April 1999 25% of the work is completed due to rains the work is stopped.

(d) In KM 76 RBC Canal lining in KPCC Division Balki construction of the work not started. Due to rains the work is not started due to Election coming I am not ready to start the work.

(e) Bijapur to Athani Work completed Final bill to be submitted by Department.

(f) Sholapur Chitradurga NS 13 KM 237/0-256/0 work completed but final bill to be submitted by department.

(g) In Bijapur NH Division, the PR Work on Sholapur Chitradurga Road in KM 32/0-97/0 184/0 183/0 and KM 217/0 227/0 Work order received, tender agreement also completed Work to be done after rainy season.

In respect of the works referred to above I have completed the work substantially. In view of the rainy season and incessant rains in Bidar District, the aforesaid work could not progress so as to complete the work before August, 1999. I humbly state that I undertook the various works referred to above with an intention to complete them by end of November, 1999. As pointed out by me earlier I intended to contest the ensuing election for the Assembly Elections. In view of the pre-ponement of the election and for the reasons beyond my control, I could not complete the aforesaid work.

2. As you may be aware the Election Commission of India has issued the calendar of Events. The last date for submitting the nomination is 18.8.1999. For the reasons beyond my control, I would not complete those works and I will not be in a position to complete the aforesaid work on or before 18.8.1999. Right to contest the election is my fundamental right. I want to exercise that fundamental right by contesting the ensuing Assembly Election. In view of Sec.9A to the Representation of People Act, 1951, the existing contract between me and the Government is causing me undue hardship and is coming in the way of me contesting the ensuing assembly election. Having regard to various facts and circumstances I have decided to request you to terminate all the existing contracts subsist between me and the Government forthwith. Further, I request you to cancel my registration as Class-I contractor with the department thereby putting an end to any sort of subsisting contractual relationship between me and the Government. Further, there are several contractors in Bidar District who are ready and willing to undertake the said work and complete the same on the same rates and conditions which is given to me in the subsisting contract between me and the Government.

Therefore, I humbly request you to terminate all the existing contract between me and the Government in respect of various works referred to above and issue necessary certificate declaring that there is no subsisting relationship between me and the Government forthwith. I humbly request you to entrust the work to other Class-I Contractor of Bidar District who are ready and willing to undertake the work on the same rates, terms and conditions. It is needless to state the last date for filing nomination is 18.8.1999. Therefore, I humbly request you to take the decision at the earliest and allow me to exercise my fundamental right to contest the election in the ensuing assembly election of 1999 and oblige.

Thanking you, Yours faithfully, Sd/-

(Prakash Khandre)"

Copy of letter dated 6.8.1999 (Ex.P-39) To Chief Engineer Communication & Buildings (South) Bangalore.

Sub: Requesting to cancel registration of Class-I Contractor in the Karnataka Public Works Department-Reg.

Ref: Registration No.65 date: 5.4.1995.

Related to the above subject, I am willing to contest 1999 State Assembly Elections, I am a Registered Class-I Contractor of the Karnataka Public Works Department and now I am contesting in the forthcoming Election as a Candidate. Therefore, I pray you to cancel my registration. Thanking you, Yours faithfully, Sd/-

(Prakash Khandre)"

Copy of letter dated 6.8.1999 (Ex.P-61) GOVERNMENT OF KARNATAKA No.Lo.E: LEVI:99-2000: 1165.

OFFICE OF THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT BIDAR, BIDAR DIVISION.

Dated: 6.8.1999 To Superintending Engineer Public Works Department Gulbarga Circle Gulbarga.

Respected Sir, Subject: Regarding the issue of No Due Certificate to Sri Prakash Khandre, Class-I, Contractor Bhalki.

Ref.: (1) Letter of Sri Prakash Khandre dated 4.8.99. (2) Letter of Sri Prakash Khandre dated 4.8.99. (3) Letter of Sri Mallikarjun Khandre dated 4.8.99.

In respect to the above subject, Sri Prakash Khandre Class I Contractor, Bhalki in his letter Ref. No.1 has requested to close his all works as in the present stage which comes in this division and also requested to issue No Due Certificate and to cancel his Registration of Contractor and also sought permission to retire from the Firm namely "C. Saraswathi & Sons" because he is willing to contest the Forthcoming Assembly Elections as a Candidate.

In Ref. No.2, Sri Prakash Khande requested as in the First Letter to close all works entrusted to him and to transfer the incomplete works in the Sri Mallikarjun Khandre, Class-I Contractor. Contractor Licence of Mallikarjun Khandre is enclosed.

Hot Mix Plant, Paver and Road Roller and ready to do the incomplete works of Sri Prakash Khandre in the same rates quoted and on the same Tender clause of Sri Prakash Khandre and regarding to this he is ready to submit the Affidavit of the Court.

Present Tender Works in the name of Sri Prakash Khandre. Sl. No. Details of the Works. Progress Stage.

1. Impts. Halbarga Bawgi-Kamthana Road 90% of the work is (under NABARD Works) completed.

2. Halbarga Junior College Building Work is completed

3. Impts. Dhannura Pati to Chandapur Rd. Work is under Progress.

4. Dadgi to Muchlum (HKDB). Work is under Progress.

5. Bhalki to Humnabad Road. Work is completed

6. Bhalki to Neelanga road. Work is completed Therefore, the above matter is sent to kind attention and requesting to give directions. The matter is related to the coming election, hence the order and the directions are expected soon.

