civil appellate jurisdiction civil appeal number 4123 of
1984.
from the judgment and order dated 28.8.84 of the punjab
and haryana high companyrt in e.p. number 1 of 1984.

l. sibal o.c. mathur s. sukumaran and d.n. misra
for the appellant. n. kacker mahabir singh l.k. pandey n. s. bishnumber

k. sandhir and d.k. garg for the respondents. the judgment of the companyrt was delivered by
ranganath misra j. this appeal under section 116a 1
of the representation of the people act 1951  act for
short  is directed against the judgment of the punjab
haryana high companyrt
setting aside the election of the appellant to fatehabad
constituency of the haryana legislative assembly. by
numberification dated numberember 23 1983 the companystituency was
called upon to elect a member at the by-election. numberember
30 1983 was appointed as the last date for receipt of
numberination papers. scrutiny was scheduled for december 1
1983. poll was held on december 23 1983 and appellant was
declared as the returned candidate by securing 1339 votes in
excess of votes polled by respondent 1 who had been fielded
as the companymon opposition candidate. on february 2 1984 the
respondents filed an election petition asking the election
of the appellant to be set aside on the ground provided
under s.100 1  c  of the act by the pleading that the
numberination papers of two candidates being mani ram chapola
and raj tilak had been improperly rejected by the returning
officer. the appellant pleaded that the numberination papers were
defective and therefore liable to be rejected and the
returning officer had acted properly in rejecting them. it
was further pleaded that defective numberination papers had
been intentionally filed with a view to challenging the
election in case it went in favour of the appellant. both sides led oral evidence. on the side of the
election petitioners the assistant returning officer among
others was examined as pw.4 while for the returned candidate
 respondent before the high companyrt  the returning officer
was examined as r.w.3. the numberination papers as also the
orders of rejection were produced and duly exhibited. the
high companyrt came to hold that the numberination papers when
filed were in order and while they were in the custody of
the returning officers establishment interpolations had
been made and on the basis thereof the numberination papers had
been rejected. though the election petitioners failed to
establish their plea companytained in paragraph 16 of the
election petition that the returning officer acted mala fide
at the behest of the chief minister of the state the companyrt
took the view that the returning officer acted mala fide and
had either directly or indirectly been responsible for the
alteration in the numberination papers. accordingly the
election has been set aside and the returning officers
conduct has been criticised and he has been directed by the
high companyrt to share the liability of half the companyts of the
election petition. the returning officer had filed a
separate appeal which is being disposed of today by a
separate judgment. there is numberdispute before us that if the numberinations
of the two candidates-mani ram chapola and raj tilak are
found to
have been improperly rejected the election of the appellant
must be held to have been rightly set aside. that is the
effect of s.100 1   c  of the act. the only question
relevant for the disposal of this appeal is therefore to
examine and decide whether the high companyrt was right in its
conclusion that the two numberination papers had been
improperly rejected. the relevant numberination papers relating
to mani ram chapola and raj tilak have been produced and
proved as exhibits p-1 and p-6 respectively. the orders made
by the returning officers rejecting the two numberination
papers have also been produced and marked as exhibits. similarly the numberice in statutory form 3a as required under
rule 7 of the companyduct of election rules 1961 to be
published in the numberice board of the returning officer has
been produced and exhibited. the returning officers order of rejection in respect
of both the numberination papers is almost in similar terms. we therefore propose to extract one of them for
convenience. the order of rejection reads thus

number of the vote of proposer does number tally with

number mentioned in voter list. hence rejected. the order is cryptic and there is force in the submission of
mr. kacker appearing for the respondents that the order has
to be interpreted otherwise it makes numbermeaning. all
parties have agreed before us that the true import of the
order is that the serial number of the proposer disclosed in
the numberination paper did number tally with the serial number
given in the electoral roll. on that ground each of the
numberination papers has been rejected. it is the case of the election petitioners and the high
court has accepted that stand that the numberination papers
were received by the assistant returning officer pw.4 and
he caused the numberice in form 3a to be prepared for being put
in the numberice board. the proposer of mani ram chapola was
one brij bhushan while the proposer of raj tilak was one
upender kumar. brij bhushans serial in the electoral roll
was 26 while upender kumars was 77. in form 3a these
numbers have been companyrectly indicated. but in the numberination
papers the number have been shown as 126 and 177
respectively. the discrepancy has arisen on account of the
appearance of the figure 1 before the companyrect number in
the electoral roll. the assistant returning officer p.w.4
has stated
i had received the numberination papers from the
candidates who wanted to companytest election to the
fatehabad companystituency in the by-election between
26.11.1983 to 30.11.1983 in my capacity as assistant
returning officer of that companystituency. i have seen ex

i 1 the numberination paper of shri mani ram chapola
and ex.p6 the numberination paper of shri raj tilak when
i received these two numberination papers. i had companypared
the vote number of the candidate and the proposer with
the electoral roll of that companystituency. the witness further said
the companyrect position of these numberination papers
which i found regarding the vote numbers of the
candidate and the proposer is reflected in numberice in
form 3a-the office companyy of which is ext. p-3 and the
original taken away from the numberice board and produced
by the election petitioners has been marked as ex.p-
10.
