JUDGMENT
U.N. Sinha, J.
1. This appeal has been placed before me under Clause 28 of the Letters Patent of this Court, for hearing upon the points of difference between two learned Judges of this Court, namely, Mahapatra and Ramratna Singh, JJ. By their judgments, dated the 3rd December 1965, they have differed on two points, which have been mentioned in the ordersheet thus:
“The difference that has arisen between us, according to the judgment delivered now is about the reliability or/and sufficiency of the evidence on the record in regard to the allegation of the offer of bribe by the appellant to Shri Shah Mustaque Ahmad and Sri Ram Narain Chaudhary”
2. The appellant, Sri Rajendra Prasad Jain, was elected to the Parliament (Rajya Sabha) from the constituency of the Bihar Legislative Assembly, in 1964, against which a election petition was presented before the Election Commission by one of the unsuccessful candidates. Sri Sheel Bhadra Yajee who is respondent No. 1 in this appeal Sri Yajee had asked for the election of Sri Jain to be declared void, and Sri Yajee had also asked for a declaration to the effect that he had been duly elected. Sri Jam had filed a recriminatory petition against Sri Yajee, Both the petitions were heard together by the Election Tribunal, and by judgment and order, dated the 31st May 1965, it was held that some of the corrupt practices alleged against Sri Jain had been proved. With respect to the recriminatory petition, none of the allegations were held to nave been established. In the result, the election of Sri Jain was declared to be void, but the Tribunal refused to declare Sri Yajee to have been duly elected.
3. The appeal filed in this Court by Sri Jain under Section 116A of the Representation of the People Act, 1951 (Act XLIII of 1951) was placed for hearing before a Division Bench of this Court consisting of Mahapatra and Ramratna Singh, JJ., and all the points decided against the appellant were contested and the learned Judges have decided these points by two separate judgments. As indicated above, the learned Judges have differed on two points, mentioned in their order.
4. Two preliminary objections have been taken by Sri Kanhaiya Prasad Verma, appearing for Sri Yajee. The first is to the effect that Clause 28 of the Letters Patent of this Court does not apply to this appeal filed wider the Representation of the People Act, 1951, and therefore, Section 98 of the Code of Civil Procedure applies. It is argued that if Clause 28 does not apply, then, the judgment and order of the Tribunal must be affirmed under Section 98 (2) of the Code of Civil Procedure, us the learned Judges have not differed in their opinion on a point of law. The effect of Section 98 (3) of the Code of Civil Procedure is met by the learned counsel on the words of Clause 28 of the Letters Patent, which clause runs thus:–
“And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Patna in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act, 1915, and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point, shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it”.
It is argued by learned counsel that Clause 28 applies to the appellate jurisdiction of this Court, directed to be performed by the Letters Patent and not by any other Act such as the Representation of the People Act, 1951 (Act XLIII of 1951). It is urged that this appeal is not being heard in the appellate jurisdiction directed to be performed by the Letters Patent of this Court and, therefore, Clause 28 does not apply. Having heard learned counsel for the parties, I am of the opinion that this contention advanced by Sri Verma must fail. The decision of their Lordships of the Supreme Court, in the case of South Asia Industries (P) Ltd. v. S. B. Samp Singh, reported in AIR 1965 SC 1442, completely answers the submissions made by Sri Verma, South Asia Industry’s case dealt with Clause 11 of the Letters Patent of the Punjab High Court, which reads thus:
“And we do further ordain that the High Court of judicature at Lahore shall be a Court of Appeal from the Civil Courts of the Province of the Punjab and Delhi and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of these presents subject to appeal to the Chief Court of the Punjab by virtue of any law then in force or as may after that date be declared subject to appeal to the High Court of judicature at Lahore by any Taw made by competent legislative authority for India.”
Clause 11 of the Letters Patent of this Court is identical in effect and it reads thus:–
“And we do further ordain that the High Court of Judicature at Patna shall be a Court of Appeal from the Civil Courts of the Province of Bihar and Orissa and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such cases as were, immediately before the date of the publication of these presents, subject to appeal to the High Court of Judicature at Fort William in Bengal by virtue of any law then in force, or as may after that date be declared subject to appeal to the High Court of Judicature at Patna by any law made by competent legislative authority for India.”