Yours faithfully, Sd/- 5.8.99 Executive Engineer PWD Division Bidar.

1. Copy submitted for the kind information of Chief Engineer.Communication and Buildings (North), Dharwad.

Copy of letter dated 7.8.1999 (Ex.P-40) No.CBS: 65:RCT:CSB:99 OFFICE OF THE CHIEF ENGINEER Communication & Buildings (South) Bangalore. Date 7.8.99 To

1. All the Chief Engineers (All Projects)

2. Chief Engineer, National Highways, Bangalore.

3. All the Superintending Engineers (All Projects).

4. Superintending Engineer, National Highway Circle, Dharwad.

5. All the Executive Engineers, PWD and Irrigation Departments.

6. Executive Engineer, Zilla Panchayat Engineering Division.

Respected Sir, Subject: Regarding the application of Sri Prakash Khandre, Class-I Contractor to Cancel his Registration of Class-I contractor, to contest the forthcoming Assembly elections.

Ref: Request letter of Sri Prakash Khandre, Class-I Contractor dated 6.8.1999.

Sri Prakash Khandre, Class-I Contractor, Bhalki, Bidar district has given a requisition to cancel his Registration of Class I Contractor because he is willing to contest the forthcoming assembly elections. His registration no. being CBS:65 Civil95 dated 5.4.95 (for the period of 1995-2000).

Therefore submit the details regarding the incompleted works and any dues to come to the Govt. This is a election matter hence give personal attention and send the reply in the next post. If any dues to come from contractor to Govt., send it within 16.8.99 to this office. If any reports showing the dues are sent after the above mentioned date are not considered and the concerned Executive Engineer and the Account Superintendent will be held responsible.

Yours faithfully, Sd/-

Chief Engineer Communication & Buildings (South) Bangalore.

Amshi:7899.

Copy of letter dated 9.8.1999 (Ex.P-68a) Government of Karnataka (Public Works Department) No./PWD/BDR/AC-1/99-2000/ OFFICE OF THE EXECUTIVE ENGINEER Bidar Divn., Bidar.

Dated:9.8.99.

To The Superintending Engineer PWD Gulbarga Circle Gulbarga.

Sir, Sub: Closing of PWD Works and issue of No Due Certificate-regarding.

Ref: 1. Application of Sri Prakash Khandre, PWD Contractor Bhalki dtd. 4.8.1999.

2. Chief Engineer, C&B (North Dharwar ltr. No.CBS/65 RCT/CSB/99 dtd.7.8.99.

Anent to the above it is to be stated that statement showing the works entrusted to Sri Prakash Khandre, PWD Class I, Contractor, Bhalki on tender basis is submitted herewith showing the details of estimated amount physical and financial progress and balance of the works.

The above works entrusted to the agency are in progress as the agency is capable to completing the work. The completion of work may take some more time. In the meanwhile, he has requested to close his works and issue no due certificates, as intends to contest for ensuing Assembly Election.

Further, Sri Mallikarjun Khandre, PWD Class I Contractor has given his consent letter dated 4.8.1999 with the copy of his Registration for Class I Contractor to execute the works and completion of the balance work at the rates quoted by Sri Prakash Khandre, Class-I Contractor and terms & conditions of the agreement and also to pay any Govt. dues outstanding against the above agency.

Therefore, it is requested to accord permission for closing the works entrusted to Sri Prakash Khandre, Contractor and to rescind the contract on his request. Sri Mallikarjun Khandre, PWD Class I Contractor has given his consent to execute the balance works at the agreed rates by Sri Prakash Khandre.

Therefore, in view of the above, as a special case, permission may also be given to entrust the balance works to Sri Mallikarjun Khandre, Contractor on Form No.PWG-65 i.e. piece work entrusted Agreement system at the agreed rates by Sri Prakash Khandre, in order to complete the work as scheduled. Thus there will be no loss to the Government.

Early orders are requested in the matter.

Yours faithfully, Sd/-

Exe. Engineer, PWD, Bidar Divn., Bidar.

1) Copy submitted to the Chief Engineer (C&B) North, Dharwad, alongwith the statement for favour of kind information and needful action in the matter.

Sd/-

Executive Engineer, PWD Bidar Divn., Bidar.

Copy of letter dated 11.8.1999 GOVT. OF KARNATAKA (PUBLIC WORKS DEPARTMENT) No.CE:Tha.Sa/4:99-2000/4908 OFFICE OF THE CHIEF ENGINEER Communication and Buildings (North) DHARWAD.

Dated: 11th August, 1999.

Chief Engineer Communication & Buildings (South) Bangalore Respected Sir, Sub: Regarding the application of Sri Prakash Khandre, Class-I Contractor to Cancel his Registration of Class I contractor, to contest the forthcoming Assembly elections.

Ref: (1) CE (C&B) South, Bangalore, letter no.CBS:65:RCT: CCB:99 dated 7.8.99.

(2) Letter No. AAGu : C-5: BeBaaKi :

PramanaPathra : 99-2000:2514:12, dated 10.8.99 of Superintending Engineer, PWD Gulbarga Circle, Gulbarga.

