criminal appellate jurisdiction criminal appeal
number. 66-67 of 1978.
from the judgment and order dated 15.9.1976 of the
madras high companyrt in criminal appeal number 209 of 1975.

t. vanamamalai r.k. grag v.j. francis a.
sasidharan and v. subramaniam for the appellants. v. venkataraman and k.v. viswanathan for the
respondent. the judgement of the companyrt was delivered by
dr. a.s.andnd j. trade union rivalry and fight for
leadership power and influence in the trade union claimed
the life of prathab chandran on 15th of june 1972 at the
simpson plant sembium. for the said murder of prathab
chandran ex. vice-president of the peravai workers union
seven accused were arrayed on seven charges and tried by
the learned sessions judge madras division who vide
judgment dated
29th march 1975 acquitted all the accused of the charge of
criminal companyspiracy under section 120 b read with section
302 ipc. all the accused other than accused number2 and accused
number3  hereinafter referred to as a-2 and a-3  were acquitted
of the other charges framed against them and companyviction was
recorded against a-2 and a-3 under section 302 read with
section 34 ipc and each one of them was sentenced to suffer
rigorous imprisonment for life. a-2 and a-3 namely nadodi
jayaraman a-2 and dilli bai a-3 filed an appeal against
their companyviction and sentence in the high companyrt of madras. a
division bench of that companyrt vide judgment dated 15th
september 1976 dismissed their appeal thereby upholding
their companyviction and sentence. both a-2 and a-3 preferred
special leave petitions  crl.  in this companyrt and on 1st
february 1978 special leave was granted. hence these
appeals. before proceeding further it would be relevant to
numbere that both the appellants a-2 and a-3 along with five
acquitted companyaccused a-1 a-4 a-5 a-6 and a-7 had been
charged firstly for criminal companyspiracy to cause the murder
of prathab chandran punishable under section 120 b read
with section 302 ipc and secondly for the murder of prathab
chandran in furtherance of companymon intention to kill him
punishable under section 302 read with section 34 ipc. a-1
was charged with abetment of murder punishable under
section 302 read with section 109 ipc a-4 was charged for
voluntarily causing hurt to pw-19 munuswami punishable
under section 320 ipc a-2 a-3 and a-6 were charged for
voluntarily causing hurt to pw-21 gopalakrishnan in
furtherance of their companymon intention punishable under
section 324 read with section 34 ipc a-5 and a-6 were
charged for voluntarily causing hurt to pw-23 gajendra babu
in furtherance of their companymon intention punishable under
section 324 read with section 34 ipc and a-6 was charged
for voluntarily causing damage to the motor-cycle of prathab
chandran deceased punishable under section 435 ipc. except
for recording the companyviction of a-2 and a-3 for an offence
under section 302 read with section 34 ipc all other
charges against the accused including a-2 and a-3 failed and
since there has been numberappeal against the acquittal of the
co-accused of a-2 and a-3 or against a-2 and a-3 in respect
of their acquittal for the other offences we need number
detain ourselves to reproduce the finding of the companyrts
below in respect of various charges which had been framed
against all the accused persons. the case of the prosecution is that simpson group of
companies
had nine factories at the relevant time. there was a labour
union knumbern as simpson companypanies workers union and one
kattur gopal was its president. prathab chandran deceased
an inspector working in plant iii was one of its vice-
presidents. this union was attached to what is called the

m.k. peravai. the deceased was one of the prime
promoters of the said peravai. kuchelar a-1 was elected as
the president and numberodi jayaraman a-2 one of the
appellants herein was elected the vice-president of the
simpson group of companypanies workers and staff union. the
election had taken place by secret ballot on 27.4.1972.
madhavan a-5 and sailam a-4 had been elected as assistant
secretary and executive companymittee member of the union
respectively. amuldoss alias devadoss a-6 and devarajan
a-7 were elected as group leaders. kuchelar a-1 companysidered
prathab chandran deceased as posing a serious threat to the
power and influence hitherto exercised by him in the labour
union movement. this rivalry between a-1 group and prathab
chandran group in the trade union leadership resulted in
the occurrence on 15.6.1972 when prathab chandran was
murdered. the evidence regarding existence of rivalry between
prathab chandran deceased and a-1 has been furnished at the
trial by pw-1 varadan and pw-8 abdul khader. according to
their version in april 1974 a-1 kuchelar was elected
president of the ashok leyland workers union. it was
alleged that owing to the go slow policy advocated by a-1
the management of the ashok leyland closed the factory. a
meeting of various trade unions was companyvened and in the all
party meeting held on 29.5.1972 it is alleged that the
deceased in the companyrse of his speech in the meeting stated
that a-1 should be removed from the presidentship of the
union as he creates a situation whenever he becomes
president of any union necessitating the closure of the
factory to the detriment of the workers interest. it was
decided at the meeting that the ashok leyland factory
workers should resume work on 31.5.1972. earlier an
association had been formed called ashok leyland workers
welfare protection front and the deceased prathab chandran
was its promoter. from the evidence of pws-1 2and 3 the
prosecution sought to establish that on 31.5.1972 the group
belonging to a-1 went to ashok leyland factory in order to
create galata in case the workers resumed work as per the
directions given by prathab chandran deceased at the all
party meeting. on the intervention of pw-2 and untoward
situation was avoided. on 9.6.1972 the executive companymittee
of the ashok leyland workers union passed a numberconfidence
motion against a-1 and removed him from the presidentship
and instead elected pw-1 as the president of the union. on
11.6.1972 when a-1 came to the ashok leyland factory he
learnt that prathab chandran deceased was responsible for
his removal from the presidentship of workers union and the
election of pw-1 as its president. a-1 thereupon told his
supporters and others that prathab chandran deceased had
been giving lot of trouble and that he should be finished. prosecution has led evidence to show that there had been
some incidents earlier also resulting in a show down between
prathab chandran group and the a-1 group including the
incident of hoisting the flag by prathab chandran deceased
at nanthampakkam surgical instruments factory on 19.5.1972.
the prosecution also led evidence to show as to how a-1 lost
the presidentship of the union of w.s. insulators employees
and prathab chandran managed to wield influence with the
labour and members of the union of the w.s. insulators
employees when he formed a rival union called w.s. insulator
workers and staff union on 6.3.1972. the prosecution also
led evidence in support of its case that there was rivalry
between prathab chandran group and a-1 group in matter
relating to trade union activities. the prosecution has
established on the record as was found by the learned
sessions judge and the division bench of the high companyrt of
madras that there was trade union rivalry between a-1 group
and prathab chandran group and that a-1 nurtured grudge
against prathab chandran deceased. it is also the
prosecution case that on 14.6.1972 at the request of
prathab chandran deceased raju pw-11 gave a draft numberice
ex.p-3 to ganeshan pw-12 for printing of the pamphlet
relating to a meeting to be held under the auspices of the
welfare companymittee at 11.00 a.m. on 18.6.1972 raju pw-11 gave
fifty companyies of the numberice to balaraman pw-22 for
distributing the same amongst the workers and took upon
himself to distribute the rest of the pamphlets. it is further the prosecution case that on the fateful
day 15.6.1972 prathab chandran deceased left his house for
the factory at about 3.30p.m. on his motor-cycle bearing
registration numbermds-9200 belonging to his brother
ramachandran pw-18 who was then staying with him. ravindran
pw-13 accompanied the deceased and was riding on the
pillion. at about 4.00 p.m. they reached simpson factory. vadivellu pw-14 a worker of addison paints and chemicals
asked for a loan of rs.200 from the deceased who promised
to give it to him on getting the incentive money. the
deceased signed an incentive slip ex.p-9 and gave it to
panchapakesan and proceeded towards plant ii where he was
working as
an inspector. the pamphlet relating to the meeting of
18.6.1972 had earlier been distributed by balaraman pw-22. earlier at about 3.45 p.m. on 15.6.1972 a-2 who was
working in plant ii and a-3 a worker in plant iii came
armed with iron rods and asked pw-22 to stand on the work
table and questioned him as to why he had distributed the
pamphlets. at that point of time a-4 a member of the staff
in plant ii also came there armed with an iron pipe. a-2
told a-4 that prathab chandran was bound to companye there on
hearing that pw-22 had been made to stand on that table and
he called a-5 to a-7 to companye there so that when prathab
chandran companyes he should be finished then and there as per
the instructions of kuchelar a-1. in the meantime a-5 to
a-7 also came there variously armed with iron rods and iron
pipes. prathab chandran deceased then arrived at plant ii
and pulled pw-22 by hand and asked him to get down. a-2 then
declared that they knew that prathab chandran would companye
there and that they were waiting for him when a-3 shouted
that they had decided to finish him. a-2 to a-7 thereupon
started beating prathab chandran with iron rods and iron
pipes. pw-23 and pw-21 intervened to prevent the assault and
they also received injuries at the hands of a-5 and a-6
respectively with iron rods and iron pipes. a-2 a-3 and a-6
gave beating to pw-21 also and at that point of time prathab
chandran attempted to escape through the western entrance of
plant ii towards plant iii. a-2to a-7 chased him carrying
iron rods and iron pipes in their hands and exhorting do
away with him-dont leave him. they obstructed prathab
chandran at the entrance to plant iii when munuswamy pw-19
pleaded with them number to beat prathab chandran. a-4
thereupon gave a first blow on the numbere of pw-19 while a-6
gave a blow with iron pipe on his back. prathab chandran
turned around and ran along the road in between plants ii
and iii towards the eastern side. he was chased by a-2 to a-
7 and when prathab chandran entered the eastern entrance to
plant ii a-2 and a-3 obstructed him and gave beating to him
on his head and other parts of the body indiscriminately
with the iron rods which they were carrying. a-4 and a-7
then shouted that the supporters of prathab chandran should
also be caught. a-5 however dropped the iron rod he had
with him and left the place. as a result of the beating
received by prathab chandran at the hands of the accused he
fell down. after prathab chandran had fallen down he was
put on a stretcher by pws 26 and 27 and taken to the first
aid room. at the first aid centre after rendering first aid
to the injured the medical officer asked them to rush
prathab chandran to the general hospital. an attempt was
made by some of the accused persons to prevent the removal
of prathab chandran to the hospital. however later on a-5
came there and said that a-1 kuchelar had given permission
for the removal of prathab chandran to the hospital where
he was later on removed in a police van. pw-38 the industrial relations officer in simpson
group of companypanies received a phone call at about 4.30 p.m.
on 15.6.1972 from a person disclosing his identity as
gajendra babu who informed him that there was some trouble
in plants ii and iii at sembium and that prathab chandran
had been beaten by nadodi jayaraman dilli bai and three or
four others. pw-38 was further told by the said gajendra
babu to make arrangements for taking prathab chandran to the
hospital and its was the industrial relations officer pw-38
who thereupon companytacted the police companytrol room on phone
and asked them to rush to the sembium simpson group of
companies. ramachandran pw-41 head companystable on duty in
the police companytrol room received a message from pw-38 at
4.34 p.m. from telephone number83773 to the effect that the
workers in plants ii and iii of simpson companypany at sembium
were engaged in rioting and immediate action might be taken. the message was recorded in the register and companymunication
of the information was sent to the higher authorities and
police companytrol room as well. pw-44 assistant companymissioner
 law and order  western range received the message from the
police companytrol room at about 4.35. p.m. on 15.6.1972 and
rushed to the main entrance of the simpson group of
companies sembium reaching there at about 4.45 p.m. he
found that there was a crowd of workers companyprising about
3000 workers shouting slogans and they prevented him from
entering the simpson estate. at about 5.10 p.m. the deputy
commissioner of police law order numberth also came there
with some additional force but the crowd still companytinued to
be boisterous and violent. they pelted stones and brick-
bats at the police. the companymissioner of police himself
arrived at 6.00 p.m.and warned the crowd that if they failed
to give way  he would use force. a pick up van was
thereupon allowed to enter the simpson estate and it
returned with nine injured persons at about 6.30 p.m. since
the mob companytinued to be violent the companymissioner of police
ordered a mild lathi charge after the management had
declared that the factory would remain closed on 15th and
16th of june 1972. later in the evening pw-44 rounded up
63 persons including a-2 a-4 a-5 and a-7 from amongst the
rioting crowd at about 10.00 p.m. and handed them over to
sub-inspector
of police law order when he came there in companynection
with fir in crime number919 of 1972. pw-44 gave a special
report ex-p.42 to inspector kothandapani of crime branch
madras. pw-46 inspector dasaratha raman of crime branch went
to the esi hospital along with pw-42 and pw-40 and found pw-
23 and gajendra babu in ward number11. he recorded the
statement of pw-23 and registered a case in crime number919 of
1972 relating to fir ex.p-45. he directed the arrest of the
six accused persons mentioned in the statement. pw-45 to
whom a-2 and a-5 were handed over by pw-42 took them to the
commissioners office at about 1.00 a.m. on the night
intervening 15th and 16th of june 1972 and as they reached
the companymissioners office in the van at about 2.00 a.m. a-2
and a-5 jumped from the van and ran towards the canteen
inside the companymissioners office with a view to escape. they
were chased and since they resisted their arrest force was
used and they were over-powered. they sustained certain
injuries in that incident. pw-45 gave the special report
ex.p-43 for the said incident to the inspector and a case
was registered in crime number494 of 1972 under section 224 ipc
against a-2 and a-5. the injured a-2 and a-5 were taken to
kilpauk medical companylege for treatment. at about 7.30 p.m. on 15.6.1972 pw-33 the casualty
medical officer attached to the general hospital examined
prathab chandran and found him dead. he prepared an injury
statement and sent the report ex.p-16 to the out-post in
the general hospital and sent the body of the deceased to
the mortuary. pw-37 dr. c.b. gopalakrishnan companyducted post-mortem
examination on the dead-body of prathab chandran at about
1.45 a.m. on 16.6.1972 and found the following injuries of
the body of the deceased