The crucial words to which reference was made by the Supreme Court were, “or as may after that date be declared subject to appeal to the High Court of Judicature at Lahore by any law made by competent legislative authority for India”, appearing in Clause 11 of the Letters Patent of the Punjab High Court. These words are in effect the same in Clause 11 of the Letters Patent of this Court. In South Asia Industry’s case, the Supreme Court stated that the second part of Clause 11 of the Letters Patent given to the Punjab High Court does not make a distinction between appellate jurisdiction over Courts and that over Tribunals which are not Courts. Therefore, in my opinion, if a law made by a competent legislative authority declares an order of a Tribunal to be appealable to this Court, this Court must entertain the same and dispose of it according to law, and there is no reason for excluding Clause 28 of the Letters Patent of this Court, if there be any difference of opinion on facts between two learned Judges, who have originally heard the appeal. Moreover, under Section 116A (2) of the Representation of the People Act, 1951, the procedure to be
followed in this Court should be as if the appeal were one from an original decree passed by a Civil Court. Sri Verma has then argued that under the proviso to Section 116A (2) of the Representation of the People Act, 1951 an appeal must be heard by a Bench of not less than two Judges, and, therefore, a single Judge of this Court cannot hear it at any stage. This contention is also not valid. According to Clause 28 of the Letters Patent, the points on which difference has arisen, will ultimately be decided according to the opinion of the majority of the Judges, who have heard this appeal, including those who first heard it. In the result, all the points which have arisen in this appeal will be decided by two of the Judges of this Court. Therefore, the effect of Section 116A (2) will be fulfilled, and the ultimate decision in this appeal will be by two of the Judges of this Court. The preliminary objections must, therefore, fail.
5. On the facts, the first point which has been argued is whether Sri Jain had offered bribe to Sri Saheb Mustaq Ahmad (P. W. 7), in the afternoon of the 24th March 1964, inducing him to vote for Sri Jain or not. P. W. 7 was at that time a member of the Bihar Legislative Assembly and he was one of the voters in the election in question and he had voted in the election which took place on the 26th March 1964. The evidence given by P. W. 7 in this context is that on the 24th March 1964, between 5 or 6 p.m., one Shri S.R. Dutta, whom this witness knew for about ten years, and another black-complexioned man whose name he did not know [this was supposed to be Sri Vishwanath Prasad Verma (R. W. 10), the election agent of Sri Jain], came to him along with Sri Jain. The witness had seen Sri Jain before that day though he had no formal acquaintance with him. Sri Dutta introduced Sri Jain to this witness. Thereafter, Sri Dutta said that he had brought Sri Jain so that the witness should cast his first preference vote in Sri Jain’s favour. P. W. 7 then informed Sri Dutta, that he had come to a wrong place and that he should not say such a thing to him. Then Sri Jain said, “In your elections a lot of money is spent and, therefore, take some money from me and cast your first preference vote in my favour”. The witness answered that Sri Jain need not bother about the expenses of his election and that Sri Jain should keep his own money. Then Sri Dutta and Sri Jain started leaving and Sri Dutta tarried for a while and said to P. W. 7 that he may be excused for the trouble given to him, but that he was only trying to help the witness. According to P. W. 7, Sri Motiur Rahman Shamim (P. W. 11), the editor of the Urdu weekly “Roshni” was at his place from before Sri Jain and his party had come. P. W. 7 has further stated in his examination-in-chief that he had told about the incident to one Sri Choudhary A. Muhammad (not examined in this case), on the 25th March 1964, at about noon, in the Assembly premises. It is further stated that about 8 to 10 days after the result of the election had been published (which was in the evening of the 26th March
1964), Sri Yajee had asked this witness about this incident, saying that he had been told about it by Sri Choudhary A. Muhammad. The substance of the evidence given by Sri Motiur Rahman (P, W 11) is as follows: He was related to Sri Mustaq Ahmad (P. W. 7) and on the 24th March 1964, he had seen Sri Jain at the place of P. W. 7 between 5 and 6 p.m. Sri Jain was then accompanied by two other persons, of whom he had recognised one Dutta Saheb. At that time this witness was discussing matters regarding his sister’s marriage with P. W. 7. Sri Dutta had told P. W. 7 that he would like to talk to him privately. P. W. 7 had then asked this witness to go out on the verandah for sometime. The witness came out of the room on to the adjoining verandah. From there he heard some conversation taking place between P. W. 7 and the persons inside the room. He heard Sri Jain saying to P. W. 7 that in their elections a lot of money is spent and Sri Jain would contribute something and P. W. 7 was asked to vote for Sri Jain. According to P. W. 11, when Sri Jain and his companions had left, P. W. 7 had told him that these people had come there to purchase his vote, to which P. W. 7 had said that they had come to the wrong place. P. W. 7 had further informed Sri Jain that in no case his vote would be available to Sri Jain. The evidence given by Sri Yajee (P. W. 21) in this context is this; Sri Mustaq Ahmad (P. W. 7) had informed him that he had been approached by Sri Jain to accept money for meeting the expenses that he had incurred in his election, and to cast his first preference vote in Sri Jain’s favour in this election. In the month of October or November, 1964, P. W. 7 had also informed Sri Yajee (P. W. 21) that when Sri Jain had come to his place, one Motiur Rahman was also there. Sri Yajee had verified this from Sri Motiur Rahman, who had confirmed that when Sri Jain had approached P. W. 7 with such a proposal, he was also present at the place of P. W. 7. It may be clarified that P. W. 21 has not clearly stated when he was informed by P. W. 7, whereas P. W. 7 has stated, as indicated earlier, that this conversation had taken place eight or ten days after the 26th March, 1964. But one thing is clear, and that is that P. W. 21 had left Patna in the night of the 26th March, 1964, on tour, and he had returned to Patna in the morning of the 4th April, 1964. All these matters have, of course, been denied by Sri Jain (R. W. 13) and Sri Vishwanath Prasad Verma (R. W. 10).