Sri Prakash Khandre, Class I Contractor, Bhalki is willing to contest the forthcoming Assembly Elections therefore requested to cancel his Contractor Registration. Superintending Engineer has submitted the details regarding this in his letter (Ref. No.2). Sri Prakash Khandre, Contractor has submitted the Affidavit along with the letter of Sri Mallikarjun Khandre, PWD, Class I Contractor regarding the completion of the incomplete work of Sri Prakash Khandre. Mallikarjun Khandre himself has submitted the affidavit to take over the works entrusted to Prakash Khandre in the old rates and stated to take full responsibility. Sri Prakash Khandre also submitted the affidavit stating that in case if Mallikarjun Khandre fails to complete the works, he will take responsibilities to get it completed. On the basis of the affidavit this proposal may be accepted.

Therefore as explained above, PWD, C&B (North) has no objection to cancel the Class I Contractor Registration of Sri Prakash Khandre.

Yours faithfully, Sd/-

Chief Engineer Comm. & Buildings (North) Dharwad.

Copy of letter dated 12.8.1999 (Ex.P27) Government of Karnataka (Irrigation Department) No.SEB:IPCC/AE-2/76Km.RBC/99-2000 Office of the Superintending Engineer, ID., IPC Circle, Bidar.

Dated:12.8.1999.

To The Executive Engineer, ID KPC Divn. No.2 Bhalki.

Sir, Sub: Providing & Fixing SS/CC Lining from Ch:75000 to 76000m in Km.76 of RBC of Karanja Project.

Ref: Chief Engineer, IPZ, Gulbarga Phonogram confirmation Ltr. No.CEG/IPZ/KR/TA-2/A-E-2/ Km.76/lining/RBC/99-2000/2202 dated 13.8.1999.

Please refer the above cited letter Originally addressed to this Office as well as your office you are hereby directed to close the contract of Sri Prakash Khandre duly observing Codal rules as per Tender clause as instructed by Chief Engineer forthwith.

Yours faithfully, Sd/-

Superintending Engineer, I.D., IPC Circle, Bidar.

Copy submitted to the Chief Engineer, ID, Irrigation Projects Zone, Gulbarga with reference to Central Office letter No.2202 dated 13.8.1999.

Copy of letter dated 16.8.1999 (Ex.P-53) No.CBS:66:RCO:CSB:99.

Office of the Chief Engineer Communication and Buildings (S) Bangalore, dated 16.8.1999.

MEMORANDUM Sub: Regarding cancellation of Class-I Contractor registration of Sri Prakash Khandre.

Ref: 1. The request of Sri Prakash Khandre dated 6.8.99.

2. The letter of Chief Engineer, Communication & Building (N) Dharwad vide No.CE:N:SS-1:99- 2000-4908 dtd.11.8.99.

3. Letter of Chief Engineer, Raichur Division vide No.ESH:TAS:REG:MIS99-2000 dated 13.8.1999.

PREAMBLE:

Sri Prakash Khandre, Class-I Contractor, Balki, Bidar district has submitted an application to this office on 6.8.1999 requesting for cancellation of his Class I Contractor Registration as he is willing to contest the ensuing Assembly Elections. In this connection letters were sent to all the Chief Engineers and the Executive Engineers to send reports pertaining to any dues or incomplete projects of Government from Sri Prakash Khandre, the contractor, requesting them to submit report before 16.8.1999 to this office. As per the reports received till date, there are no dues from Sri Prakash Khandre to the Government and the Chief Engineer and the Executive Engineer have recommended for cancellation of Class-I Registration as per the above references referred at No.(1) and (2). Based on the recommendations, the Registration of Sri Prakash Khandre, Class-I Contractor can be cancelled.

ORDER:

The Registration of Class-I Contractor of Sri Prakash Khandre, Bhalki Bidar district vide Ref. No.CBS:65:Civil:95 dated 6.4.95 is cancelled with immediate effect and it is also certified that there is no dues from Sri Prakash Khandre pertaining to any projects to the Government.

Sd/-

(B. SRINIVAS) Chief Engineer Communication and Buildings (South), Bangalore.

Copy of letter dated 29.8.1999 (Ex.P8) Government of Karnataka (P.W.D.) No.EE/PWD/BDR/TS.1/99-2000 Office of the Executive Engineer, PWD, Bidar Divn., Bidar.

Dated:29.8.1999.

To The Asst. Executive Engineer, PWD, Sub-Divn., Bhalki/Bidar.

Sub: Closing measurement of Prakash Khandre, Contractor Works-Reg.

Ref: CE/office letter No.CE/North/Dharwad/TS.4/99- 2000/4108 dt.11.8.99.

Sir, With reference to the above subject you are hereby directed that the registration of Prakash Khandre, Class-I Contractorship has cancelled, so the following works should be closed and closing measurements will be recorded and intimate to this office.

1. Impts. To Halbarge, Bowgi to Kemthane Road Km.0/0 to 34/40.

2. Impts. To Dhanurapati to Chandapur Km.4/0 to 9/50 in Bhalki Tq.

Yours faithfully, Sd/- Sd/- Received Executive Engineer, PWD, Bidar Divn., Bidar.

Copy to Sri Prakash Khandre, Class-I, PWD, Contractor, R/original Bhalki Tq. for information.

Sd/-

Executive Engineer, PWD, Bidar Divn., Bidar."