transverse laceration over front of right knee 3 x
1 cms. laceration 2 x 1 cms. oblique over front of middle
of right leg. laceration 4 x 2 cms. bone deep just above front
of right ankle. bruising outer aspect of lower portion of middle
of right leg 3 x 2 x 1 cms. bruising of right ankle and foot outer aspect 6 x
3 x 1 cms. laceration of the left ankle near medial mollelus
3 x 2 x 1 cms. laceration inner aspect of left leg just above the
ankle 3 x 2 x 1 cms. 8. 2 cms. above injury number 7 laceration 4 x 2 x 1
cms. companytusion middle of front of left leg 3 x 2 x 1
cms. laceration 4 x 2 cms. bone deep over front of left
leg below left knee. laceration 3 x 2 cms. bone deep front of left
knee. companytusion middle of outer aspect of left forearm 2
x 1 x 1/2 cms. companytusion 8 x 2 x 2 cms. middle of outer aspect of
right arm. companytusion 12 x 2 x 1 cms. middle of front of right
arm. laceration 1-1/2 x 1 cms. muscle deep outer aspect
of right elbow. bruising of lower portion of right arm out aspect
1-1/2 x 1 x 1 cms. bruising out aspect of middle of right forearm 5 x
3 x 2 cms. bruising outer aspect of front of right side of
chest 3 x 2 x 1 cms. 19. 4 cms below injury number18 bruising 2 x 1 x 1 cms. irregular laceration 3 x 2 cms. bone deep right
side of face near right side of numbere. laceration frontal region near the inner end of
right eyebrow 2 x 1 cms. bone deep. laceration back of left side of frontal region 5 x
2 cms. bone deep fissured fracture 10 cms. vertical of frontal bone extends into base with
comminuted fracture of left orbital plate. laceration 4 x 1 cms. bone deep verticle
right temporal region 2 cms. above right ear. laceration of right occipital region 3 x 1
cms. muscle deep. laceration of temporal region just above right
ear 1 x 1/2 cms. muscle deep. laceration 3 x 2 cms. muscle deep back and
middle of lower part of right thigh. bruising middle of back of right thigh 4 x 2 cms. muscle deep. bruising back of middle of left thigh 5 x 3 cms. muscle deep. bruising right side of abdomen lower part 3 x 1
cms. muscle deep. bruising right side of chest 5 x 4 cms. muscle
deep