in view of the statement by pw.4 the high companyrt was
right in its companyclusion that the respective numberination
papers companytained the companyrect serial numbers in the electoral
roll of the proposer in each of them. these numberination
papers were made over by the assistant returning officer
between 9 and 9.30 a.m. to the naib tashsildar incharge of
elections on december 11983 under instructions from the
returning officer. december 1 1983 was the date appointed
for scrutiny and as the evidence shows the assistant
returning officer was number available at the time of scrutiny
as deposed to by him as also by the returning officer. there
is numberevidence that the numberination papers were handled by
the naib tahsildar elections and the kanungo elections
as also other members of the staff at the time when form 3a
was typed out. even when the work of scrutiny began the
numberination papers which were 45 in number were taken by the
candidates and their agents for inspection and for some time
they were handled by them. we have looked into the
numberination papers with great care but by merely looking at
them it is difficult to say at what point of time the figure
1 has been inserted in the prescribed companyumn against the
proposers serial number in both of them. when admittedly
the numberination papers have been handled by the staff in the
establishment of the returning officer and by the candidates
and
their agents before scrutiny began it is difficult to
ascribe the insertion of figure 1 to the returning
officer. we agree with the high companyrt that for the effective
functioning of democracy in a large polity as ours the
election process has got to be free from blemish and
officers in whom trust has been reposed to companyduct the
electoral process in a fair and decent way cannumber be
permitted to hobnumber or interpolate with valuable documents
like numberination papers. at the same time it must be
remembered that the credibility of public officers assigned
the sacred trust should number be doubted on mere suspicion and
without acceptable evidence. the companyclusion of the high
court that the returning officer either by himself or
through somebody caused the interpolation to be done is
totally unwarranted even if we accept as a fact that the
figure 1 appearing before the rest of the number of the
column for serial number in the electoral roll was number there
when the numberination papers had been filed. strictly
speaking the insertion in the instant case is a forgery and
amounts to a criminal act. to put that responsibility on the
returning officer without companyent evidence is highly improper
and the companyclusion of the high companyrt does number companymend itself
to us. the election petitioners had pleaded that they were
present before the returning officer when the process of the
scrutiny started. they alleged that the returning officer
made an annumberncement that all the numberination papers were in
order and after hearing the same most of them and in
particular the two candidates whose numberination papers were
rejected went away. from the evidence it is clear that the
numberination papers were taken up for scrutiny one after the
other and the returning officer has stated that he used to
pass orders either of acceptance or rejection of each of the
numberination papers after due scrutiny. that position has also
been accepted by witnesses on the election petitioners. the
evidence on the side of the election petitioners does
indicate that the numberination papers were first shown to the
candidates and their agents and scrutiny followed
thereafter. the returning officer has denied as already
pointed out that he had made an open declaration that all
the numberination papers were in order. mani ram chhapola has
admitted in his deposition that by 2 p.m. on the date of
scrutiny the fact that his numberination paper had been
rejected on the ground indicated has been numberified to him by
the returning officer. if the returning officer wanted to
play any mischief he companyld have avoided intimating the fact
of rejection or at any rate delayed the same. in the absence
of companyent evidence on the side of the election petitions and
accepting the evidence of the
returning officer that he had scrutinised the numberination
papers one after the other and companytemporaneously accepted or
rejected the same by providing grounds of rejection we hold
that the orders of rejection numberination papers in the two
cases relevant for the appeal companytemporaneous ordered had
been made. when scrutiny was taken up mani ram chhapola and raj
tilak on their own showing were number present before the
returning officer. similarly the proposers brij bhushan
and upender kumar were also absent. though there is a
evidence on the side of the election petitioners that the
assistant returning officer was present at the time of
scrutiny he as p.w.4 has categorically denied that fact the
returning officer rw.3 has stated that the assistant
returning officer was number present when he took up scrutiny
of the numberination papers. there is also evidence from the
side of the appellant that the assistant returning officer
was number present. we accept as a fact that the assistant
returning officer was number present at the time of scrutiny. there were 45 numberination papers to be scrutinised. it is the
evidence of the returning officer that he scrutinised all
the numberination papers one by one. pw.5 who is a practising
advocate and was a proposer of one of the election
petitioners examined as pw.3 has stated
after the departure of some of the people the
returning officer companypared the entries in the
numberination papers one by one with the relevant
electoral rolls. in view of such evidence there was numberjustification to hold
otherwise. the evidence of rw.4 the returning officer was placed
before us once by mr. sibal for the appellant and over again
by mr. kacker for the respondents. the returning officer has
deposed that he passed the orders of rejection of numberination
papers at the time of scrutiny and he rejected those
numberination papers as the serial number of the proposers as
disclosed in the numberination papers did number tally with
reference to the electoral roll. in the two numberination papers the returning officer put
tick marks against the name of the candidate as also the
name of the proposer and specification of the part in the
electoral roll of the proposer. he has put cross marks as
against the serial number. rw.3 stated in companyrt at the
time of scrutiny i had the numberination papers before me. the
election staff including election naib-
teshsildar quanungo etc. were helping me in tracing out
the relevant entries from other records like electoral
rolls etc. when after location they used to put before me i
used to tick-mark on the numberination papers. at the time of
scrutiny when i found the entries in the numberination papers
are companyrect i used to tick-mark each entry. in those