From the correspondence stated above, it can be held as under:-

1. On 4th, the appellant requested the Executive Engineer

(a) to finalise the works which were entrusted to him even if the works were incomplete as per the Rules.

(b) to issue 'No Dues Certificate' and

(c) to cancel his registration of contractorship.

2. On 6th August, he wrote similar letter to the Chief Engineer specifically requesting him to do the needful forthwith for termination of all existing contracts and to put an end to any sort of subsisting contractual relationship between him and the Government. Again, he reiterated to terminate all existing contracts and to issue necessary certificate declaring that there existed no subsisting relationship between him and the Government.

3. On the same date, he wrote letter to the Chief Engineer, Communication and Buildings (South) Bangalore to cancel his registration.

4. On 6th itself, the Chief Engineer wrote letter to the Superintending Engineer for taking necessary immediate action as prayed for by the appellant as the matter related to the coming election and the copy was also submitted to the Chief Engineer, Communication and Buildings (North) Dharwad.

5. On 7th August, the Chief Engineer, Communication and Buildings (South), wrote letters to all Chief Engineers (All Projects), Chief Engineer, National Highways, Bangalore, Superintending Engineers (All Projects), all Executive Engineers, PWD and Irrigation Departments, Executive Engineer, Zilla Panchayat Engineering Division for cancellation of Prakash Khandre's registration of Class I contractor as he was to contest the forthcoming assembly elections and to communicate any reports showing the dues, if any, with a specific statement. It was also stated that if any reports showing the dues are sent after 16th August, the concerned Executive Engineer and the Account Superintendent would be held responsible.

6. On 9th August, Executive Engineer, Bidar Division wrote letter to the Superintending Engineer, Gulbarga Circle that Prakash Khandre has requested to close his work and issue 'No due certificate' and certificate of cancellation of registration as he wanted to contest the ensuing assembly elections. Therefore, permission was sought for closing the works entrusted to Prakash Khandre and that Mallikarjun Khandre, Class-I contractor had given his consent to execute the work at the rate agreed by Prakash Khandre. Therefore, as a special case, permission was sought to entrust the balance work to Shri Mallikarjun Khandre as it would not cause any loss to the Government.

7. On 11th August, 1999, Chief Engineer, Communication and Buildings (North) Dharwad wrote letter to the Chief Engineer, Communication and Buildings (South) Bangalore stating that Prakash Khandre (Contractor) has submitted affidavit along with the letter of Sri. Mallikarjun Khandre that regarding completion of the incomplete work, Mallikarjun Khandre would complete the same and Prakash Khandre has also submitted affidavit stating that in case if Mallikarjun Khandre fails to complete the work, he will take responsibility to get it completed.

8. On 12th August, Superintending Engineer directed the Executive Engineer to close the contract of Shri Prakash Khandre as instructed by the Chief Engineer.

9. Finally on 16th August, Chief Engineer, issued a memorandum Ex.53 that registration of Prakash Khandre was cancelled with immediate effect and it was certified that there were no dues pertaining to any project to the Government. For this purpose, relevant correspondence is referred to in Ex.52.

10. On 29th August, the Executive Engineer, PWD, Bidar Divn., Bidar directed the Asstt. Executive Engineer, PWD, Sub-Divn., Bhalki/Bidar that as the registration of Prakash Khandre Class-I contractor is cancelled, the works of Halbarge-Bawgi to Kemthane Road and Dhanurapati to Chandapur in Bhalki Tq. should be closed and closing measurements of the work executed be recorded and the same may be intimated to the office.

This correspondence manifestly establishes that appellant terminated all his contracts with the State Government as he was to contest election and the same was accepted by the Department and the Chief Engineer issued 'No Dues Certificate' and also cancelled his registration as Class I Contractor.

ORAL EVIDENCE: -

To the same effect all witnesses of the Department examined by the Election-petitioner have deposed before the Court. This would be clear from the evidence discussed below.

Election Petitioner examined PW2 B. Mallikarjuna, who was the Chief Engineer, Irrigation Project. He was asked about the procedure for termination of subsisting contract and to that, he replied the authority who entered into the contract is also the authority for terminating the contract. He produced the entire file containing the correspondence regarding cancellation of contract which was marked as Ex.P9 and the file of Inspection Note Ex.P10. He carried out the inspection on 8.11.1999 on account of closure of the work by the appellant in order to issue further instructions to his subordinate officers to entrust the same work to some other contractor. He had called for explanation from the Superintending Engineer and the Executive Engineer regarding the work being carried out after the termination of the contract in favour of the appellant. He denied the suggestion that the work was being carried out by the appellant. He has produced letter dated 12.8.1999 sent by the Superintending Engineer in response to phonogram Ex.32. He has also stated that Executive Engineer had sought permission from him for entrustment of work to Mallikarjun Khandre but the permission was not granted. He has also denied the suggestion that he has manipulated the record in order to help the appellant. The learned Judge has noted that after the evidence was read over to the witness, he pointed out that when he made surprise inspection on 8.11.1999, he noted that Bed Concreeting had already been completed as stated in Ex.28 and his statement that the work was in progress was not correct.