6. If the evidence of the witness examined on behalf of Sri Yajee (P. W. 21) is believed aw true the denial of R. W. 10 and R. W. 13 will have to be disbelieved, and one of the contentions raised on behalf of the appellant challenging the whole episode, is based on the fact that the name of Sri Motiur Rahman (P. W. 11) had been given in the second list of witnesses filed on behalf of Sri Yajee on the 18th November 1964. The first list of witnesses had been filed on the 24th September 1964 when the names of 24 witnesses to be examined, were given. It is argued that the
inclusion of the name of P. W. 11 in the second list was an afterthought, and, therefore, apart from anything else, his testimony is suspect on this ground alone. This point is common to the charge of offering bribe to P. W. 7 and to the next charge of offering bribe to Sri Ram Narain Choudhary (P. W. 2) and, therefore, it deserves careful consideration. The ordersheet of the Tribunal indicates that the Issues were settled on the 17th September 1964, and the case was adjourned to the 24th September, for fixing a date of hearing. Parties were directed to file their list of witnesses and to take steps to call for their documents in the meantime. On the 24th September a petition was filed on behalf of Sri Yajee (P. W. 21), praying that certain witnesses may be summoned. The List of witnesses submitted on that day included the name of P. W. 7 but not that of P. W. 11. Order was passed for summoning the witnesses and the 16th November was fixed for hearing of the case. In the meantime, on the 1st October, a petition was filed on behalf of Sri Yajee (P. W. 21), praying for amendment of Schedules 1 and 2 of the election petition. When the case was taken up on the 16th November, the amendment petition was put up for orders and the case was adjourned to the 18th November for filing rejoinder by Sri Jain (R. W. 13) and for hearing of the amendment petition. A rejoinder was filed by Sri Jain on the 18th November, and on hearing counsel for the parties, the amendments prayed for on behalf of Sri Yajee (P. W. 21) were allowed. It appears that on the same day, namely, the 18th November a petition was filed on behalf of Sri Yajee (P. W. 21) with a fresh Hst of witnesses, praying that they may also be summoned. Dasti cover, as prayed for, was ordered to be issued on the same day. In this second list the name of P. W. 11 was given. The actual hearing of the case commenced on the 30th November 1964. On this broad outline, it is argued on behalf of the appellant that the name of P. W. 11 was thought of subsequently as he was a relation of P. W. 7 and, therefore, the whole case of corroboration by the evidence of P. W. 11 should be rejected. I do not, however, think that such a sweeping view should be taken for rejecting the testimony of P. W. 11, unless there are other materials to indicate that this aspect of the case is false and has been concocted. If the argument on behalf of the appellant is acceptable in this respect it may be presumed that after filing the first list of witnesses on the 24th September 1984, ways and means were being thought of to bolster up a case by introducing further materials on the record. If this were, so, then there is no reason why the second list of witnesses was not filed earlier, when an application was filed on behalf of Sri Yajee on the 1st October 1984, praying for amendment of Schedules 1 and 2 of the election petition. By amendment of Schedule 1, three particular cases were introduced, to the effect that three voters, Sri Vidya Kishore Vidyalan-kar, M.L.A., Sri Pal Dayal, M.L.A., and Sri Bholanath Das, M.L.A., were actually paid money to vote for Sri Jain. The amendment
sought with respect to Sch. 2 was by the introduction of a case that five more voters, named Sri Chandra Sheikhar Singh, M.L.A., Sri Rama-nand Tewqry, M.L.A., Sri Nripendra Narain Singh Deo, M.L.A., Sri Prabhat Kumar Aditya Dec, M.L.A., and Sri Rudra Narain, M.L.A. were offered money to vote for Sri Jain, Therefore, if the contention raised on behalf of the appellant be correct, then presumably, the case of examining P. W. 11 to depose falsely had not been thought of on or about the 1st October 1964, Therefore, on the same reasoning, the name of P. W., 11 was invented between the 1st October and 18th November 1964, when the second list was filed, mentioning the name of P. W. 11. If this were the case, then