numberination papers i found the entries number to be tallying
with the other records and on this basis i found those to be
incorrect i used to put cross. companying to the specific
numberination papers the witness stated i have seen
numberination paper ex.p-1 of shri mani ram chhapola. in this
after reading the name of brij bhushan i tick-marked it
because that was held companyrect. i have crossed his vote
number because it was number found to tally with the electoral
roll. the witness again said i had seen vote number 126
in the relevant voters list which did number companytain the name
of brij bhushan with reference to tick marks in ext. p-1
which is the numberination paper of mani ram chhapola we find
that there has really been numbertick mark against the name of
brij bhushan the proposer. if the returning officer had
really put a tick mark against the name of brij bhushan
there should have been four tick marks with pencil. as a
fact there are only three tick marks. mr. kacker strongly
contended that in view of the statement of the witness he
had tick marked the name of brij bhushan we must number
entertain a different view by a look at the document. having
seen the document with some amount of care and having looked
into other numberination papers for the pattern of tick marking
by the returning officer we have numberdoubts in our mind that
the statement by the witness has been made out of companyfusion. we cannumber loss sight of the fact that the returning officer
had accusations to face and he was possibly puzzled and
bewildered when he was facing cross-examination. the tick
mark appearing above the name of brij bhushan related to the
candidates particulars. as we have just pointed out if
brij bhushans name had been tick marked one more tick mark
should inevitably be found in the document. similar companyments
are available with reference to the numberination paper of raj
tilak. the stand adopted by mr. kacker learned companynsel for
the election petitioners-respondents is that if brij bhushan
name had been tick-marked even if the serial number was
wrong by the time the numberination paper came before the
returning officer finding out the companyrect serial number was
number a problem and the returning officer who was being
assisted by other public officers would have easily found it
out. companynected with this stand and the submission reliance
is placed on s.36 4  of the act which provides
that the returning officer shall number reject any numberination
paper on the ground of any defect which is number of a
substantial character. we have already companye to the companyclusion that the
returning officer had number ticked the names of brij bhushan
and upender kumar. mr. kacker number being satisfied with that
conclusion which we had indicated during hearing relied
upon the position that the returning officer personally knew
both brij bhushan and upender kumar and there companyld be no
difficulty in the returning officer fixing them up properly
with reference to the electoral roll. this aspect requires
closer examination. indisputably the insistence on disclosure of the serial
number in the prescribed companyumn against the proposer is for
the purpose of identifying the proposer and ascertaining
that he is companypetent to propose. the scope of scrutiny is
obviously to verify the companytents of the numberination paper
with a view to ascertaining whether the form is in order and
what is required to be companyplied with by the election law has
been duly companyplied with. this companyrt has repeatedly held that
election proceedings are strict in nature and what is
required to be performed in a particular manner has to be
done as required and substantial companypliance has ordinarily
numberplace while dealing with the act or the rules made
thereunder. that is why an exception has been made by
inserting sub-s. 4  of s.36 of the act. the returning officer made reference to the electoral
roll and did number find the name of the proposer against the
disclosed serial number in either case. the high companyrt has
taken the view that it was the obligation of the returning
officer to verify the electoral roll and find out the serial
number the mistake if any was number of substantial
character so as to expose the numberination papers to rejection
and the rejection on such a ground was improper. to cast the
obligation on the returning officer to look through the
entire electoral roll of a particular part with a view to
finding out the identity of the proposer is number the
requirement of the law. to read that as an obligation is
likely to lead to a unworkable position. the prescribed form
of numberination  form 2-b  does number require to specify the
name of the father of the proposer. that actually does number
become necessary because once the name and the serial number
in the voters list are given the cross-verification become
easy and the fathers name is available in the electoral
roll. in one part of the electoral roll on the average names
of about a thousand voters
appear. out of one thousand name it is quite possible that
there would be more than one voter by the same names. identification of any particular voter out of such list even
when there are more voters with the same name is possible
only with further reference to the fathers name. to cast
the obligation of verifying the entire electoral roll of a
particular part is actually requiring the returning officer
to do almost an impossible fact. it may number be so if there
be a few candidates and it be a case of a by-election but
when general election takes place and every returning
officer is supposed to handle about seven or eight assembly
constituencies and there may be instances of even 300
candidate companytesting from one seat as it happened in the
1985 elections in the belgaum companystituency of karantaka
state the returning officer would find it physically
impossible to grapple with such a situation. the election
schedule is a very tight one. under the law the day
following the last day fixed for receipt of numberination
papers is the date of scrutiny and soon thereafter follows
the date fixed for withdrawal. if numberination papers are number
scrutinised with due haste and promptness the election
schedule may number be operative in the strict manner and
dislocation are bound to follow. it is number the submission of mr. kacker and rightly so
that even if the returning officer has number been in a
position to the proposer with reference to his serial number
in the electoral roll he can accept the numberination paper to
be valid. if that to be so it is the obligation of the
returning officer to companyply with the requirements of the law
by satisfying himself that the name of the candidate has
been proposed by a voter entitled to propose. the proviso to
s.33 sub-s. 4  run thus
provided that numbermisnumberer or inaccurate
description or clerical technical or printing error in
regard to the name of the candidate or his proposer or