Other witness PW8 N.L. Matry was working as Asstt. Executive Engineer at the relevant time. He stated that he had accompanied the Chief Engineer on 8th November, 1999 for surprise inspection of the piece work from 75.750 to 75.810 km. He was not in position to say who executed some portion of the work as observed by the Chief Engineer in his report. However, he definitely stated that it was false to suggest that the said work was carried out by Mr. Prakash Khandre and that he was suppressing the said fact.

The next witness PW4 Dinkar Rao, who was working as Superintending Engineer IPC Circle, Bidar at the relevant time between July, 1998 to 5th October, 1999, has stated that the appellant had given a representation to the Executive Engineer requesting to issue no dues certificate. It is his say that he had sought the opinion of the Government Pleader regarding premature termination of the contract and on receipt of the said opinion, the same was forwarded to the Chief Engineer.

Other witness is PW5 S.K. Desai, who was working as Executive Engineer, KPC Division No.2, Bhalki from 6.3.1999 to 8.8.2000. He was shown Ex.P22a letter dated 10.8.1999 given by the appellant to him to close the work entrusted to him and to issue a no dues certificate at the earliest. It is his say that he also received another letter from the appellant enclosing the necessary affidavit in prescribed proforma to close his tender work which was produced at Ex.P23. Both these exhibits were endorsed by him on 10.8.1999 and the necessary entries were made in inward and outward register maintained by their office. He has also produced letter dated 9.8.1999 written by him to the Chief Engineer, Zone South, Bangalore which is Ex.P24 along with the no dues certificate. 'No dues certificate' was given after getting clearance from account section. He has stated that it was false to suggest that appellant himself had executed the work and he was suppressing the truth from the Court. He admits that he has written letter dated 12.8.1999 (Ex.27) to the appellant informing that the tender for the work was closed. It is his say that even though the appellant requested to entrust remaining work to his brother Mallikarjun Khandre, the Central Office did not accede to his request.

PW7 Ashok Kumar Mogsheety was working as a Junior Engineer at the relevant time. He has stated that the last measurement in respect of the work entrusted to the appellant was taken on 10.8.1999 and it is his say that the entries of measurement book Ex.34 were in his handwriting. He stated that the measurement book was also signed by the Executive Engineer and that there was no further measurement of work pertaining to Sri Prakash Khandre.

Next witness PW9 K. Mallikarjunaiah who was working at the relevant time as the Chief Engineer, North Zone, PWD (C&B), Dharwad, has stated that letter dated 9.8.1999 sent by the Executive Engineer, PWD Bidar Division was subsequently brought to his notice on 11.8.1999. Pursuant to the said letter, he addressed letter dated 11.8.1999 Ex.P37 to Chief Engineer (C&B), South, Bangalore. It is his say that he permitted the transfer of work from appellant to his brother Sri Mallikarjun Khandre. It is his say that by Ex.P37, he had informed the Chief Engineer, (C&B), South, Bangalore stating that he has no objection for cancellation of the registration of the appellant. With regard to the transfer of contract work from one contractor to another, he specifically stated that he had verified the Codal Rules and that he was competent to grant the permission of transfer of work from one contractor to another under special circumstances. During 1994 before the general elections, the same procedure was adopted. In further cross-examination, he has stated that he had ordered the transfer of contract work after 16.8.1999. On 16.8.1999, the registration of contractorship of appellant was cancelled.

PW10 B. Srinivasa who was working as Engineer-in-Chief has stated that at the relevant time he was working as Chief Engineer PWD (C&B) South, Bangalore. It is his say that his office received a letter dated 6.8.1999 Ex.P39 requesting for cancellation of registration of appellant. Pursuant to that letter, he sought for sending No Dues Certificate from all the Chief Engineers, Superintending Engineers etc. as mentioned in his letter dated 7.8.1999 Ex.P40. On 16.8.1999 he passed the orders cancelling the registration of the appellant after obtaining necessary information from Chief Engineer and Superintending Engineers and others. He has denied the suggestion that the order of cancellation of registration was manipulated. It is his further say that as per the portion of Ex.52 (c), he passed the order Ex.P52(e) terminating all the contracts of the appellant. Ex.52 order was issued on 16.8.1999 to the appellant.

PW11 Basavraj Kukunda who was working as a Superintending Engineer has produced correspondence file of one inward and one outward registers for the month of August onwards which were Exhibited as Ex. P 56, Ex. P. 57 and Ex. P 58. He has stated that on the basis of information given by the Executive Engineer, Ex. P. 59, he had sent a letter dated 10th August, 1999 to the Chief Engineer recommending cancellation of the registration of the contract of appellant and to entrust the same work to his brother Mallikarjun Khandre. That letter is produced as Ex. P60. It is his say that during the 1994 elections pending work of a contesting candidate for the general elections was transferred in favour of another contractor and on the basis of the same analogy, the contract of the appellant was cancelled and the same was recommended to be transferred to his brother Mallikarjuna Khandre. He agreed to the suggestion that baring the precedence stated above, the Codal Rules of PWD do not authorise or empower him to transfer the work.