one would have expected that attempts would have been made to bolster up fully the new cases which were introduced by the petition of amendment filed on the 1st October 1964. But, curiously enough, that was not done. For instance, the case of giving bribe to Sri Pal Dayal, introduced by the amended schedule 1, was not pressed in Court at all. Similarly, the case of offer of bribes to four persons, introduced by the amended schedule 2, was abandoned in Court. Only one witness was examined as P. W. 17 (whose name had been mentioned in the first list) to prove the allegations with respect to bribery of Sri Bholanath Das. Similarly, only one witness, namely, P. W. 19 (whose name had also been mentioned in the first list) was examined to prove the allegations of bribing Sri Vidya Kishore Vidyalankar. If attempts were being made to bolster up a false case by introducing fresh names of witnesses on the 18th November 1964, one would have expected fresh names in the second list to support the cases of bribing Sri Bholanath Das and Sri Vidya Kishore Vidyalankar. By amended Schedule. 2, the case of offer of bribe to Sri Prabhat Kumar Aditya Deo was introduced. But only one witness, namely, P. W. 13 (whose name was mentioned in the second list) was examined in this connection. It seems to me that if improvements were being thought of later on, then better attempts would have been made to prove the cases introduced by the amendments of the two schedules. In view of this state of affairs, it is hardly likely that the name of P. W. 11 would have been introduced to depose falsely in support of the ease of offer of bribe to P. W. 7. However, these matters are extremely speculative and marshalling of evidence in a case like this cannot be expected with the thoroughness of logistics. I shall, therefore, proceed with the consideration of the evidence of P. Ws. 7 and 11 on their own merit. The evidence of P. W. 7 has been challenged as that of a highly interested witness, on the ground that he was a proposer for Sri Yajee, I do not think there is any force in this contention, because, it has been elicited from P. W. 7, in cross-examination, that he had signed as proposer or seconder on three or four nomination papers including that of Sri Yajee. P. W. 7 had also been a proposer of Sri Choudhary A. Muhammad. Therefore, there is no indication that
P. W. 7 had any special interest in the cause of Sri Yajee’s success. As a matter of fact, it has come on the record that the Congress M.L.As. were divided into groups, to vote for six Congress candidates and P. W. 7 was in the group in which the members were directed to cast their votes in favour of Sri Choudhary A. Muhammad. This aspect of the matter has another important bearing, because it has been argued on behalf of the appellant that why did P. W. 7 inform Sri Choudhary A. Muhammad, about the incident in question on the 25th March, when he did not inform Sri Yajee about this matter until the latter returned to Patna. I think it was quite natural for P. W. 7 to mention this matter to Sri Choudhary A. Muhammad on the 25th March, because he was expected to vote for Sri Choudhary A. Muhammad and not for Sri Yajee. I do not find any inherent defect in the evidence of P. W. 7 for disbelieving him and his evidence alone may be sufficient for accepting the case that Sri fain was guilty of indulging in corrupt practice. Then comes the evidence of P. W. 11. His evidence is challenged, first, on the ground that he was related to P. W. 7. This contention is too general to be accepted for rejecting the testimony of this witness. It is contended further that the conversation that P. W. 11 is said to have overheard is not exactly the conversation that had taken place according to P. W. 7. This contention is also without much substance. The substance of the evidence given by P. Ws. 7 and 11 seems to be the same, and absence of tutoring is manifest from the fact that P. W. 11 has not repeated the conversation in exactly the same words in which it has been deposed to by P. W. 7. There is another indication which can be gathered from the evidence of P. Ws. 7 and 11 taken together, which is this: In his examination-in-chief P. W. 7 stated that at the time of the incident in question, P. W. 11 was there, but P. W. 7 did not say at that stage that he had any conversation with P. W. 11 after Sri Jain and his party had left. It was elicited by