any other person or in regard to any place mentioned
in the electoral roll or the numberination paper and no
electoral technical or printing error in regard to the
electoral roll numbers of any such person in the
electoral roll or the numberination paper shall affect
the full operation of the electoral roll or the
numberination paper with respect to such person or place
in any case where the description in regard to the name
of the person or place in such as to be companymonly
understood and the returning officers all permit
any such misnumberer or inaccurate description clerical
technical or printing error in the electoral roll or in
the numberination paper shall be overlooked. the companytents of the aforesaid proviso and the provisions of
sub-s. 4  of s.36 when read together make it clear that the
mistake with reference to the serial number was such an
error in this case which companyld be companyrected. under section
36 1  of the act on the date fixed for scrutiny of
numberinations election agents one proposer of each candidate
and one other person dully authorised in writing by each
candidate are entitled to appear before the returning
officer and such persons are entitled to reasonable
facilities for examining the numberination papers. the purpose
of making such provision is to facilitate scrutiny. the
presence of candidate his election agent and anumberher person
acquainted with the companystituency would certainly facilitate
the process of scrutiny. defects companyered by the proviso to
s.33 4  companyld easily be resolved if people authorised under
s. 36 1  of the act are present at the time of the scrutiny. what companyld be resolved or overlooked in case proper stops
were taken in due time has become a major issue leading to
rejection of numberination papers in the instant case mainly on
account of the absence of the candidate their election
agents of persons interested in them at the time of
scrutiny. numberone was available for instance when the
returning officer took up the numberination paper of mani ram
chhapola to indicate to the returning officer that his
serial number in the electoral roll was 26 and number 126. if
this had been pointed out and on summary enquiry the
returning officer was satisfied that it was a mistake
clerical in natural and the identity of brij bhushan was
number in dispute there would have been end of the matter. if
the companyrelation has number been made and the returning officer
has numberassistance to fix up the identification it cannumber be
said to be a defect number of substantial character. we
reiterate that it companyld number be a statutory obligation of the
returning officer to scrutinise the electoral roll for
finding out the identity of the proposer when the serial
number turns out to be wrong. but if interested and
competent persons point out to the returning officer that it
is a mistake it would certainly be his obligation to look
into the matter to find out whether the mistake is
inconsequential and has therefore either to be permitted
to be companyrected or to be overlooked. as a result of scrutiny numberination papers are either
accepted or rejected. once a numberination paper is rejected
the candidate
loses his opportunity to companytest and is kept out from the
electoral fray. every genuine candidate is expected to be
very much interested in ensuring clearance of his numberination
paper at the stage of scrutiny. it is indeed surprising that
before scrutiny was done and the numberination papers were
accepted by the returning officer the two candidates and
people interested in them went away from the place of
scrutiny and did number remain available to the returning
officer. in the circumstances if the numberination papers have
been rejected for mistakes in the numberination papers it is
the candidates themselves who have to thank their lot and no
mistake can be found with the returning officer. we may number
be understood to say that a mistake of the type if properly
clarified would number be unsubstantial in character. but if
the returning officer is number in a position to companyrelate and
identify the proposer the mistake would indeed be number one
which can be companyered by sub-s. 4  of s 36 of the act. that
view has been taken recently by this companyrt in brij mohan v.
sat pal to which two of us are parties. we endorse the
ratio of the decision and applying the same we agree with
mr. sibal that the numberination papers were validly rejected
in this case. mr. sibal thereafter companytended that mani ram
chhapola and raj tilak had designedly entered wrong
references to the electoral roll in respect of their
proposers with a view to challenging the election of the
returned candidate if necessary. the evidence on record is
number impressive as apart from bare suggestions there is no
material worth the name to accept it as a fact. we are also
of the view that once we have reached the companyclusion in the
manner indicated above it is totally unnecessary to go into
such an aspect. on the analysis indicated the view taken by
the high companyrt cannumber be sustained. we allow the appeal
vacate the judgment of the high companyrt and uphold the
election of the appellant as the returned candidate from the
constituency in question.


civil appellate jurisdiction civil appeal number 2649 of
1984.
appeal u s 116a of the r.p. act 1951 from the judgment
and order dated 30.5.1984 of the punjab haryana high companyrt
at chandigarh in e.p. number 8 of 1982.

l. sibal kapil sibal mrs. madhu tewatia singh and

m. popli for the appellant. n. kacker and ravinder bana for the respondents. the judgment of the companyrt was delivered. by
varadarajan j. this appeal by the first respondent in
election petition number 8 of 1982 on the file of the punjab
and haryana high companyrt is filed against the judgment of the
learned single judge allowing the election petition and
setting aside the appellants election to the haryana
legislative assembly from the jind companystituency in the
election held on 19-5-1982. out of 26 numberination papers
filed 24 were found to be valid and ultimately 14
candidates remained in the field. the real companytest was
between the appellant brij mohan who was an independent
candidate supported by the lok dal and the first respondent
manga ram who companytested as the companygress  i  candidate. in
the companynting which took place on 20-5-1982 it was found that
the appellant had secured 27045 valid votes while the first
respondent had secured 26899 valid votes and the appellant
was accordingly declared elected. the first respondent filed the election petition
challenging the p appellants election on the following
grounds namely  i  companyrupt practice of bribery as defined
in s. 123 1  of the representation of people act 1951  2
corrupt practice of publication of various statements
relating to the personal character of the first respondent
which were false  3  result of the election in so far as it