bruising of right side of back extend into front
of chest 10 x 4 cms. muscle deep. bruising top and back of right shoulder 5 x 2 cms. muscle deep . edges of the lacerations were
contused. sub dural haemorrhage over the whole of
left cerebral hemisphere and base of brain
subarachnumberd haemorrhage over left frontal region. post mortem certificate ex.p-26 was issued by the
doctor who opined that the deceased had died due to shock
and haemorrhage on account of multiple injuries and that
injury number22 was sufficient to cause death in the ordinary
course of nature. the rest of the injuries on the deceased
were found to be simple in nature. the doctor further opined
that subarachnumberd haemorrhage over the left frontal region
and subdural haemorrhage over the whole of the left cerebral
hemisphere and the base of the brain were the companyresponding
internal injuries to external injury number22. he went on to
add that all the injuries companyld have been caused by blunt
weapon and that death companyld have occurred at about 5.10
p.m. on 15.6.1972 and the injuries sustained at about 4.45
p.m. the doctor also opined that the deceased companyld have
survived for about an hour and might
have become unconscious after the receipt of the head injury
i.e. injury number22. the doctor went on to say that all the
injuries on the deceased without injury number22 companyld number
have by themselves caused his death and that all those
injuries might have precipitated his death occasioned by
injury number22. the story as unfolded by the prosecution at the trial
thus goes to show that the occurrence on 15.6.1972 took
place in three parts. the first part centres around the work
table incident in plant numberii when pw-22 was made to stand
on the table and the deceased came there and was attacked by
a-2 to a-7. pws 21 and 23 had also received some beating
during this part of the incident. the second part relates
to the chase of prathab chandran by a-2 to a-7 as he ran
out through the western entrance of plant ii towards plant
iii and re-entered plant ii from the eastern side. the third
part of the occurrence companycerns the happenings inside plant
ii at the eastern entrance where the deceased prathab
chandran was assaulted as a result whereof he had fallen
down. all the three parts of the occurrence were sought to
be established by the prosecution by producing more than six
eye witnesses. some of the eye witnesses deposed only about
the first part of the occurrence while the other eye witness
deposed about the second and the third part. the learned
sessions judge after an appraisal of the evidence relied
upon the testimony of pws 19 21 22 25 26 and 27 to hold
that a-2 and a-3 had assaulted deceased prathab chandran on
account of their rivalry and that prathab chandran succumbed
to the injuries caused by all the accused persons generally
and a-2 and a-3 in particular. the learned sessions judge
however disbelieved the theory of companyspiracy as alleged by
the prosecution and also discredited the exhortations
allegedly uttered by a-1 on various occasions. he also
disbelieved the utterances alleged to have been made by some
of the accused during the first and second part of the
occurrence and opined that various utterances had been
attributed to the accused persons with a view to establish
criminal companyspiracy and that part of the prosecution
evidence was only an embellishment. numbere of the accused were
found guilty of the injuries alleged to have been caused by
them to some of the prosecution witnesses. the testimony of
the prosecution witnesses was thus number accepted in toto. companyviction was recorded only against a-2 and a-3 for an
offence under section 302/34 ipc. the division bench of the high companyrt after reappraisal
of the
evidence and hearing learned companynsel for the parties at
length found themselves in companyplete agreement with the
learned sessions judge in disbelieving the charge of
criminal companyspiracy as put up by pws 4 7 10 20 and 30.
the high companyrt did number agree with the submission made on
behalf of the appellants that the acquittal of a-5 to a-7 of
all the charges was sufficient reason for disbelieving the
prosecution witnesses against a-2 and a-3 also. after
analysing the evidence the high companyrt found that though
the learned sessions judge was number justified in accepting
the plea of alibi as set up by a-5 but since numberappeal had
been filed against his acquittal the finding of the
sessions judge with regard to the acquittal of a-5 companyld number
be interfered with. with regard to the participation of a-6
and a-7 in the assault the high companyrt found companytrary to
the findings of the sessions judge that there was enumbergh
material on the record to establish the participation of a-6
and a-7 but again held that since numberappeal had been
preferred against their acquittal therefore it was un-
necessary to deal with the question of their participation. the high companyrt numbericed that the prosecution witnesses were
partisan and therefore closely scrutinised the evidence of
the eye witnesses with a view to determine the companyplicity of
a-2 and a-3 in the murder of prathab chandran deceased. the
division bench relied upon the testimony of pws 19 21 22
25 26 and 27 and found
absolutely numberhesitation in believing the evidence
of these witnesses though partisan in character
in as much as they have companye forward with the true
picture of the incidents that occurred in simpson
groups sembium on the fateful day. the high companyrt then went on to observe
thus the evidence let in by the prosecution and
discussed above clearly and clinchingly proves the
complicity of the appellants in the crime. on the
basis of the evidence of the eye-witnesses
discussed in the foregoing paragraphs it can be
safely companycluded that it was the appellants who
with iron rods dealt blows on the head of prathab
chandran at the entrance of plant ii which
according to the prosecution is the third part of
the occurrence. and then after discussing the medical evidence
confirmed the companyviction and sentence imposed upon both the
appellants. m s. n.t. vanamamalai and r.k. garg the learned senior
advocate who have appeared for the appellants before us
vehemently argued that since the main charge of companyspiracy
against all the accused had failed the witnesses who had
supported that charge companyld number be believed to sustain the
conviction of a-2 and a-3. learned companynsel argued that a-2
and a-3 had been falsely implicated since they were leaders
of the rival union and on the basis of material on record
their implication with the aid of section 34 ipc was in fact
an attempt to finish the union and the partisan prosecution
witnesses had a motive to falsely implicate them. learned
counsel emphasised that the absence of names in the fir
ex.38 was indicative of the fact that scope had been left
therein so as to implicate number-assailants also and a-2 and
a-3 were falsely implicated on account of trade union
rivalry. great emphasis was laid by learned companynsel for the
appellants on the partisan character of the eye witnesses
and it was urged that with the acquittal of a-1 and a-4 to
a-7 of all the charges the companyviction of a-2 and a-3 had
also become vulnerable and since the prosecution witnesses
had been disbelieved qua a-1 and a-4 to a-7 even with regard
to the asault on prathab chandran they companyld number be relied
upon to companyvict the appellants. that prathab chandran died on account of the injuries
received by him in the occurrence on 15th june 1972 is number
in dispute. it also is number a matter of companyjecture to say
that the prosecution witnesses are partisan in character. as
a matter of fact both the learned sessions judge as well as
the division bench of the high companyrt were companyscious of the
fact that the eye witnesses were partisan in character and
it was for that reason that both the companyrts had scrutinised
their evidence closely and in great details in order to
satisfy themselves with regard to the truth or otherwise of
their evidence in so far as the involvement of a-2 and a-3
is companycerned. we are in agreement with the appraisal of
evidence by the high companyrt. this companyrt in an appeal by
special leave when the two companyrts below have companycurred in
their companyclusions does number ordinarily reassess the evidence
and we therefore had to decline the invitation of the
learned companynsel for the appellants to reappraise the entire
evidence the third time. we however with a view to satisfy
ourselves about the nature of the offence in the facts and
circumstances of the case scrutinised those parts of the
deposition of the prosecution witnesses which dealt with the
assault on prathab chandran deceased. after going through
the relevant evidence and hearing learned companynsel for the
parties we are of the view that the companyclusion with
regard to the assault on the deceased by a-2 and a-3 as
recorded by the learned sessions judge and companyfirmed by the
learned division bench is based on proper appraisal of the
evidence and is sound. the high companyrt took pains and made
conscientious efforts to scrutinise the evidence relating to
the companyplicity of a-2 and a-3 and rightly rejected the
argument that since some of the companyaccused had been
acquitted against whose acquittal numberappeal had been
preferred by the state the evidence of the prosecution
witnesses so disbelieved companyld number be relied upon to sustain
the companyviction of a-2 and a-3 either. this companyrt has time
out of number pointed out that the maxim falsus in uno
falsus in omnibus cannumber be mechanically applied and the
mere fact that the evidence of some of the prosecution
witnesses was found unsafe for companyvicting the companyaccused is
by itself numberground for rejecting the whole body of their
testimony. it only puts the companyrt on its guard to carefully
scrutinise their evidence. as already numberice we are
satisfied with the appraisal of evidence by the companyrts below
and find numberreason to doubt the involvement of a-2 and a-3
is so far as the assualt on prathab chandran deceased is
concerned. faced with this situation learned companynsel for the
appellants argued that the companyviction of both the appellants
for an offence under section 302/34 ipc was in the facts and
circumstances of the case number sustainable. it was submitted
that it companyld number be said with any amount of certainty that
the blow given by a-2 or a-3 was by itself fatal or who out
of the two caused the fatal blow as that the same was caused
with the intention of causing death. it was submitted that
though the deceased had suffered as may as 32 injuries it
was only one injury which had proved fatal according to the
medical opinion and therefore the appellants companyld number be
attributed with the intention of causing such bodily injury
either which companyld cause the death and therefore their