cross-examination of P. W. 7 that on the 24th March 1961. he had informed P. W. 11 about the conversation after Sri Jain and his party had left. The evidence of P. W. 7 given in his examination-in-chief and in cross-examination in this context has the naturalness which goes to prove that the evidence must be true. Some argument was advanced as to when P. W. 7 could have given information to Sri Yajee that P. W. 11 was also present. P. W. 7 has deposed that he informed Sri Yajee about the incident eight to ten days after the election result was out but. at that time, he had not named P. W. 11. The name of P. W. 11 was disclosed about a month before December 1964. Here also, I do not find any improbability, Only because at the time of the first conversation with Sri Yajee, P. W. 7 had not disclosed the name of P. W. 11, it cannot be held that the evidence given by P. W. 7 must be false. It is not fully known what was the nature of the first conversation between P. W. 7 and Sri Yajee and in what circumstances the conversation had taken place and for how long they had talked, and, therefore, there may not have been any opportunity of bringing in the name of any corroborating witness on the first occasion. Then, some statement made by P. W. 11 in cross-examination has been compared with the evidence given by Sri Yajee (P. W. 21) in this respect. It was elicited from P. W. 11 that he had mentioned about the fact that he had overheard the conversation of Sri Jain with P. W. 7 to one Anwar Zaidi, in the office of their paper called “Roshni”, but that he had not said about it to Sri Yajee. This is compared with Sri Yajee’s statement where he has deposed that he had verified about the incident from P. W. 11, who had confirmed that when Sri Tain had approached P. W. 7 with his
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roposal, he was also present at the place of P. W. 7. It is argued that according to P. W. 11, he had no conversation with Sri Yajee about this matter, while according to the latter, he had a talk about this matter with P. W. 11. Here also, I do not think that the criticism is valid. The exphasis laid by P. W. 11 is on his overhearing the conversation between Sri Jain and P. W. 7. This matter he had not told to Sri Yajee. What Sri Yajee had verified from P. W. 11 was that he had been present at the
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lace of P. W. 7 at the time of the incident. It was not made clear in the cross-examination of Sri Yajee as to whether P. W. 11 had or had not told him that he had overheard the conversation. Some argument has also been advanced on the fact that if P. W. 11 had been asked by P. W. 7 to go out on the verandah when Sri Jain and his party had come, P. W. 11 would not have cared to overhear the conversation that had taken place thereafter. But, this matter has been clarified by P. W. 11 in cross-examination, where he has stated that he had no wish to hear the talk, but as he was standing on the verandah by the side of the room, he could overhear the conversation. Therefore, it is not possible to accept the argument that P. W. 11 would not have overheard any conversation even if he were present on the verandah, because he should not have overheard the conversation It may be that he could not help overhearing some part of the conversation, standing as he was on the joining verandah. It has also been argued by the learned counsel for the appellant that as P. W. 11 had not seen Sri Jain before the time of the incident, he could not have recognised the voice of Sri Jain talking to P. W. 7. In my opinion, this is too critical an approach to the evidence given by this witness. He had heard someone talking to P. W. 7 at the time of the incident and it was quite possible for him to state later on, that, it was Sri Jain who was the person who had talked to P. W. 7. Upon a consideration of the evidence given by P. Ws. 7 and 11, I am of the opinion that their evidence should be accepted. So far as Sri Yajee (P. W. 21) is concerned, he has deposed that P. W. 7 had informed him about the conversation with Sri Jain and I do not see any reason for disbelieving this evidence. He had left Patna on the 26th March 1964 and
he had returned on the 4th April, and it fits in with the evidence of P. W. 7 to the effect that eight to ten days after the result was out he had talked about the incident to Sri Yajee
(P. W. 21).