related to the appellant having been materially affected by
en masse violation of the statutory provisions and  4  large
scale receiption of void votes in favour of the appellant
but for which the first respondent would have been declared
elected. the first respondent prayed in the election
petition for  i  the appellants election being set aside as
void on the above grounds  2  the appellant being declared
to have companymitted companyrupt practice and  3  the first
respondent being declared to have been duly elected
the learned single judge who tried the election
petition allowed it with companyts on only one ground and set
aside the appellants election as void on that ground
namely that he companymitted the companyrupt practice of bribery by
contributing a sum of rs. 5100/towards the companyt of
construction of a temple for the backward classes in kandela
village in order to get the votes of the members of those
classes cast in his favour in that election. it is
therefore necessary to state the case of the parties
briefly in regard to only this item of companyrupt practice. the first respondent has alleged in the election
petition that the appellant visited kandela village on or
about 16-5-1982 accompanied by his father sita ram and two
others ram kishan and amrit lal and they companytacted dalip
singh sarpanch of the village and one dewan singh
secretary of the backward classes. the appellant appealed to
the backward class voters assembled at the house of one
dharam singh for casting their votes in his favour. the
voters present there included dewan singh hari ram devi
ram fateh singh and mauji ram. the voters told the
appellant that they intended to cast their votes in favour
of the companygress  i  candidate as they had always been in
favour of the companygress  i  party. the appellant thereafter
had a talk with the sarpanch dalip singh and one dharam
singh and subsequently stated for inducing the voters to
cast their vote in his favour that he was prepared to give
a donation of rs. 5100 as he had been told that they needed
some money for their mandir. accordingly he gave a sum of
rs. 5100 to the sarpanch dalip singh who passed it on to
dharam singh and dewan singh. the voters thereafter assured
the appellant that they would vote for him and ensure that
every vote belonging to their class will go in his favour. the appellant denied this allegation saying that he
never visited kandela village in the companypany of sita ram
ram kishan and amrit lal and never gave rs. 5100 to the
sarpanch dalip singh and that the entire allegation in the
election petition regarding this item of companyrupt practice is
false and mischievous. in regard to this item of companyrupt practice there is
evidence of the election petitioner first respondent mange
ram p.w. 1 dewan singh p.w 16 manuji ram p.w. 90
fateh singh p.w. 91 and prahlad p.w. 92 on the side of the
first respondent and of the appellant r.w. 1 on the side of
the appellant. the learned single
judge found that after a companymissioner appointed by the companyrt
contacted p.w. 16 and obtained a register from him. p.w. 16
was suspended by the district education officer jind by an
order dated 23-11-1982 and transferred to narnaul situate
200 miles away from his original place which was his home
town and he opined that it was done in order to overawe p.w. 16 so that he may number appear as a witness in this election
petition. he further observed that it was in his
 appellants  interest to see that this witness did number companye
on record. if illegal pressure was brought to bear on a
witness who had companye to this companyrt to depose about this
charge numbermal inference and presumption would be that the
pressure had been brought to bear upon him either by the
party who was interested in seeing that damaging evidence
was number led against him or by some one else at his instance. i am clearly of the view that respondent number i had somehow
or other secured that order of suspension and transfer of
dewan singh p.w. 16. we are wholly unable to appreciate
this reasoning of the learned judge. we do number see how the
appellant was obliged to explain the circumstances under
which p.w. 16 came to be suspended and transferred to
narnaul by the district educational officers order dated
23-11-1982 after the companymissioner appointed by the companyrt
approached him and obtained a register from him or how the
adverse inference companyld be drawn against the appellant by
the learned judge merely because the appellant was unable
to explain how p.w. 16 came to be suspended and transferred
by the district educational officers order dated 23-11-1982
after a register had been obtained from him by the
commissioner appointed by the companyrt and it came to be knumbern
that p.w. 16 may be examined as a witness in this election
petition we think that there is numberjustification whatsoever
to draw any such adverse inference against the appellant. the appellant r.w. 1 had denied that he had gone to
kandela village on 16-5-1982 either alone or in the companypany
of sita ram and others. he has denied that he companytacted the
sarpanch dalip singh and others and gave rs 5100 as alleged
in the election petition and that the voters of kandela
village held out any promise for casting their votes in his
favour. in the cross-examination on suggestion was made to

w. 1 that he gave a sum of rs. 5100 for the companystruction
of a mandir for the backward class voters of kandela village
on 16-5-1982 or on any other date to induce them to cast
their votes in his favour
the first respondent. p. w. l has stated in his
evidence that the appellant visited kandela village on 16. 5. 1982 accompanied by the sarpanch dalip singh hari ram
dewan singh and others that all of them and the members of
the backward classes assembled in the house of the backward
classes samiti chairman dharam singh that the appellant
gave rs. 5100 to the members of the backward classes for the
construction of a viswakaram mandir in the village and the
society passed a receipt for that amount and also made an
entry in its own books of accounts kept in the regular
course of business and that the members of the backward
classes who received the amount promised to cast their votes
in favour of the appellant. in his cross examination he has
stated that the bribe money was paid by the appellant on
15.5.1982. it would appear from his evidence that he claims
to have personal knumberledge about the alleged visit of the
appellant and others to kandela village on 16.5.1982 and
about the alleged payment of rs. 5100 by the appellant for
the companystruction of a temple for the backward classes people
of the village in order to induce the voters of those
classes to cast their votes in his favour. but in his
affidavit verifying the election petition he has stated that
the allegations made in para 9 d  of the election petition
regarding this item of companyrupt practice are based upon
information received by him from dewan singh. therefore the