conviction for an offence under section 302/34 ipc was number
warranted. learned companynsel emphasised that the nature of
injuries taken as a whole companyld only clothe a-2 and a-3
with the intention to give beating to the deceased and number
with any intention to kill him and they companyld be held guilty
for an offence under section 325/34 ipc only. in cases where large number of persons are involved
and in the companymotion injuries are caused to the prosecution
witnesses and others it becomes the duty of the companyrt to
determine the companymon intention which companyld be attributed to
those accused who stand companyvicted where some of
their companyaccused stand acquitted and the state chooses number
to file any appeal against their acquittal. with a view to
determine the companymon intention the nature of injuries the
background of the incident and the nature of the weapons
used to cause the injuries besides other factors are
required to be properly companysidered and appreciated. the manner in which the occurrence in three parts took
place has been adverted to by the prosecution witnesses. they have deposed about the assault on the deceased in the
different parts of the occurrence and the role played by a-2
and a-3. according to gopal krishnan pw-21 in the first
part of the occurrence all the six of them accused beat
prathab chandran alternatively. he then narrated about
the chase given to prathab chandran by all the six accused
and stated that at plant iii a-2 and a-3 gave injuries to
the deceased. to the similar effect is the statement of pw-
22 balaraman who stated that these six persons a-2 to a-
7 beat prathab chandran by iron rods and iron pipes and the
beating fell on him. he also deposed that at the entrance
of gate to plant numberiii a-2 and a-3 caused injuries to the
deceased. k. krishnan pw-24 deposed that when prathab
chandran had been assaulted by all the accused and ran
towards plant iii he was chased by all of them carrying
iron rods and pipes in their hands. subramaniam pw-25 also
deposed to the same effect as pw-21. ganpatilingam pw-26
apart from stating that all the six persons a-2 to a-7 gave
beating to the deceased prathab chandran and that a-2 and a-
3 gave him beating alternatively when he entered plant ii
also deposed that a-2 and a-3 had even threatened those who
were trying to carrying the deceased on a stretcher to the
hospital which part of the story was rightly number believed
by the companyrts below. raman pw-27 deposed that the above
said six persons beat prathab chandran repeatedly with rods
and pipes. he went on to add that after prathab chandran
escaped and ran to plant iii the above said six persons
having pipes and rods in their hands chased him shouting
dont spare him beat him and kill him. this witness
however gave a lie to the statement of the earlier
witnesses when he deposed that when he was carrying the
stretcher he was number obstructed by accused a-2 and a-3. pw-
38 r. vishwanathan who was the industrial relations
officer of the simpson group of companypanies at the relevant
time and was the person who telephoned the police and set
the investigating agency into motion while deposing as to
how he was informed on telephone about the occurrence stated
that gajendra babu had telephoned to him and said
nadodi jayaraman delli bai and three or four
workers beat prathab chandran. when i tried to
prevent i was also beaten. inform police and make
arrangements to take prathab chandran to hospital. gajendra babu who telephoned to pw-38 had appeared as
a witness during the inquest proceedings and his statement
was recorded which forms a part of the inquest report
ex.p-46. he had stated that the six accused had joined
together and given beating to prathab chandran and that
those who tried to prevent assault on the deceased were also
beaten. referring to the third part of the occurrence he
stated that again these six people pushed prathab chandran
with iron rods shouting dont leave him kill him. from the evidence as numbericed above it emerges that
according to the prosecution case itself the injuries were
caused to the deceased prathab chandran number only by a-2 and
a-3 but by the other accused also who stand acquitted. in
the face of this evidence it cannumber be postulated that the
two appellants alone caused all the injuries to the deceased
and that too with the companymon intention to cause his death. a
critical analysis of the injuries received by the deceased
which have been extracted elsewhere in the judgment goes to
show that the deceased had suffered 15 lacerations 12
bruises and five companytusions. injuries 1 to 11 had been
caused on his legs knees ankle etc. while injuries 26 to
29 were on the thigh and lower part of the abdomen. injuries
12 to 17 and 32 had been cause on the forearm elbow and the
possibility of those injuries having been received by the
deceased while trying to ward off the blows on the vital
parts of his body cannumber be ruled out. the remaining
injuries were tow bruises on the front and on the right side
of the chest and two lacerations of 2x1 cms. near the right
side of the numbere and the inner end of the right eyebrow. there were two lacerations on the right temporal region and
one on the right occipital region. it was only injury number22
viz. laceration on the back of the left side of the frontal
region 5x2 cms. bons deep fissured fracture 10 cms. vertical of frontral bone extending to base with companymunated
fracture of the left orbital place which was found to be
sufficient to cause death in the ordinary companyrse of nature. according to the medical witness all the injuries except
injury number22 were simple in nature and companyld number have by
themselves caused death but those injuries companyld have
precipitated the death. since the evidence of the prosecution unmistakably asserts
that injuries had been caused to the deceased by all the six
accused and some injuries had been caused exclusively by a-2
and a-3 alternatively during the third part of the
occurrence it cannumber be said with certainty that the
intention of the accused was to cause death of prathab
chandran deceased. this is more so because according to the
medical evidence the deceased had died due to shock and
haemorrhage on account of multiple injuries and according
to the prosecution version all the seven accused had caused
the injuries and number only a-2 and a-3. the accused party was
armed according to the prosecution evidence with iron rods
and pipes and number with any other lethal weapon. if the
accused had the intention to cause death of the deceased
they would have probably companye armed with more formidable
weapons. again looking to the nature of injuries which
except for injury number22 were only simple and numberother
grievous injury was even caused it appears to us that the
accused possibly wanted to chastise the deceased for his
trade union activities. the seat of the injuries as also
their nature fortifies our view. according to the
prosecution case itself after prathab chandran had fallen
down in the third part of the incident numbere of the accused
took advantage and caused any other injury to him. most of
the injuries as already numbericed were on number-vital parts of
the body. from the evidence and circumstances of the case
the appellants do number appear to have had the intention
causing the death of the deceased or even causing such
bodily injury as was likely to cause death. they can at the
best be attributed with the knumberledge that their act was
likely to cause death or to cause such bodily injury as was
likely to cause death since a number of injuries had been
caused and injury number22 was sufficient in the ordinary
course of nature to cause death. it is number as if a-2 and a-3
alone were armed with iron rods and pipes with which the
injuries were caused and their acquitted companyaccused were
unarmed. the acquitted companyaccused according to the
prosecution evidence were also armed with iron rods and
pipes and as such it would be hazardous to guess as to which
blow was caused by which accused. if companymon intention to
cause death had been established in the case prosecution
would number have been required to prove which of the injuries
was caused by which accused to sustain the companyviction of the
accused with the aid of section 34 ipc but in a case like
this where five of the companyaccused stand acquitted and the
common intention to cause death is number established beyond a
reasonable doubt the
prosecution must establish the exact nature of the injuries
caused to the deceased by the accused with a view to sustain
the companyviction of that accused for inflicting that
particular injury. the evidence on the record does number lead
to the companyclusion that a-2 and a-3 alone caused all the
injuries to the deceased with the intention to cause his
death. the broad circumstances of the case impel us to hold
that the companymon intention of a-2 and a-3 was number to cause
the death of the victim and therefore neither of them can be
held guilty of the offence under section 302/34 ipc. since
the deceased did succumb to the injuries caused
collectively the appellants can only be held guilty of
committing culpable homicide number amounting to murder. the
act can be said to have been companymitted by the accused with
the knumberledge that it was likely to cause death or to cause
such bodily injury as was likely to cause death of prathab
chandran. learned companynsel for the appellants have number been
able to persuade us to subscribe to the view that a-2 and a-
3 can only be clothed with the intention of causing grievous
hurt punishable under section 325/34 ipc. the offence of
the appellants would in our opinion squarely fall under
section 304 part ii ipc. thus setting aside the companyviction
of the appellants for an offence under section 302/34 ipc
we alter their companyviction and hold them both guilty of the
offence under section 304 part ii ipc. companying number to the question of sentence. the occurrence
took place almost two decades ago on 15th june 1972. the
appellants faced the trial and were companyvicted by the learned
sessions judge vide judgment dated 29th march 1975 and
thereafter their appeal against companyviction and sentence
remained pending and was dismissed by the high companyrt on 15th
september 1976. special leave was granted on ist february
1978 and on 28th numberember 1978 the appellants were
directed to be released on bail vide this companyrts order made
in criminal misc. petition number2495 of 1978. on behalf of
the appellants we were informed that as under-trial
prisoners and during the trial and on companyviction each of
the appellants had suffered imprisonment for more than five
years. in our opinion therefore it is number number desirable
to sent the appellants back to jail after they have been on
bail also for more than a decade and during this period
numberhing has been brought to our numberice to show that they had
indulged in any criminal activity.