7. The second incident which falls for determination is based on the evidence of Sri Ram Narain Choudhary (P. W. 2). This witness was a member or the State Assembly on Congress ticket and he was also a voter from the Assembly Constituency in the election in question. He has deposed that on the 26th March 1964 at about 7 a.m. he was in his flat, which consisted of two rooms. In the front room two persons named Sheodeo Singh (P. W. 9) and Manoranjan Prasad (P. W. 14) were staying at that time. P. W. 9 was a research student in the Patna University and P. W. 14 was in service in the Patna Improvement Trust. The witness was taking Nasta in the second room, when P. Ws. 9 and 14 went to him and informed him that three persons had come, who were Sri Jain, Sri Vishwanath Prasad Verma and Sri Dutta. P. W. 2 did not know the full name of Sri Dutta, but he had known Sri Verma for sometime. These three persons were called in and Sri Verma then talked to P. W. 2, saying that he had come once before. P. W. 2 replied that he must have gone away somewhere at that time. Thereafter Sri Verma introduced Sri Jain to P. W. 2 as a candidate for the Rajya Sabha election. P. W. 2 stated that he knew that from before. Then Sri Jain said that he wanted the help of P. W. 2. P. W. 2 replied that as he was a Congress M. L. A., what help could Sri Jain expect from him. Sri Jain then said that in the election of P. W. 2 he must have incurred certain expenses and therefore, Sri Jain wanted to help him, so that P. W. 2 may help Sri Jain. The actual words in this context were:
“Is Par Jain Saheb Ne Kaha Ki Apko Bhi To Election Men Kharch Barch Hua Hoga. Isliye Ham Upko Kuchh Seva Karna Chahte Hian. Ap Hamare Madad Kijiye.”
Upon this P. W. 2 told Sri Verma that he knew P. W. 2 for a long time and he was made of a different stuff and, therefore, why offer of money was made to him. Then, Sri Jain asked to be pardoned and thereafter all the three persons went away. P. W. 2 has stated that he had told about this incident to Sri Yajee on the same day after the result of the election was out. It was elicited in cross-examination of P. W. 2 that next day, i. e. on the 27th March, 1964 he had disclosed this matter to the Chief Whip, who is Shakoor Ahmad (P. W. 13). This evidence given by P. W. 2 has been supported by Sri Yajee (P. W. 21), who has deposed that after the election result was declared on the 26th March, 1964, P. W. 2 had informed him that in the morning Sri Jain had approached him, saying that P. W. 2 should accept money to meet the cost which he had incurred in his own election and cast his first preference vote in favour of Sri Jain. According to Sri Yajee (P.W. 21), he had been told subsequently by P.W.2 that at the time of the incident, Ws. 9 and 14 were there and this matter was verified. P. W. 9 has corroborated the evidence of P. W. 2 and has added that just after the incident, P. W. 2 had told him and P. W. 14, “Dekho Punji Pati Log Hamko Kharidna Chahte Hain”. The name of Sri Jain had also been mentioned at that time. This is also the substance of the evidence of P. W. 14. According to the Chief Whip (P. W. 13), on the 27th March, 1964, P. W. 2 had told him that a Congress candidate had been defeated, be-cause money had passed in the election and that P. W. 2 had been approached and in that context he had taken the name of Sri Jain and some other persons. If the evidence given by P. Ws. 2, 9, 14 and 13 is accepted, then there is no doubt that this allegation has also been proved. The same argument is advanced for rejecting the evidence of P. Ws. 9, 14 and 13, as they bad been named in the second list filed on the 18th November, 1984. But, for the reasons already given, the evidence of these witnesses must be tested on their merit and their evidence cannot be rejected only because they were not named in the first list. The evidence of P. W. 2 is challenged on grounds which do not appear to me to be substantial at all. It is contended that in the examination-in-chief this witness stated that he had been elected to the Legislative Assembly in 1957 also, whereas it appears from his cross-examination that in the 1957 election he bad been defeated by Harihar Mahton. In 1937 P. W. 2 had contested from Hariarpur constituency from the Praja Socialist Party. I do not think that the discrepancy is so serious as to vitiate the entire evidence of this witness. As a matter of fact, it appear to me that the year 1957, mentioned in the second paragraph of the evidence of this witness, was so recorded by mistake, and the Tribunal was cognisant of the fact that P. W. 2 had been elected twice and not thrice. This has been clearly stated in paragraph 87 of the order under appeal. It is then argued that P. W. 2 has stated that he did not remember if he was made to sign any paper showing as to in favour of which particular candidate he was to cast his first preference vote. According to the learned counsel for the appellant, the voters had signed such papers and this witness for some reason or other was feigning loss of memory. This argument is also too speculative lor rejecting the evidence of this witness on this ground. Even if P. W. 2 had signed any paper indicating the candidate for whom he had to cast his first preference vote, he may have forgotten about this matter. If the evidence given by P. W. 2 in his examination-in-chief is considered as a whole, an impression is created that he has not come forward to give false testimony, without any regard for truth. For instance, if P. W. 2 was being brought forward to support a false case, it is unlikely that he would depose about the presence of P. Ws. 9 and 14 and then he would forget to state in his examination-in-chief that immediately after the incident he had told about this matter to these two persons naming Sri Jain As a matter of fact, ft was elicited in cross-examination that when