PW12 V.S. Pathange, Executive Engineer has admitted that after cancellation of the contract work in favour of the appellant the balance work was entrusted to his brother Sri Mallikarjun Khandre. He has also stated that contract comes to an end when the registration of the contract is cancelled. He has denied the suggestion that even though the contract was transferred in the name of Mallikarjun Khandre, the same has been carried out benami by the appellant. He admitted that he has entrusted the work to Mallikarjun Khandre on 1.9.1999 and has sent the original Ex. 71 and 72 in his office at Bidar and the entrustment of the work under the aforesaid Exhibits was on the direction of the higher authority. Such directions were given to him in writing which was Ex. P. 20. He has also produced agreement Form PWG 65. He denied the suggestion that work was done by Mallikarjun Khandre for the appellant. It is his say that in the month of September 1999, a different proforma was prescribed which was Ex.115 and because of the oversight he might have earlier stated the agency as Prakash Khandre for the months of October to December 1999.

PW16 Raj Kumar Wadde who was working as Jr. Engineer, Bhalki Sub-Division has stated that nobody has done the work of Halburga-Bawgi road during August, 1999. Regarding stopping of work by Prakash Khandre, he made entry in Ex.P103. Thereafter, further work which was carried out by Mallikarjun Khandre was also entered in Ex.P103. It is his say that writing of name of Prakash Khandre at Page no.56 Ex.P103 was a mistake and, therefore, the same was struck-off and in his place Mallikarjun Khandre's name was written. He further stated that from the month of September to December, 1999 no work was carried out on Halburga-Bawgi roads.

PW17 Chandrasekhar Patil who was working as Assistant Executive Engineer has also stated that he was inspecting the progress of work of Halburga-Bawgi road between 4th August, 1999 to 30th August, 1999 and during that period he had not seen any progress in the work. He had received the letter from the Executive Engineer on 29th August, 1999 to take the closing measurement of the said work. After taking the measurement of 30th August, 1999, he submitted it to the Divisional Office at Bidar.

From the aforesaid oral evidence, it is abundantly clear that contract of asphalting of Halburga-Bawgi Kamtana road was cancelled and the work was handed over to Mallikarjun Khandre. PW10 Engineer-in-Chief who was working as Chief Engineer, PWD, South Zone, Bangalore has specifically stated that registration and cancellation of contractors falling in Class-I and II is to be made by the Chief Engineer Communication and Building (South), Bangalore and the power to remove from approved list of the contractors is vested in him under Rule 12. After getting information from all offices, he issued no dues certificate and cancelled the registration of the appellant on 16th August, 1999. The contracts were terminated after obtaining the opinion of the Government Pleader regarding pre- mature termination of the contracts. PW2 Chief Engineer carried out inspection on 8.11.1999 because of the closure of the work by the appellant. He denied that work was carried out by Prakash Khandre after termination of the work. No dues certificate was also issued after getting clearance from all the departments including the accounts section. The last measurement with regard to the work executed by Prakash Khandre was taken on 10.8.1999, as stated by PW7 Ashok Kumar. PW9 Chief Engineer has also stated that he had permitted the transfer of work from appellant to his brother Mallikarjun Khandre after verifying Codal Rules and that he had ordered transfer of contract work after 16.8.1999. The work was entrusted to Mallikarjun Khandre on the recommendation of Superintending Engineering, PW11. It is also stated that contracts come to an end when the registration of contractorship is cancelled. PW12 (Executive Engineer) denied the suggestion that even though the contract was transferred in the name of Mallikarjun Khandre, the same was carried out benami by the appellant.

From the evidence and the correspondence produced between the appellant and the Department, it is crystal clear that the appellant terminated the subsisting contracts and the Department accepted it. Hence, contracts were brought to an end by the parties. Department also permitted the remaining works to be carried out by Mallikarjun Khandre. In this view of the matter, the finding given by the High Court that work of effective improvement and asphalting of Halburga- Bawgi Kamtana road continued and, therefore, contract was subsisting is erroneous.

The question whether the contracts were subsisting or not is always a question of fact to be determined from the evidence on record, still however, we would refer to the relevant case law cited at the bar. In S. Munishamappa v. B. Venkatarayappa and Others [(1981) 3 SCC 260], the Court considered letter written by a candidate who was elected wherein he stated that "I cannot contest the elections to Vidhan Sabha, therefore, I request you to immediately cancel the work licence registered under you in my name. I request you to finalise all works pending in my name and cancel my licence immediately." That was processed by the Department and it was endorsed "please, finalise the claims of the contractor for the above works". A further endorsement was made directing the bills of the contractor to be submitted immediately. The High Court arrived at the conclusion that on the relevant date the contract was subsisting and, therefore, he was disqualified for contesting the election in view of Section 9A of the Act. This Court considered the submission that contract can come to an end (1) by parties, (2) by express agreement, (3) under the doctrine of frustration and (4) by breach; and after considering the letter Ex.17, the Court held thus: - " The appellant makes it manifestly clear that he intended to contest the election and to enable him to do so he wanted to have the licence in his favour cancelled immediately and to have his bills settled. The said letter clearly proceeds on the basis that at that point of time there was no existing contract between him and the government and he was only asking for a settlement of his bills and for cancellation of the licence. The endorsements made on the said letter by the authorities also go to indicate that the said position is accepted by them and necessary directions for finalisation of the bills are given"

With regard to the breach of contract, the Court further observed as under: -

"Even if it be held that the appellant had committed a breach of the contract, the contract cannot be said to be subsisting thereafter. If the contract is discharged by breach on the part of the appellant, the entire contract necessarily goes and along with this the agreement, if there be any, with regard to the maintenance, must necessarily go, leaving the party aggrieved to take steps to recover damages for such breach. The contract, however, cannot be said be subsisting. The fact that the bills of the appellant were settled at a later date and that the security deposit was refunded later on, will not disqualify the appellant in view of the explanation to Section 9-A of the Act."