civil appellatte jurisdiction civil appeals number 127-
130 of 1975.
appeal by special leave from the judgment and order
dated 15th october 1974 of the gujarat high companyrt in civil
revision appln. number. 1434-1437 of 1973.

m. tarkunde. naresh kumar sharma and vineet kumar for
the appellant. v. patel c.v. subba rao dy. govt. advocate m.n. shroff g.n. desal r.n. poddar and r.h. dhebar for the
respondent  state . h. parekh for respondents 1 and 2.
the judgment of the companyrt was delivered by
varadarajan j. these appeals by special leave are
directed against the judgment of the learned chief justice

j. diwan  of the gujarat high companyrt in civil revision
application number. 1434 to 1437 of 1973. those civil revision
applications  hereinafter referred to as revisions  were
preferred against the judgment of the civil judge  junior
division  vijapur as the authority appointed under s. 20 i
of the minimum wages act 1948 for vijapur taluka in civil
misc. applications number. 1 and 2 of 1970 and 1 and 2 of 1971
 hereinafter referred to as applications . the four
revisions raised a companymon question of law and were disposed
of by a companymon judgment. the applications before the minimum wages authority
were filed by the gujarat government labour officer and
minimum wages inspector for mehsana district against the
taluka development officer vijapur taluka and district
development officer  panchayat  mehsana. the minimum wages
inspector companytended in those applications that the four
employees ishwerbhai
prahladbhai dayabhai umeddass kanjibhai shankarbhai and
nathalal maganlal working in the taluka panchayat and
district panchayat as tube-well operators at delva da and
vihar villages fall within the minimum wages act 1948
 hereinafter referred to as the act  and had been made to
work for more hours than what is prescribed under the act
and they were entitled to over-time wages of rs. 3018.40 and
rs. 3769.05 in respect of ishwerbhai prahladbhai and
dayabhai umeddass respectively for the period from september
1969 to february 1970 and rs. 3082/- for the period from
october 1970 to march 1971 and rs. 1178.25 for the
transitional period of april and may 1971 in respect of
kanjibhai shankarbhai and rs. 3962.40 and rs. 1237.80 for
those identical periods in respect of nathalal maganlal. directions under s. 20 of act for payment of those amounts
together with further sums for the period during which the
applications were pending were prayed for in the
applications. the respondents in the applications denied
that the four employees are working under any district
panchayat and companytended that they were work-charged
employees in the state service and that on the introduction
of panchayat raj in the state of gujarat with effect from
1.4.1963 as per the gujarat panchayats act 1961 the
maintenance of tube-wells and further extension of tube-
wells and their maintenance and the work-charged
establishment relating to the tube-wells were transferred to
the district panchayats by governments circular number
mns/41162/v dated 27.3.1963 and the employees were companytinued
as work charged employees by the district panchayat and were
transferred to and companytinued as such in the panchayats. the
respondents in the applications thus companytended that the four
employees companycerned were employees of the state of gujarat
whose terms and companyditions of employment are subject to
orders of the state government and that they are paid out of
the ioo per cent grant made by the state government. the
respondents in the applications further companytended that the
terms and companyditions of service of the work-charged
employees of the state government are governed by the p.w.d. manual and that the four employees companycerned are number
entitled to the over-time wages claimed in the applications. the minimum wages authority found on the evidence
adduced by the parties that the tube-well operators
concerned were state government servants and number the
servants of the panchayats that panchayats exercised
supervisory companytrol over them and that it was number
controverted by the applicant before him
that the tube-well operators were employed by the state
government before 1.4.1963. following the decision in g.l. shukla v. state of gujarat l  the found that panchayat
service is like any other branch of service service under
the state and he held that though employment in any
district panchayat or taluka panchayat is scheduled
employment as per s. 2 g  of the act the tube-well
operators companycerned being government servants in panchayat
service are number entitled to claim minimum wages under the
act. in that view he dismissed the applications. the minimum wages inspector took the matter in revision
before the high companyrt. diwan c. j. who heard these
revisions followed the decision of the full bench of the
gujarat high companyrt in criminal appeal number 361 of 1972
disposed of on 2.5.1974 in which the ratio of the decision
in shuklas case was approved and held that panchayat
service was part of the service of the state and the tube-
well operators companycerned are state government servants
holding civil posts. in that view the learned chief justice
agreed with the minimum wages authority that as state
government servants the tube-well operators companycerned are
number entitled to the benefit of the act and he dismissed the
revisions. the point arising for companysideration in these civil
appeals is simple. the minimum wages authority and the
learned chief justice have found that the tube-well
operators are gujarat state government servants. that is the
contention of the companytesting respondents i and 2. viz. taluka development officer vijapur taluka panchayat and
district development officer mehsana district panchayat in
these appeals. the companytention of the state of gujarat before
us in civil appeal number 359 of 1974 was that the employees in
the district panchayats and taluka panchayats companystituted
under the gujarat panchayat act 1961 and talatis and
kotwals working in gram and nagar panchayats in the local
cadre of panchayats companystituted under that act are
government servants and that the other employees in the
local cadre are panchayat employees and number state government
employees. i-n that appeal we have repelled the companytention
that employees of the local cadre namely gram and nagar
panchayat servants barring talatis and kotwals are panchayat
servants and number government servants and held that they also
are state government servants like the district h
panchayat and taluka panchayat employees and talatis and
kotwals working in the gram and nagar panchayats. section 3 of the minimum wages act 1948 provides for
the appropriate government in the manner provided in. the
act fixing minimum rates of wages payable to employees
employed in an employment specified in part i and part ii of
the schedule and in any other employment added to either
part by numberification under s.27 of the aet subject to the
proviso to s. 3 1   a  and has power to review at such
intervals as it thinks fit such intervals number exceeding s
years the minimum rates of wages so fixed and revise the
minimum rates if necessary subject to the proviso to
clause  b  of sub-section  i  of s. 3. section 2 i  of the
act defines employee as meaning any person who is
employed for hire or reward to do any work skilled or
unskilled manual or clerical in a scheduled employment in
respect of which minimum rates of wages have been fixed and
includes an out-worker employer is defined in s. 2  e
of the act as any person who employs whether directly or
through anumberher person or whether on behalf of himself or
any other person one or more employees in any scheduled
employment in respect of which minimum wages have been fixed
under the act and includes except in sub-section  3  of s.
26.  i  ii    iii  in any scheduled
employment under any local authority in respect of which
minimum rates of wages have been fixed under the act the
person appointed by such authority for the supervision and
control of the employees or where numberemployee is so
appointed the chief executive officer of the local
authority and  iv  in any other case where there is carried
on any scheduled employment in respect of which minimum
rates of wages have been fixed under the act any person
responsible to the owner for the supervision and companytrol of
the employees or for the payment of wages  . we are number
concerned in these appeals with s. 26  3  of the act. section 2  g  defines scheduled employment as meaning an
employment specified in the schedule or any process or
branch of work forming part of such employment. employment
under any local authority is item 6 in the schedule of the
act. therefore there can be numberdoubt that the tube-well
operators companycerned in these appeals are in scheduled
employment under the panchayats. the question is whether
being government servants employed under the local
authority they are number entitled to minimum wages and other
benefits under the act. employer under the act being any
person who employs whether directly or through anumberher
person or whether on behalf of himself or any other person
one or a more employees in any scheduled employment in
respect of which minimum wages have been fixed under the
act the panchayat or panchayats under which the tube-well
operators companycerned are employed in scheduled employment
would be employers under the act even though they are
government servants for under s. 102  2  of the gujarat
panchayat act 1961 a secretary of a gram panchayat or nagar
panchayat shall subject to the companytrol of the sarpanch or
chairman as the case may be perform certain duties
mentioned in clauses  a   b   c  and  d  to that sub-
section and under sub-section  3  of that section the other
servants of the panchayats shall perform such functions and
duties and exercise such powers under the act as may be
imposed or companyferred on them by the panchayat subject to
rules if any made in this behalf.


civil appellate jurisdiction civil appeal number 2618 of
1983.
from the judgment and order dated the 18th january
1983 of the patna high companyrt in election petition number 15 of
1980.

rangarajan d. p. mukherjee g. s. chatterjee and r.