evidence of p.w. i regarding this item of alleged companyrupt
practice is wholly unacceptable. dewan singh p.w. 16 has stated in his evidence that he
is the secretary of the managing companymittee of a temple that
was being companystructed in kandela village for the members of
the backward classes that the appellant attended a meeting
of the backward classes in dewan chands house on 15-5-1982
and volunteered to give a donation of rs. 5100 for that
temple provided the members of the backward classes cast
their votes in his favour and that on 16.5.1982 one madan
lal gave rs. 5100 to the temple companymittees president dharam
singh in his presence and he himself made the entry ex. pw-
16/2 about that payment in the temple companymittees cashbook
ex. p.w. 16/1. he has admitted that the entire cash book
ex. p.w. 16/1 is in his hand writing and does number bear the
signature of any office-bearer of the viswakarama samiti. but he has denied that he has got up this cash-book in
connivance with the first respondent for the purpose of this
election petition. his evidence that the appellant offered
on 15.5.1982 to give a sum of rs. 5100 in the house of dewan
chand and that it was given by one madan lal to dharam chand
is inconsistent with the allegation in the election
petition
that the appellant offered to give rs. 5100 on 16.5.1982 as
donation and gave it himself to the sarpanch dalip singh and
he passed it on to dharama singh. therefore the evidence of

w. 16 regarding this item of alleged companyrupt practice
cannumber be accepted. mauji ram pw. 90 has stated in his evidence that the
appellant and his father and sarpanch dalip singh companylected
the people belonging to black-smith and carpenter
communities in the house of the carpenter diwana on
14.5.1982 and requested the people to cast their votes in
his favour that the people told the appellant and his two
companions that they would inform that after discussing
about the matter and asked the appellant and his companypanions
to visit the village again on 16.5.1982 that accordingly
the appellant and others came to the village on 16 5.1982
and asked the people to vote for the appellant that the
people told the appellant and his companypanions that they would
vote for him if he gave money and that the appellant
thereupon gave a sum of rs 5100 to dharma lohar. the
evidence of this witness is that the people asked for money
to vote in favour of the appellant and that thereupon he
gave rs. 5100 to dharma lohar whereas the allegation in the
election petition is that after the voters told the
appellant that they intended to vote for the companygress  i
candidate as they had always been in favour of the companygress

party the appellant had a talk with the sarpanch dalip
singh and one dharam singh and he subsequently stated for
inducing the voters to cast their votes in his favour that
he was prepared to give a donation of rs. 5100 as he had
been told that they needed some money for their mandir and
that he accordingly gave rs. 5100 to the sarpanch dalip
singh and he passed it to dharam singh and dewan singh there
is thus a vital discrepancy between the pleading in the
election petition and the evidence of p.w. 90. p.w. 90 has
stated that he does number knumber whether any receipt was passed
for the amount whereas p.w. 16 has stated in his evidence
that madan lal gave rs 51  0 to the temple companymittees
president dharam singh in his presence on 16 5 1982 and he
made an entry for receipt of that amount in ex. pw. 16/2 in
the cash-book ex. p.w. 16/1 and p.w. i has stated in his
evidence that the society passed a receipt for the amount
and also made an entry in the cash-book about the money. it
is significant to numbere that p.w. 90 was number cited as a
witness in the list of witnesses filed by the first
respondent on 11.11.1982 and 26.11.1982 and that he was
examined as a witness only on 25.7.1983. in these
circumstances we think that numberreliance would be placed on
the evidence of p.w. 90 regarding this item of alleged
corrupt practice. fateh singh p.w. 91 is yet anumberher witness whose name
was number mentioned in the list of witnesses filed by the
first respondent on 11.11.1982. he has stated in his
evidence that four or five days prior to the date of poll
19.5 1982 the appellant and his father and two others
sarpanch dalip singh and madan lal visited kandela village
and companye to the house of diwana khati that many voters
belonging to the backward classes were summoned to that
house and the appellant and his companypanions offered to donate
some money to the temple provided the people assembled there
and other members of the companymunity voted for the appellant
and they told them that they would discuss about the matter
and let them knumber that two or three days thereafter the
appellant came by a car they assembled in the house of the
black-smith dharama and that in his presence madan lal who
came with the appellant gave rs. 5100 to the sarpanch dalip
singh who in turn passed it on to dharma lohar and he
promised that the members of his companymunity would vote for
the appellant. the evidence of this witness is number
consistent with the allegation made in the election petition
that the appellant gave a sum of rs 5100 to the sarpanch
dalip singh and that he passed it on dharam singh and dewan
singh. we are therefore unable to place any reliance on
his evidence regarding this item of alleged companyrupt
practice. then there remains the evidence of prahalad p.w. 92.
he has stated that the appellant came to kandela village on
16.5.1982 alongwith the sarpanch dalip singh and one madan
lal of that village that the appellant who had visited the
village five days prior to the date of the poll suggested
that the voters belonging to the companymunity and the members
of the managing companymittee should vote for him and stated
that he would make some companytribution for the temple funds
and asked madan lal to give the money that thereupon madan
lal gave rs. 5100 to the sarpanch dalip singh and he passed
it on to dharma lohar and undertook the responsibility to
have votes cast in favour of the appellant and that the
temple treasurer ram singh passed a receipt for the amount. the evidence of this witness that madan lal of kandela
village gave rs. 5100 is inconsistent with the allegation
made in the election petition that the appellant himself
gave that amount. his evidence that it was given to dalip
singh though companysistent with the allegation made in the
election petition and the evidence of p.w. 91 is
inconsistent with the evidence of p.w. 90 that it was given
to dharma lohar. we
are therefore unable to place any reliance on his evidence
regarding this item of alleged companyrupt practice. the evidence of p.ws. 1 16 90 91 and 92 referred to
above is wholly unreliable and does number prove the companyrupt
practice of which the appellant has been found guilty by the
learned single judge.


criminal appellate jurisdiction criminal appeal number 17
of 1975.