he had disclosed about the incident to Sri Yajee, he had also told him that P. Ws. 9 and 14 were present at the time of the incident and P. W. 2 had told them at that very time that capitalists had the audacity to come and try to bribe him to purchase his vote. Therefore, it is difficult to believe that P. W. 2 was being examined to support a false case. Some argument was advanced by learned counsel for the parties on the evidence of P. W. 2 where he has deposed in his cross examination that he had written a letter to his party leader, i. e., the Chief Minister, complaining of the approach made by Sri R. P. Jain and his men, on broad lines, though in that letter he had specifically mentioned the talks that they had with him and the reply that was given by him. According to P. W. 2 this letter had been written eigbt to ten days after the incident in question. Learned counsel for the appellant has urged that when this letter has not been produced, an adverse inference should be drawn against the evidence of P. W. 2, whereas according to the learned counsel for Sri Yajee, when this matter was elicited in cross-examination, it was the duty of Sri Jain to call for this letter, and when that was not done, it must be held that such a letter was in fact, written by this witness. I do not think that the contention raised by the learned counsel for the appellant that an adverse inference should be drawn can be accepted. The witness stated in cross-examination that he could not say where that letter could be found now and if the witness was going to be contradicted, the letter should have been called for on behalf of Sri Jain. On the other hand, it is difficult to hold also that the letter would have supported the evidence of P. W. 2, and, therefore, I will leave this matter at large. On the whole I do not think sufficient grounds have been made out for rejecting the evidence of P. W 2.
8. Now, I shall consider the evidence given by Sheodeo Singh (P. W. 9) and Manoranjan Prasad (P. W. 14) in this context P. W. 9 was a co-villager of P. W 2 and P. W. 14 was a man of his constituency. The evidence of these two witnesses is challenged on the following discrepancy. P. W. 9 has deposed that on the 26th March, 1964, that is to say, on the date on which the poll was held, at about 7 a. m., he and P. W. 14 were sitting in their room in the flat of P. W. 2, when there was a knocking sound at the door. P. W. 14 went and opened the door and on seeing Sri Jain and his party, he and P. W. 14 went to inform P. W. 2, whereupon the latter asked that Sri Jain and his party may be sent to P. W. 2’s room. P. W. 14 has said in this connection that when Sri fain and his party came to the flat of P. W. 2, he was washing his mouth on the verandah and P. W. 9 was reading and writing inside the room. Some knocking sound was heard, whereupon P. W. 9 asked him to go and open the door, which he did. It is contended on behalf of the appellant that this contradiction shows that P. Ws. 9 and 14 were not present in the flat of P. W. 2 and that false evidence has now been introduced. In my opinion,
however, the contradiction is not so substantial that an inference must follow that false evidence has been given by P. Ws. 9 and 14. It may be realised that P. W. 9 has deposed in his very examination-in-chief that he and P. W. 14 were sitting in their room. If a false case was concocted, it is highly unlikely that P. W. 14 would have said in his own examination-in-chief that he was washing his mouth on the verandah and P. W. 14 was reading and writing inside his room. Therefore, the discrepancy must be due to lapse of memory. From the evidence of P. Ws. 2, 9 and 14 taken as a whole, there is unmistakable indication that P. Ws. 9 and 14 used to live in P. W. 2’s flat and the evidence given to the contrary by Budhinath Singh (R. W. 6) cannot be accepted. For instance, it was elicited from P. W. 2 in cross-examination that when he stayed in his flat, he and P Ws. 9 and 14 had common messing, and when he was away from Patna, these two persons managed about their own food. No such evidence was given by P. W. 9 in his examination-in-chief; but this matter was put to him in cross-examination, when he stated that when P. W. 2 lived in the flat, he and P. W. 14 took their meals with him and in his absence, they took their meals outside. Then, it was elicited from the cross-examination of P. W 2 that P. W. 14 began living in his flat from about one year before the 26th March, 1964 When P. W. 14 was examined, he did not refer to tins aspect of the matter. But this was put to him in cross-examination and he stated that he was living in the flat of P. W. 2 since April 1963. In my opinion, these are unmistakable details from which it should be held that P. Ws. 9 and 14 were living in this flat when the incident is said to have taken place. Budhinath Singh (R. W 6) was examined to state that he was staying in flat No. 44 on the first floor whereas P. W. 2 had his flat No. 42 on the ground floor. He has deposed