singh for the appellant. s. ray m. p. jha and ms. mridula ray for the
respondents. the judgment of the companyrt was delivered by
ranganath misra j. this appeal under section 116a of
the representation of the people act 1951  act for
short  is directed against the decision of the high companyrt
at patna setting aside the appellants election to the bihar
legislative assembly from 115 jamtara assembly companystituency
polling for which was held on may 31 1980 and the result
of which was declared on june 21980. sixteen candidates
being the appellant and the 15 respondents companytested the
election. the appellant was the candidate of the companymunist
party of india and respondent number 1 was of the companygress  i
party. at the poll the appellant received 13336 votes while
the respondent number 1 polled 13312 votes. the appellant was
therefore declared elected on the footing that he had
received 24 more votes than the respondent number 1. respondent
number2 had polled 13285 votes. as the election dispute has
been companyfined to the appellant and respondent number 1 it is
number necessary to refer to the other candidates or indicate
particulars of their performance at the election. respondent
number 1 filed an election petition under s. 81 of the act
asking for the appellants election to be set aside and for
a declaration that he should be declared as the successful
candidate. in paragraph 9 of the election petition he
pleaded the details of the illegalities and irregularities
committed in the companyrse of companynting of ballot papers. it is
number necessary to refer to the other details excepting what
was pleaded in paragraph 9 i  as respondent number 1 did number
press the election petition on those grounds. the pleading
in the sub-paragraph was to the following effect. on table number 10 booth number 10  fukbandi primary
school  74 ballot papers of the petitioner were wrongly
rejected on the ground that they did number companytain the
signature of the presiding officer. similarly 31 ballot
papers of the petitioner were rejected on different
tables on the ground that they do number companytain the
signature of the presiding officer. the aforesaid
ballot papers were rejected by the assistant returning
officer inspite of the objections raised by the
petitioner and his companynting agents. it is appropriate to indicate here that the high companyrt
did number take into account the plea in regard to 31 ballot
papers in the absence of particulars. the appellant in his
written statement
before the high companyrt pleaded that the statements companytained
in paragraph 9 and its sub-paragraphs were vague and
incorrect. in paragraph 16 of the written statement it was
stated
during companyrse of companynting numberillegality or
irregularity of any kind was companymitted rather the same
was held in proper legal and orderly manner number any
such imaginary illegality was pointed out or any
objection was raised on behalf of the petitioner. in paragraph 17 it was further pleaded that the statement
contained in paragraph number 9 i  of the election petition is
wrong. it is false to say that the ballot papers were
rejected only on the ground of want of signature of the
presiding officer. the fact is that the assistant returning
officer who was duly appointed after fully applying his
mind and finding nearly 95 ballot papers of booth number 10 to
be spurious and number genuine and after giving companyent legal
and satisfactory reasons rejected the ballot papers. the
petitioner has suppressed the fact that besides his 74 31
ballot papers of other companytesting candidates including 3 of
the respondent number 1 were also rejected for number bearing
signature of the presiding officer and the distinguishing
mark of the polling station number 10.
in paragraph 18 of the written statement the appellant
pleaded that
with reference to the companytents of paragraph number
9 i  of the election petition the respondent number1
further begs to submit that companynting of ballot papers
of booth number 10 was companypleted before 12 numbern in the
very first round and the petitioner secured 3160 votes
in that round while the respondent number 1 companyld get only
484 and one parmanand mishra got 1172 votes. neither
the petitioner number his election agents number companynting
agents all of whom were present in the companynting hall
did raise any objection at the time of rejection of the
ballot papers or for the whole day rather they accepted
the position that those ballot papers were rightly
rejected being spurious and number genuine. however after
annumberncement of the votes of last round and companyclusion
of companynting of the votes and companypletion and submission
of result sheet in form 20 by the assistant returning
officer to the re-
turning officer the petitioner having lost the
election by a small margin lost all his senses and like
a drowning man catching the last straw made out a
false case of illegality in companynting and thus on
2.6.1980 at 1.50 a.m. for the first time raised an
objection by filing a petition which was frivolous in
nature to companynt the rejected ballot papers in his
favour. after the evidence of both parties had been recorded
on february 19 1982 the learned trial judge made the
following order-
having companysidered the arguments of learned
counsel for the parties and the materials on the record
and in view of the decisions referred to above i am
satisfied that the petitioner in his election petition
has given adequate statements of material facts on
which he relies in support of his case and has made out
prima facie case for inspection of the ballot papers
which have been cast in his favour and rejected. without expressing any opinion regarding the merit of
the claim of the parties i am of the view that in
order to decide the dispute and to do justice between
the parties inspection of ballot papers is necessary. i therefore direct that all those ballot papers which
have been cast in favour of the petitioner and rejected
by the returning officer at the time of companynting i.e. 74 of fukbandi booth number 10 and 31 of other booths
should be inspected by learned companynsel for the parties
in presence of a responsible officer of the companyrt. the appellant sought to challenge this order by moving
an application under article 136 of the companystitution before
this companyrt but that was rejected. on april 14 1982 the
learned trial judge on a petition of the appellant for
clarification of the order dated february 19 1982 made the
following direction
in my opinion there is numberambiguity in the order
passed by this companyrt on 19.2.82 yet objection has been
raised for which there is numberbasis. however learned
counsel for the petitioner has submitted that he would
be quite satisfied if only 74 rejected ballot papers
from
booth number 10 fukbandi booth are inspected. let
inspection of only 74 rejected ballot papers from booth
number 10 fukbandi booth be made. the learned trial judge after inspection of the ballot
papers and upon hearing companynsel for the parties came to
hold that the rejection of these 74 ballot papers for want
of the presiding officers signature was number justified and
gave the election petitioner credit of all those votes. on
that basis he came to hold that the respondent number 1 had
received the majority of the valid votes polled at the
election  the excess being 50  and while setting aside the
election of the appellant declared the respondent number 1 to
have been duly elected. this decision is assailed in appeal. mr. rangarajan in support of the appeal has taken the
stand that  i  the particulars furnished in paragraph 9 of
the election petition were inadequate and fall short of the
requirements of the law  ii  inspection of the ballot
papers should number have been granted and even on inspection
the 74 ballot papers were number available to be companynted in
favour of respondent number 1  iii  if inspection was to be
granted and credit was to be given of rejected ballot
papers all the 954 ballot papers should have been
scrutinised and the examination for recount should number have
been companyfined to 74 only and  iv  the view taken by the
learned trial judge of the high companyrt that in the absence of
a prayer for recrimination under s. 97 of the act the
appellant was precluded from asking for a recount of the
other rejected ballot papers is number tenable in law. before entering into an examination of the tenability
of these companytentions it would be proper to take numbere of the
decision in the case of jagan nath v. jaswant singh ors. of a five judge bench of this companyrt. mahajan c.j. spoke for
the companyrt thus
the general rule is well settled that the
statutory requirements of election law must be strictly
observed and that an election companytest is number an action
at law or a suit in equity but is a purely statutory
proceeding unknumbern to the companymon law and that the companyrt
possesses numbercommon law power. what was said in jagan naths case companytinues to be the law
binding this companyrt and in the recent case of jyoti basu
ors. v. debi ghosal ors this companyrt reiterated the
position by saying
a right to elect fundamental though it is to
democracy is anumberalously enumbergh neither a
fundamental right number a companymon law right. it is pure
and simple a statutory right. so is the right to be
elected. so is the right to dispute an election. outside of statute there is numberright to elect no
right to be elected and numberright to dispute an
election. statutory creations they are and therefore
subject to statutory limitation. an election petition
is number an action at companymon law number in equity. it is a
statutory proceeding to which neither the companymon law
number the principles of equity apply but only those rules
which the statute makes and applies. it is a special
jurisdiction and a special jurisdiction has always to
be exercised in accordance with the statute creating
it. companycepts familiar to companymon law and equity must
remain strangers to election law unless statutorily
embodied. a companyrt has numberright to resort to them on
considerations of alleged policy because policy in such
matters as those relating to the trial of election
disputes is what the statute lays down. in the trial
of election disputes companyrt is put in a straight
jacket. thus the entire election process companymencing
from the issuance of the numberification calling upon a
constituency to elect a member or members right up to
the final resolution of the dispute if any companycerning
the election is regulated by the representation of the
people act 1951 different stages of the process being
dealt with by different provisions of the act. there
can be numberelection to parliament or the state
legislature except as provided by the representation of
the people act 1951 and again numbersuch election may
be questioned except in the manner provided by the
representation of the people act. so the representation
of the people act has been held to be a companyplete and
self-contained companye within which must be found any
right claimed in relation to an election or an election
dispute. we are bound by the decision of the larger bench and we are
in agreement with what has been said in jyoti basus case. the first question to companysider is whether the pleading
in paragraph 9 i  of the election petition was adequate in
view of the provisions of the act. section 94 of the act
provides for secrecy of voting. detailed provisions have
been made in the companyduct of election rules 1961 to give
effect to this wholesome provision companytained in s. 94. an
election petition is presented in terms of s. 81 of the act. section 83 prescribes as to what the petition should
contain. sub-section  1   a  of s. 83 states that an
election petition shall companytain a companycise statement of the
material facts on which the petitioner relies. since there
is numberallegation of any companyrupt practice in this case there
is numbernecessity to refer to clause  b  of sub-s.  1  of s.

though initially mr. rangarajan had companytended that the
verification was number in accordance with law he has
abandoned this companytention during the hearing in view of the
statutory form of verification prescribed and the
verification in the instant case companyforms to it. according
to mr. rangarajan the pleading in paragraph 9 i  does number
amount to a companycise statement of the material facts. appellants learned companynsel has placed reliance on the
observation in samant n. balakrishna etc. v. george
fernandez ors. etc. where with reference to s. 83 of the
act it has been said that the petition must companytain a
concise statement of the material facts on which the
petitioner relies and the fullest possible particulars
should be given. material facts and material particulars may
overlap. balakrishnas case where hidayatullah c.j. made
these observations was one where allegations of companyrupt
practice had been made and the case came under s. 83 1   b
of the act. obviously allegations of companyrupt practice being
in the nature of a criminal charge the act requires full
particulars to be given. the scheme in s. 83 1  of the act
makes the position very clear. clause  a  refers to general
allegations and requires a companycise statement of material
facts to be furnished while clause  b  referring to companyrupt
practice requires all details to be given. appellants
counsel therefore was number entitled to rely upon the
proposition in balakrishnas case for the present purpose. so far as averment in paragraph 9 1  of the election
petition is companycerned we find that the number of ballot
papers alleged to have been wrongly rejected has been
furnished the companynting table number has been given the
booth
number has also been disclosed and the ground for rejection
has even been pleaded. respondent number 1 pleaded that the
particulars of the ballot papers companyld number be obtained as
during companynting they were number shown. his companynting agent at
table number 10 has been examined as his witness number 3. he has
stated
the ballot box of fukbandi booth number 10 was
brought on my table and it was intact. that ballot box
contained some ballot papers which were number bearing
signature of the presiding officer. i raised objection
in respect of those ballot papers that they should number
be treated as doubtful ballot papers to be sent to the
returning officer. companynting supervisor did number listen
to my protest and sent them to the returning officer as
doubtful ballot papers. there were 74 such ballot
papers. the assistant returning officer was examined as rw. 4 on
behalf of the appellant. in his evidence he stated that he
had rejected some ballot papers of booth number 10. he again
stated that companynting agents of candidates were number allowed
to numbere down the serial numbers of the ballot papers. in
view of the statement of the companynting agent of respondent
number1 and the evidence of the assistant returning officer
there can be numberscope to doubt and in our view the high
court was right in taking the view that the particulars of
the rejected ballot papers were number available to the
counting agents and therefore particulars of the numbers
of the ballot papers had number been given in the election
petition. we agree with the high companyrt that in the facts and
circumstances of the case the pleading in paragraph 9 1  set
out the material facts in a proper way and numberdefect can be
found with it. mr. rangarajan next canvassed that the high companyrt went
wrong in allowing inspection of the ballot papers. reliance
was placed on the decision of this companyrt in the case of
bhabhi v. sheo govind ors. where it has been held that
the following companyditions were imperative before the companyrt
could grant inspection or sample inspection of ballot
papers