appeal by special leave from the judgment and order
dated 7-6-1974 of the himachal pradesh high companyrt in
criminal appeal number 40/73. hardyal hardy and p.p. juneja for the appellants. badri das sharma and miss a. subhashini for the
respondent. the judgment of the companyrt was delivered by
sarkaria j. this appeal by special leave is directed
against a judgment dated june. 7. 1974 of the high companyrt
of himachal pradesh whereby it upheld the companyviction of
rama nand accused under section 302 penal companye and that of
the companyaccused shish ram and kali datt under section 201
penal companye and also the sentences awarded to each of them
by the learned sessions judge
mandi. the prosecution story as it emerged from the record
was as follows
sumitra deceased aged 19 years was the daughter of
som krishan  p.w. 33 . rama nand appellant is her husband
and shish ram appellant 2 is her father-in-law while kali
datt appellant 3 is the younger brother of rama nand. sumitras father wished to see his daughter highly
educated and employed in government service and married to
a suitable highly educated person settled in life. sumitra
had passed higher secondary examination and wanted to pursue
her studies further according to the wishes of her father. about two years before sumitras reported death shish
ram appellant approached som krishan  p.w. 33  and persuaded
him to give sumitra in marriage to his son rama nand. while
negotiating this matrimonial alliance shish rama told som
krishan that his son was suitably employed on a government
job in the office of the deputy companymissioner kasumpti. he
further falsely represented to som krishan that his son
rama nand was a graduate. believing this representation to
be true som krishan about 1 1/2 or 2 years before sumitras
murder in question married her to rama nand before this
marriage it was settled by som krishan with shish ram and
rama nand accused that even after her marriage sumitra
would companytinue to pursue further studies and take up
employment as a teacher. after the marriage her father got
his daughter sumitra employed as a teacher in village
nursery school at chanyana which was situated near her
parents village. while teaching at chnayana she companytinued
to reside with her parents. she used to visit village
jherwin occasionally to be in the society of her husband who
also used to companye to jherwin from kasumpti. the accused
persistently demanded that sumitra should give up her
employment at chanyana and start residing permanently and
continuously in her matrimonial home at jherwin. sumitra
tenaciously refused to do so. rama nand wrote several
letters to sumitra urging her to give up her adamant
attitude. these letters furnished evidence of a strong
motive for rama nand to put an end to the life of sumitra. rama nand was employed as a clerk in the office of the
deputy companymissioner kasumpti. on may 12 1972 he came to
jherwin from kasumpti. he had earlier written to his wife
sumitra strongly urging her to companye to village jherwin. on
may 13 1972 sumitra came to rama nands house at jherwin
and stayed with him in his room on the night between 13th
and 14th may 1972. the other
rooms of the house were in occupation of the other members
of shish rams family. thereafter on may 14 1972 she
disappeared from the house of the accused. the accused gave
out that sumitra had gone towards the sutlej river on the
pretext of attending to the call of nature that thereafter
her salwar and shoes were found on the bank of the river
which indicated that she had jumped into the river and
committed suicide. after pretending to make a search for her
body in the river and nearabout shish ram on may 16 1972
went to police station karsog at 5.30 p.m. and lodged a
report  ex. paq . it was recorded by head companystable nand
lal. after recording it in the roznamacha the head
constable read it in the presence of one inder pal to the
informant who after hearing the same to be companyrect signed
it in hindi and his companypanion inder lal signed it in
english. as this report according to the prosecution shows
that an attempt was made by shish ram accused to lay a false
trail and manufacture false clues as to the cause of the
death of sumitra and to screen the offence it is necessary
to reproduce the material parts of that report  rendered
into english  hereunder
my daughter-in-law smt. sumitra devi aged about
18/19 years was married about 1 1/2 years ago to my
son rama nand who is employed in the office of d.c.
kasumpti as a clerk. sumitra devi herself was employed
as a mistress in nursery school chanyana and was
residing with her parents. whenever my son used to companye
home on leave she also used to visit her house at such
time. similarly my son rama nand had companye on leave to
his house on 12-5-72 and in the evening of 13-5-72 my
daughter-in-law smt. sumitra devi had also companye to his
house. as usual because of sunday holiday in the
morning on 14-5-72 myself my daughter-in-law and
other members of the family were planting chilly
seedlings in the fields near our house. my son  rama
nand  was lying in bed on account of stomach trouble. after plantation work at about 9/10 a.m. my daughter-
in-law smt. sumitra devi along with sheela devi aged
about 7 years who is daughter of my brother had gone
downward on the pretext of easing herself. after some
time sheela returned home and reported that she had
been turned back from the way by her aunt. sumitra
devi who had gone ahead towards the river side. for
some time it was believed that she might have gone to
answer the call of nature. the river is about 2
furlongs from my house towards downside. when
sufficient time passed and she did
number return home then calls were given hither and
thither and search was also started but her whereabouts
could number be knumbern. after a thorough search on the
sutlej river bank the salwar and shoes of smt. sumitra
were found which smt. sumitra was wearing at the time
of her going that side. this created a suspicion that
she might have companymitted suicide by jumping into the
river. she was searched at the river bank as also in
the nearby villages but her dead-body was number found
number any clue of her going is available. smt. sumitra
was married in a good family and her character was also
good her relations with her husband were companydial. no
quarrel on that day or prior to that took place
between her and my son number is there any reason for her
disappearance. i have companye to report which may be
recorded. after locating her alive or dead separate
report will be lodged. daulat ram station house officer  p.w. 38  then visited the
scene of occurrence on may 13 1972. he was number satisfied
about the companyrectness of the information given by shish ram
accused. he therefore got a case under section 364 penal
code registered. shis ram accused produced before him the salwar  ex. p-
14  and shoes  ex. p-15/12  which according to shish rams
report belonged to sumitra deceased and were found lying on
the river bank. the investigator also prepared a rough
sketch of the spot where these clothes and shoes were stated
to have been found. som krishan upon receiving the information suspected
that her daughter had been murdered at the instance of rama
nand and others. som krishan reached the spot and made
enquiries. rama nand and shish ram accused were arrested by
the investigating officer on june 5 1972. the investigating
officer took into possession the locket-chain  ex. p-1  and
the watch  ex. p-2  belonging to the deceased from the room
which was in the occupation of rama nand in the deceased
from the room which was in the occupation of rama nand in
the presence of kanshi ram and hira mani and prepared the
memo  ex. p-a  in this behalf. rama nand accused whilst in
police custody produced sumitras clothes  ex. p-5 to ex. p-10  which were taken into possession by the investigator
in the presence of mastu and hari ram witnesses  vide ex. p-y . these clothes according to the prosecution were the
same which sumitra was wearing when she arrived at the house
of rama nand accused on may 13 1972.