that at the time of the election in March, 1964, no outsider was permanently living in flat No. 42. He has deposed that no persons named Sheodeo Prasad Singh and Manoranjan Singh were living in flat No. 12 at that time. I am not, however, prepared to accept the evidence of this witness on this point. As a matter of fact, it is clear from his cross-examination that he did not know any of the details about the occupants of the other flats. It was elicited from his cross-examination that he did not know the names of the brother, son, nephew or any relation of P.W. 2 He knew the name of only one person of P. W. 2’s constituency, namely Sri A. K. P Sinha. He did not remember the name of any other man of P. W. 2’s constituency. He did not remember the name of the village of P. W. 2. Therefore, it is hardly likely that he would have known the names of any of the occupants of the flat of P. W. 2. In the result. I do not see any reason for rejecting the evidence of P Ws. 9 and 14
9. Coming to the evidence of P. W. 13, it is contended on behalf of the appellant that according to this witness who was the Chief Whip of the Congress Party, he had been informed in the Assembly Office on the 27th March, 1964, by P. W. 2, at about 11 or 11-30 a. m., about the incident. It is urged that this evidence must be entirely false, as according to the evidence of R. W. 6, who was a voter in the election in question, after the voting on the 26th March, 1964, the Assembly was closed for about a week from the 27th March. It is argued that P. W. 2 could not have given any information to P. W. 13 in his Assembly Office. In my opinion, there is not much substance in his contention. The Assembly may have been closed from the 27th March, 1964, but only for this reason it cannot be held that P. W. 13 has falsely stated that he was in his office in the morning of the 27th March, 1964. It was elicited from P. W, 13 in cross-examination that the result of the election was announced near-about 8 p. m. or 9 p. m. and that he had learnt about the result in his office in the Assembly premises, because he had returned there from his residence after taking tea. When he was in his office, people had come and had informed him about the defeat of Sri Yajee. Therefore, it is clear that P. W. 13 used to go to his office even when the Assembly may not have been actually sitting. There is no clear evidence that the office of the Chief Whip used to be closed when the Assembly was not sitting. Merely from the evidence of R. W. 6 to the effect that the Assembly was closed for about a week from the 27th March, 1964, it cannot be held that the office of P. W. 13 was also closed for these days. If reliance was go-ing to be placed on behalf of the appellant on this aspect of the matter, before the Tribunal, much better evidence could have been adduced in this behalf. As a matter of fact, the appellant had examined a Whip of the Congress Party, who was Mangal Prasad Yadav (R. W. 2). lie was also a voter in this election He would have been in a position to state whether the Chief Whip’s office used to remain closed whenever the Assembly was closed or not. Having considered the evidence of P. W. 13 carefully, I am of the opinion that his evidence should also be accepted. Therefore, it is quite clear that the allegation of offering bribe by Sri Jain to P. W. 2 has been well established. The denial of the incidents made by Sri Jain (R. W. 13) and Sri Verma (R. W. 10) cannot, therefore, be accepted. As a matter of fact, Sri Verma (R. W. 10) was the election agent of Sri Jain (R. W. 13), but his evidence can hardly be believed in many matters. He has stated in cross-examination as follows: —
“R. P. Jain had signed and made over to me my appointment as his election agent on 10-3-64 and I had made it over to the Returning Officer on 10-3-64 or 13-3-64 which 1 do not now remember. Before he appointed me as his election agent I had never done his election works. After he made over my appointment paper as his election agent I asked him what would be my duties on which he informed that I had been appointed like this for the facility of taking papers to and from the Returning Officer. Except taking to and from the Returning Officers papers concerning his
election and working at the time of polling and counting I had not done any work of R. P. Jain in this election as his election agent. I do not now remember of any paper that I had taken to or taken from the Returning Officer. I have not kept (copy) of any paper that I had taken to the Returning Officer because as being just a messenger to take them I had no need to keep their copy.”
This evidence can hardly be accepted us true. Then, he has stated again:–
“After my appointment as his election agent and before the actual polling in this election I had no occasion to be with R.P. Jain for an hour or so even-adds whenever he used to call me for a minute or so I used to go to him and return after a minute or so. Between 10-3-64 to 26-3-64 I had met him for 5 to 7 times only and their duration were for about 10 to 15 minutes each.”
This kind of statement from an election agent can not possibly be believed.
10. For the reasons given above, I agree with the conclusion arrived at by Ramratna Singh J., to the effect; that the allegations of offer of bribe to Sri Mustaq Abmad (P. W 7) and Sri Ram Narain Choudhary (P. W. 21 by Sri Jain have been established. I agree with him that the appeal should fail.