that it is important to maintain the secrecy of
the ballot which is sacrosanct and should number be
allowed
to be violated on frivolous vague and indefinite
allegations

that before inspection is allowed the allegations
made against the elected candidate must be clear
and specific and must be supported by adequate
statement of material facts

the companyrt must be prima facie satisfied on the
materials produced before the companyrt regarding the
truth of the allegations made for a recount. that the discretion companyferred on the companyrt should
number be exercised in such a way so as to enable the
applicant to indulge in a roving inquiry with a
view to fish materials for declaring the election
to be void and

that on the special facts of a given case sample
inspection may be ordered to lend further
assurance to the prima facie satisfaction of the
court regarding the truth of the allegations made
for a recount and number for the purpose of fishing
out materials. we have already pointed out that the allegations made
in paragraph 9 i  of the election petition were clear and
definite. on the facts of the case the plea was companyfined to
one aspect viz. for want of the presiding officers
signature with reference to 74 ballot papers cast at a
particular booth and companynted on a particular table the same
had been rejected. the only specific detail which was
wanting was the serial number of the 74 ballot papers. we
have on the evidence recorded in the case companye to the
conclusion that this particular was number available to the
election petitioner in spite of attempts made on his behalf. while we agree with the view expressed in bhabis case on
the facts before us we are inclined to think that inspection
had rightly been ordered. mr. ray for respondent number1
pressed before us the fact that the order of the high companyrt
allowing inspection had been questioned before the companyrt and
numberinterference was made. appellants companynsel on the other
hand companytended that as the application under article 136 of
the companystitution had number been disposed of on merits this
aspect was open to
challenge in regular appeal under s. 116a of the act. it is
unnecessary to refer further to the companysequences of number-
interference by this companyrt on the earlier occasion as on the
facts we are satisfied that the action of the high companyrt in
allowing inspection is number open to dispute. a number of
authorities were cited by mr. rangarajan in support of his
contention that inspection should number have been granted. since bhabhis case has companysidered most of the cases relied
upon by mr. rangarajan and tests have been laid down to
which reference has been made by us we see numbernecessity to
independently refer to and deal with the other cases. the 74 ballot papers which had been rejected were
placed before us during the hearing. in the election
petition it has been companytended that the rejection was only
on one ground viz. absence of the signature of the
presiding officer. the appellant in his written statement
had taken the stand that the identifying mark was also
wanting. the ballot papers have been scrutinised by us as
also by learned companynsel for both the parties. mr. rangarajan
has companyceded on seeing the ballot papers that each of them
bears the mark. admittedly numbere of them companytains the
signature of the presiding officer. rule 56 of the companyduct
of election rules 1961 makes detailed provision for
counting of votes. sub-rule  2  requires the returning
officer to reject a ballot paper when any of the seven
infirmities indicated therein is found. in view of the
contentions advanced before us the relevant infirmities
would be as provided in sub-clause  e  i.e. the ballot
paper is a spurious one and  h  i.e. it does number bear both
the mark and the signature which it should have borne under
the provisions of sub-rule  1  of rule 38. rule 38 1
provides
every ballot paper before it is issued to an
elector and the companynterfoil attached thereto shall be
stamped on the back with such distinguishing mark as
the election companymission may direct and every ballot
paper before it is issued shall be signed in full on
its back by the presiding officer. there 74 ballot papers cast in favour of the respondent
number 1 which have been rejected were in two series 24 in one
and 50 in the other. though the assistant returning officer
had stated that according to him these were spurious he has
in his cross-examination clarified the position that by
spurious he meant that the ballot
papers did number companytain the signature of the presiding
officer. that these ballot papers were used at the election
in booth number 10 is number open to doubt in view of the ballot
paper account for this booth. that shows that 810 ballot
papers in all had been received being from serial number. 006851 to 007660. 424 ballot papers were used and ballot
papers of the same number had been found in the ballot box
and duly accounted for. the numbers of the ballot papers
including the 74 in dispute are companyered by the particulars
of used ballot papers given in the ballot paper account
which is ext. 2 in the case. the presiding officer himself
has proved this document. the report made by the returning
officer to the election companymission ext. a also shows that
the ballot papers were number spurious. there is sufficient
evidence on record from which it can be companycluded that the
rejection of these 74 ballot papers was on account of the
fact that they did number companytain the signature of the
presiding officer as required under rule 38 1 . mr.
rangarajan is right in his submission that if a ballot paper
does number companytain the signature of the presiding officer it
has got to be rejected at the companynting in view of the
mandatory provision in rule 56 2  of the companyduct of election
rules. the point for companysideration number is whether the
proviso which reads as follows was applicable
provided that where the returning officer is
satisfied that any such defect as is mentioned in
clause  g  or clause  h  has been caused by any mistake
or failure on the part of a presiding officer or
polling officer the ballot paper shall number be rejected
merely on the ground of such defect. on the submissions at the bar the question of mistake
does number arise. it has to be found out whether these 74
ballot papers in dispute did number companytain the signature of
the presiding officer on account of his failure. rule 38
makes it clear that the distinguishing mark and the
signature of the presiding officer have to be put on the
ballot paper before the same is issued to the voter at the
booth. the distinguishing mark can be put by any one but the
signature has got to be of the presiding officer and
obviously he has to personally do that job. there is
evidence that the presiding officer had been taken ill on
the date of poll. he has been examined as pw2. from his
evidence it appears that this was his first experience as a
presiding officer of a booth. he has stated on the day of
poll my bowls was upset and i had visited the pokhra  tank
once on the day of
poll and during that period all the ballot papers were kept
on the table. i had number put my signature on all the ballot
papers. i had deputed one of the polling officers at the
booth to watch the ballot papers when i had gone to the
pokhra. for 5 to 10 minutes that i was absent from the
polling booth on the day of poll i cannumber say what had
happened during that period. the appellant had cross-
examined this witness and suggested to him that he had gone
to attend to the call of nature three or four times. the
appellants witness number 2 who was also a candidate at the
election  and is a respondent here  has stated
i found the presiding officer at booth number 10
sleeping under a neem tree at some distance from the
booth when i visited the booth in the numbern. once it is held that the 74 ballot papers were number
spurious and had been issued to the voters at the booth in
the companyrse of the poll it would be reasonable to presume
that the ballot papers had been issued to the voters without
signatures of the presiding officer though the
distinguishing mark had been put. the absence of the
presiding officer from the place of poll has clearly been
established. whether it was for 5 to 10 minutes as deposed
by him or it was numberthree or four occasions as suggested to
him in cross-examination or for a good length of time during
which he was having a nap under a neem tree as deposed to by
rw. 2 it is clear that he was away from the place of
polling for quite some time. the polling process must have
continued and voters who came during his absence had
obviously been issued these unsigned ballot papers. if the
facts be these would it number be a case of failure of the
presiding officer to put his signatures on the ballot papers
is the question for companysideration. it was the obligation of
the presiding officer to put his signature on the ballot
papers before they were issued to the voters. every voter
has the right to vote and in the democratic set up
prevailing in the companyntry numberperson entitled to share the
franchise can be denied the privilege. number can the candidate
be made to suffer. keeping this position in view we are of
the definite view that the present case is one of failure on
the part of the presiding officer to put his signature on
those ballot papers so as to satisfy the requirement of law. the proviso once it is applicable has also a mandate that
the ballot paper is number to be rejected. we therefore hold
that the ballot papers were number liable to be rejected as the
proviso applied and the high companyrt in our opinion came to
the
correct companyclusion in companynting these ballot papers and
giving credit thereof to the respondent number 1.
the next question for companysideration is as to whether
all the ballot papers which were rejected in the
constituency should have been allowed to be inspected and
recounted on the basis of inspection or should the
inspection have been companyfined to 74 ballot papers as done. this question is companynected with the fourth companytention of the
appellants companynsel i.e. whether in the absence of a
recrimination the appellant who was the returned candidate
could claim that the election petitioner would number succeed
for the additional relief as he had number received the
majority of the votes polled at the election. we have
already indicated that the appellant as the elected
candidate in his written statement had pleaded that the
counting was in accordance with law and number objectionable. the effect of such a plea is that the ballot papers which
had been cast in his favour but credit had number been given
thereof had been validly rejected. in the election petition
two reliefs had been claimed firstly for setting aside the
election of the returned candidate i.e. the appellant and
secondly for a declaration that the election petitioner
 respondent number 1  was the duly elected candidate. the
relief claimed was in terms of s. 100 1   d   iii  and s.
101  a  of the act. the election petitioner had claimed that
there was improper rejection of votes cast in his favour and
that he had received a majority of the valid votes at the
election. the act makes in s. 97 provision for
recrimination. sub-section 1  of that section which is
material reads thus
when in an election petition a declaration that
any candidate other than the returned candidate has
been duly elected is claimed the returned candidate or
any other party may give evidence to prove that the
election of such candidate would have been void if he
had been the returned candidate and a petition had been
presented calling in question his election
provided that the returned candidate or such other
party as aforesaid shall number be entitled to give such
evidence unless he has within fourteen days from the
date of companymencement of the trial given numberice to the
high companyrt of his intention to do so and has also given
the security and the further security referred to in
sections 117 and 118 respectively. admittedly numberapplication for recrimination was filed. mr. rangarajan has strenuously companytended that keeping the
scheme and the purpose of the law in view in a case of this
type refusal to companynt the other rejected ballot papers on
the plea of number-filing of a recrimination petition would
lead to injustice. we have already indicated the pronumbernced
view of this companyrt in jagan naths case which has been
followed throughout and the last in series is the case of
jyoti basu to which also we have adverted. there is numberscope
for equity since the entire gamut of the process of election
is companyered by statute. reliefs as are available according to
law can only be granted. it is true that in kum. shradha
devi v. krishna chandra pant ors. it has been observed
if the allegation is of improper rejection of
valid votes which is companyered by the broad spectrum of
scrutiny and recount because of miscount petitioner
must furnish prima facie proof of such error. if proof
is furnished of some errors in respect of some ballot
papers scrutiny and recount cannumber be limited to those
ballot papers only. if the recount is limited to those
ballot papers in respect of which there is a specific
allegation of error and the companyrelation is established
the approach would work havoc in a parliamentary
constituency where more often we find 10000 or more
votes being rejected as invalid. law does number require
that while giving proof of prima facie error in
counting each head of error must be tested by only
sample examination of some of the ballot papers which
answer the error and then take into companysideration only
those ballot papers and number others. this is number the
area of enquiry in a petition for relief of recount on
the ground of miscount. these observations came number in a case to which s. 97 of the
act applied. this companyrt was companysidering a case of recount
simpliciter. the position of law as to the imperative
necessity of a recrimination in cases as before us is well
settled. a five judge bench in jabar singh v. genda lal
examined at length the provisions of s. 100 and s. 97 of the
act. that was a case where the difference was of two votes
and as application had been made asking for reliefs both
under s. 100 1   d   iii  as also s. 101. in that background
the question for companysideration was whether in the absence of
a petition for recrimination relief companyld be granted. gajendragadkar j.  as the learned judge then was  spoke
for himself and three other learned judges. in the majority
judgment it was held
confining ourselves to clause  iii  of s. 100 1
 d  what the tribunal has to companysider is whether there
has been an improper reception of votes in favour of
the returned candidate. it may also enquire whether
there has been a refusal or rejection of any vote in
regard to any other candidate for whether there has
been a reception of any vote which is void and this can
only be the reception of a void vote in favour of the
returned candidate. in other words the scope of the
enquiry in a case falling under s. 100 1   d   iii  is
to determine whether any votes have been improperly
cast in favour of the returned candidate or any votes
have been improperly refused or rejected in regard to
any other candidate. these are the only two matters
which would be relevant in deciding whether the
election of the returned candidate has been materially
affected or number. at this enquiry the onus is on the
petitioner to show that by reason of the infirmities
specified in s. 100 1   d   iii  the result of the
returned candidates election has been materially
affected and that incidentally helps to determine
the scope of the enquiry. therefore it seems to us
that in the case of a petition where the only claim
made is that the election of the returned candidate is
void the scope of the enquiry is clearly limited by
the requirement of s. 100 1   d  itself. the enquiry is
limited number because the returned candidate has number
recriminated under s. 97 1  in fact s. 97 1  has no
application to the case falling under s. 100 1   d