The Court negatived the contention that if any contractor is permitted to put an end to a contract by committing breaches thereof to enable him to contest the election, will frustrate the very purpose of Section 9-A of the Act by holding that whether a contract subsists or not, has to be determined in the light of the provisions of law relating to contract and the interpretation cannot be in any way different while considering the provisions contained in Section 9-A of the Representation of the People Act.

Similarly in Smt. Aslhing @ Lhingjanong v. L.S. John and Others [(1984) 1 SCC 205], the Court considered the letter written by the contractor to the concerned Executive Engineer stating that he was closing his contract, to be sufficient for holding that the contract was no longer subsisting as the contractor unilaterally put an end to the contract and informed the department concerned accordingly and he had also resigned from the contractor's list of PWD. The Court negatived the contention that unless the letter was accepted by the authority, the contract would continue and the contractor would suffer from disqualification by holding that acceptance of the letter by the authorities was unnecessary for putting an end to the contract although, the breach may give rise to a cause of action for damages.

Mr. Shanti Bhushan, learned senior counsel heavily relied upon the affidavit dated 9.8.1999 sworn by appellant Prakash Khandre. That affidavit was sent along with a letter written by Mallikarjun Khandre who was the substitute contractor for the appellant to the Executive Engineer stating that he was willing to execute all the balance works entrusted to Shri Prakash Khandre on his quoted rates as per agreement and to complete them in all respect. In the said letter, it was further stated that he was prepared to pay any dues outstanding against Shri Prakash Khandre. Along with letter there is an affidavit of Prakash Khandre stating that in view of the preponement of the assembly election, he could not complete the work and, therefore, he had submitted application to terminate subsisting contracts between him and the Government of Karnataka. For the remaining work, in his place, Sri Malikarjun Khandre Class-I Contractor has agreed to execute the same on the same rate, terms and conditions.

We would quote paragraph 7 of the said affidavit as heavy reliance is placed by the learned senior counsel for contending that it would establish that contract subsisted or there was novatio. "Para 7. I hereby declare in case Sri Mallikarjun Khandre Class-I Contractor, person fails to execute the work, I will take the full responsibilities of getting it completed on the same rate and terms and conditions."

Firstly, from the aforesaid affidavit, it can be stated that the appellant had terminated the contract and that there was no question of subsisting contract. Further, statement made in the affidavit only indicates that if Mallikarjun Khandre fails to execute the work, election petitioner will take the full responsibility of getting it completed on the same rate, terms and conditions. But the said statement would not mean that any new contract for getting the works to be carried out was executed between the appellant and the State Government.

Learned senior counsel also relied upon the decision in Konappa Rudrappa Nadgouda v. Vishwanath Reddy & Anr. (1969) 1 SCR 395] and submitted that in the present case also there is condition to repair the work for a period of one year even after completion of the contract work. It is his further submission that in view of the paragraph 7 of the affidavit, appellant agreed to take over the responsibility of completing the work if Mallikarjun Khandre failed to execute the same and, therefore, there was a fresh contract between the appellant and the Department. In the aforesaid case, the Court referred to Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others [(1954) SCR 817] wherein a contention was raised that no longer any contract for supply of goods was in existence but only an obligation arising under a guarantee clause subsisted and, therefore, it cannot be held that contract was subsisting. The Court negatived the said contention by holding thus:

"It was argued that assuming that to be the case, then there were no longer any contracts for the "supply of goods" in existence but only an obligation arising under the guarantee clause. We are unable to accept such a narrow construction. This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions, each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations apportioned between each term separately. But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a contract for the supply of goods. It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent as replacements."

The Court thereafter held that applying these observations in the context of construction of buildings and roads, it is obvious that if some part of the work is found defective and has to be re-done, the contract of execution as such is still to be fully performed. This term of contract is part of the contract of the execution because no execution can be said to be proper or complete till it is properly executed. In such circumstances, the Court held that the contract would subsist and, therefore, disqualification provided under Section 9-A would apply.

In our view, the aforesaid decision would have no bearing to the facts of the present case. That case dealt with a situation where contract work was over, but the time period as stipulated in the contract for carrying out the repairs was not over. Therefore, it cannot be said that the contract was fully performed and hence, it was subsisting. In the present case, there is termination of all contracts by the appellant. The Department accepted such termination and the contracts were brought to an end by both the parties. Therefore, there is no question of contract or any part thereof subsisting on the date of scrutiny of the nomination. This has been made clear in the first letter written by the appellant on 6th August, 1999 to the Chief Engineer by stating that his registration as Class I contractor with the Department be cancelled thereby putting an end to any sort of subsisting contractual relationship between him and the Government. Presuming that according to the terms of the contract if some part of the contract work is found to be defective or is not properly executed and the contractor was bound to perform the same during a period of one year after completion of the contract, then also as contracts stood terminated, said term of the contract of repairing for a period of one year of curing the defect would also not subsist.

Learned Senior Counsel Mr. Shanti Bhushan submitted that the contract work which was given to the brother of the appellant was, as a matter of fact, performed on behalf of the appellant by Mr. Mallikarjun, his brother and, therefore, the High Court rightly held that contract was subsisting on the date of scrutiny of the nomination paper. In our view, this submission is without any substance mainly because after termination of the contract, fresh contract is executed by Mallikarjun Khandre for carrying out remaining work. Further Section 7(d) as it stood prior to its amendment in 1958 inter alia provided if the work is carried out "by himself or for any person or body of persons in trust for him or for his benefit or on his account", then such person was disqualified and in such situation, the question of benamidar or carrying out on behalf of appellant might require some consideration. After substitution of Section 7(d) by Section 9A, there must be subsisting contract by the contesting candidate for execution of any works undertaken by him with the Government. The essential ingredient of the Section is that the contract for the execution of any works undertaken by the Government should be subsisting on the date of scrutiny of nomination. It is to be stated that because Mallikarjun Khandre is brother of the contractor, it cannot be said that he was acting as a benamidar as he himself was a registered Class-I contractor. Further, as stated above, the objects and reasons of Section 9-A provides that an unduly strict view about the government contract should not be taken as it might lead to disqualification of large number of citizens, many of whom may prove to be able or capable Members of Parliament or State Legislatures. Therefore, the amended Section 9-A uses the phrase that a person shall be disqualified 'so long as there subsists a contract'. Similarly, subsequent payment by the Government for the work done which was payable at the time of termination of contract would not mean that contract between the parties was subsisting and Explanation to Section 9-A has made the position clear.

Learned counsel further referred to Ex.105, which is a measurement book and submitted that in the months of September, October, November and December 1999 also, the name of contractor, Prakash Khandre continued and, therefore, it cannot be held that contract was terminated. In our view, as stated above, all contracts with the appellants stood terminated on 16th August, 1999. Contractor's registration was cancelled. No dues certificate was also given. Fresh contracts with the firm of brother of appellant, Mallikarjun Khandre were executed. Mallikarjun Khandre himself was a Class-I contractor. In these set of circumstances, it would be totally unreasonable and unjustifiable to refer to some errors committed by some officers as admitted by the witnesses, in mentioning the name of Prakash Khandre as contractor in the measurement book to arrive at the conclusion that contract between appellant and the Government was subsisting. Further, as per letter dated 29.8.1999, the Executive Engineer directed the Assistant Executive Engineer that the closing measurement of the work executed be recorded and the same may be intimated to the office. The work included Halbarga-Bowgi road to Kamthane road.

Learned counsel next referred to the Codal Rule 167 and contended that contract work should not have been given to Mallikarjun Khandre and the Department was required to follow the procedure prescribed thereunder. Codal Rule 167 reads as under: - "167. (1) Contracts for works estimated to cost Rs.10,000/- and over mentioned in sub-para 4 infra, should be prepared only on regular contract form No. PWG 65 and should be invited by public tenders.

(2) Sanctioned works falling under the following categories may be got executed on piece-work system at rates not exceeding the current minimum schedule of rates each case being however reported to government.

(a) Works for which there have been no response from any of the contracts to the Notification calling for tenders.

(b) Works for which only individual tenders are received and which cannot be accepted in view of the prohibitively high rates quoted which will not bear any comparison with the sanctioned estimate rates or the current schedule of rates. In the case of tendered contractors who stop away in the middle, action should be immediately taken to cancel their contract, strictly enforcing the penal clause of the contract, the balance of work being got done as above or as per terms of contract. In any case, either the same tendered contractor or his agents should not be given the balance work for execution."

In our view, the Election Petitioner could not challenge the acceptance or termination of contract and grant of contract to Mallikarjun by the Department by resorting to certain departmental procedure prescribed for grant of contract to other contractor. In any case, not following the procedure prescribed under the Rules would hardly be a ground for holding that the contract was subsisting. PW9, Chief Engineer, North Zone has specifically stated that he had verified the Codal Rules and that he was competent to grant permission of transfer of work from one contractor to another under special circumstances and that similar procedure was adopted before General Elections during 1994. Hence, presuming that he has wrongly interpreted Codal Rule 167, then also it cannot be held that contract between the appellant and the State Government was subsisting. In this view of the matter, in our view, further evidence led by the parties is not required to be dealt with or considered.

From the aforesaid discussion, it is apparent that there was no contract subsisting between the appellant and the State Government so as to apply the provisions of Section 9-A of the Act and to hold that appellant was disqualified to contest the elections. As stated above, the order passed by the High Court declaring Dr. Vijay Kumar Khandre-respondent No.1 as elected is, on the face of it, illegal.

In the result, Civil Appeal Nos. 2-3 of 2002 filed by Prakash Khandre are allowed, the impugned order passed by the High Court declaring election of Prakash Khandre, the returned candidate, as void and declaring Dr. Vijaykumar Khandre who had polled the next highest number of valid votes as elected from No.2 Bhalki Legislative Assembly constituency to the Eleventh Karnataka Legislative Assembly is quashed and set aside.

In view of the order passed above, Civil Appeal No.1455 of 2002 stands dismissed.

There shall be no order as to costs.

........J.

(M.B. SHAH) ........J.

(BISHESHWAR PRASAD SINGH) ........J.

(H.K. SEMA) May 9, 2002.

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