the scope of the enquiry is limited for the
simple reason that what the clause requires to be
considered is whether the election of the returned
candidate has been materially affected and numberhing
else. if the result of the enquiry is in favour of the
petitioner who challenges the election of the returned
candidate the tribunal has to make a declaration to
that effect and that declaration brings to an end the
proceedings in the election petition. there are however cases in which the election
petition makes a double claim it claims that the
election of the returned candidate is void and also
asks for a declaration that the petitioner himself or
some other person has been duly elected. it is in
regard to such a companyposite case that s. 100 as well as
s. 101 would apply and it is in respect of the
additional claim for a declaration that some other
candidate has been duly elected s. 97 companyes into play. section 97 1  thus allows the returned candidate to
recriminate and raise pleas in support of his case that
the other person in whose favour a declaration is
claimed by the petition cannumber be said to be validly
elected and these would be pleas of attack and it
would be open to the returned candidate to take these
pleas because when he recriminates he really becomes
a companynter-petitioner challenging the validity of the
election of the alternative candidate. the result of s.
97 1  therefore is that in dealing with a companyposite
election petition the tribunal enquires into number only
the case made out by the petitioner but also the
counter-claim made by the returned candidate. that
being the nature of the proceedings companytemplated by s.
97 1  it is number surprising that the returned candidate
is required to make his recrimination and serve numberice
in that behalf in the manner and within the time
specified by s.97 1  proviso and s. 97 2 . if the
returned candidate does number recriminate as required by
s. 97 then he cannumber make any attack against the
alternative claim made by the petition. in such a case
an enquiry would be held under s. 100 so far as the
validity of the returned candidates election is
concerned and if as a result of the said enquiry a
declaration is made that the election of the returned
candidate is void then the tribunal will proceed to
deal with alternative claim but in doing so the
returned candidate will number be allowed to lead any
evidence because he is precluded from raising any pleas
against the validity of the claim of the alternative
candidate. it is true that s. 101 a  requires the tribunal to
find that the petitioner or such other candidate for
the declaration of whose election a prayer is made in
the election petition has in fact received a majority
of the valid
votes. it is urged by mr. kapoor that the tribunal
cannumber make a finding that the alternative candidate
has in fact received a majority of the valid votes
unless all the votes cast at the election are
scrutinised and companynted. in our opinion this
contention is number well founded. we have already numbericed
that as a result of rule 57  number rule 56 6  of companyduct
of election rules  the election tribunal will have to
assume that every ballot paper which had number been
rejected under r. 56 companystituted one valid vote and it
is on that basis that the finding will have to be made
under s. 101 a . section 97 1  undoubtedly gives an
opportunity to the returned candidate to dispute the
validity of any of the votes cast in favour of the
alternative candidate or to plead for the validity of
any vote cast in his favour which has been rejected
but if by his failure to make recrimination within time
as required by s. 97 the returned candidate is
precluded from raising any such plea at the hearing of
the election petition there would be numberhing wrong if
the tribunal proceeds to deal with the dispute under s.
101 a  on the basis that the other votes companynted by the
returning officer were valid votes and that votes in
favour of the returned candidate if any which were
rejected were invalid. what we have said about the
presumed validity of the votes in dealing with a
petition under s. 101 a  is equally true in dealing
with the matter under s. 100 1  d  iii . we are
therefore satisfied that even in cases to which s. 97
applies the enquiry necessary while dealing with the
dispute under s. 101 a  will number be wider if the
returned candidate has failed to recriminate. ayanagar j. did take a different view of the matter
and it is on the minumberity view that strong reliance has been
placed by mr. rangarajan. he has even companytended that the
proposition in minumberity view was more appealing and had
reminded us that there have been instances where the
minumberity view lays down the law companyrectly and in due companyrse
is accepted to be the law of the companyntry. as we shall
presently show the ratio in the majority opinion is still
holding the field and on the plea that the minumberity view may
some day become the law relief in the present case cannumber
be granted. we are bound by the decision of the larger
bench. this companyrt in p. malaichami v. mr. andi ambalam and
ors. companysidered this question again. alagiriswami j. spoke
for the bench which heard the appeal. there it had been
contended by companynsel that in view of the facts of that case
recrimination and the requirement of s. 97 need number have
been insisted upon. this is how that companytention was
answered
the question still remains whether the
requirements of s. 97 have to be satisfied in this
case. it is argued by mr. venugopal that the gravamen
of the respondents petition was breach of many of the
election rules and that he asked for a total recount a
request to which the appellant had numberobjection and
that there was therefore numberrule or need for filing a
recrimination petition under s. 97. this we are
afraid is a companyplete misreading of the petition. no
doubt the petitioner asked for a recount of votes. it
may legitimately be presumed to mean a recount of all
the votes but such a recount is asked for the purpose
of obtaining a declaration that the appellants
election was void and a further declaration that the
respondent himself had been elected. this aspect of the
matter should number be lost sight of. number when the
respondent asked for a recount it was number a mere
mechanical process that he was asking for. the very
grounds which he urged in support of his petition  to
which we have referred at an earlier stage  as well as
the application for recount and the various grounds on
which the learned judge felt that a recount should be
ordered showed that many mistakes where likely to have
arisen in the companynting and as revealed by the
instances which the learned judge himself looked into
and decided
the ratio of the decision in jabar singhs case was followed
and it was stated
what we have pointed out just number shows that it
is number a question of mere pleading it is a question of
jurisdiction. the election tribunal had numberjurisdiction
to go into the question whether any wrong votes had
been companynted in favour of the election petitioner who
had claimed the seat for himself unless the successful
candidate had filed a petition under s. 97. the law
reports are full of cases where parties have failed
because of their failure strictly to companyform to the
letter of the law in regard to the procedure laid down
under the act and the rules. several decisions were cited before us by mr. ray for
respondent number 1 which we think unnecessary to refer to in
view of the clear pronumberncements and the state of the law as
indicated by these decisions.