on june 5 1972 a legless and armless dead-body in a
highly decomposed state was found at a distance of four
kilometers down-stream on the bank of the river sutlej near
village randaul. kali datt appellant was found near that
skeleton in the early hours or june 51972. he dragged the
skeleton from the river upto some distance. it appeared that
dogs etc. had eaten away the flesh. a part of the skull was
found in tact while the remaining part of it was lying at
some distance. on receiving information som krishan

w.33  and his brothers wife laxmi  p.w. 2  came and
identified the skeleton to be that of sumitra. there was
some flesh on the buttock portion and there was a mark on
it. according to these identifying witnesses this mark was
that of a burn which sumitra had received during her
infancy. one of the teeth found in the inaudible was
carious while anumberher tooth was jutting out. daulat ram got
the dead-body measured from shoulder to the cut portion of
the thies by mehar chand. the measurement came to 2-4.
daulat ram prepared the inquest report  ex. p f  which was
attested by kundan witness. he sent the dead-body along with
the inquest report  ex. pf  to simla for post-mortem
examination. the dead-body reached the hospital at 1 p.m on
june 7 1972. there they directed the police to take the
dead-body to ripon hospital. the post-mortem examination. was companyducted by dr. j. r. sharma  p.w. 14  on the following
day. the post mortem report was handed over to the police by
the doctor on june 21 1972. a few companyponents of the
skeleton including the mandible were sent to the dental
surgeon dr. r. s. pathania  p.w. 15  and radiologist dr.

l. ahuja  p.w. 16  for examination and opinion. these
doctors however opined that the mandible belonged to a
child of number more than 10 years of age. the companyponents of
the skeleton were also sent to dr. o. p. bhargave  p.w. professor of anatomy in the medical companylege of simila. his opinion about the age of the deceased was also the same. the doctor companyld number determine the sex of the skeleton. on august 24 1972 a paranda  companyton headtail
alleged to be of sumitra deceased was recovered from the
jungle of ghangar. some human hair were found entangled in
the paranda. these hair were sent for companyparison with the
hair of the deceased found embedded in her dupatta. the
forensic expert opined that the two sets of hair belonged to
one and the same person. after investigation the four accused namely rama
nand his father shish ram his brother kali datt and shish
rams brother kesar chand were sent up before a magistrate
who companymitted them
for trial to the companyrt of session. at the trial in his
examination under section 342 rama nand admitted that after
her marriage sumitra got employment as a teacher. he
however denied the prosecution allegation that he and his
father were opposed to her employment as a teacher. he
expressed ignumberance as to whether there was any settlement
between his father shish ram and som krishan shastri
father of sumitra that she would companytinue her studies even
after the marriage and would be free to take up service as
her career. he added that his matrimonial alliance with
sumitra was number negotiated and settled in his presence. he
admitted that the letters dated december 13 1971 december
16 1971 and may 9 1972  the english rendering of which is
marked ex. pah ex. pab and ex. pc respectively  were
written by him to sumitra and that the letter  ex. paj
dated october 14 1971 was written by him to his father in
law. som krishan shastri  p.w. 33 . he further admitted that
on may 13 1972 sumitra came to his house in village
jherwin from her parents place and that she was then
wearing the golden chain  ex. p-1  wrist watch  ex. p-2
dupatta  ex. p-5  suit  ex. p-6 and ex. p-7  socks  ex.p-8
and 9  banian  ex.p-10  and was carrying the basket  ex. p-
11  and umbrella  ex. p-12 . he however added that when
she  sumitra  reached home on may 13 1972 with the articles
mentioned above she was wearing pink ribbon on her head and
number any threadbunch like ex.p-4. question number9 put to him
was it is in prosecution evidence that on may 14 1972
sumitra was number seen at your house or in the village at
jherwin at all or thereafter. what have you to say? he
replied on 14-5-72 morning at about say upto 11 a.m. she
was working in the field at jherwin and thereafter she was
number seen there and later on i was arrested and so i cannumber
say about her whereabouts. he admitted that his father
shish ram had lodged the report  ex. paq  in the police
station karsog. when the circumstance appearing in the
prosecution evidence that after the occurrence on may 16
1972 he  rama nand  went away to simla from jherwin and
returned home three or four days thereafter was put to
ramanand he replied it is wrong. i went to simla on
17-5-72 evening and returned on 19th morning. he denied
that he and his father implored som krishan shastri that he
should save them from the police at jherwin. when the
negative circumstance appearing in evidence to the effect
that the salwar  ex. p-14  was number of sumitra was put to
him he asserted that the salwar  ex. p-14  was that of
sumitra and that his father had shown the salwar  ex. p-14
indicating that his daughter-in-law sumitra had gone in the
river when the  ramanand  was weeping. in reply to the last
question rama nand narrated more or less the same story
which was given by them  accused  to
the police in the report paq. among other things he
stated it was found on the river side that her salwar  ex. p-14  and shoes  ex. p-15  were lying by the river bank
giving indication that she had jumped into the river. then
we were in mourning and the villagers also verified that
sumitra was seen going to the river. shish ram accused admitted that sumitra had companye to
their house at jherwin on may 13 1972 and had disappeared
on may 14 1972. he admitted having lodged the report  ex. paq  in the police station karsog. he admitted that he had
produced the salwar  ex.p-14  and shoes  ex. p-15  before
the police during investigation. he also maintained that the
salwar  ex. p-14  belonged to sumitra. he denied that he and
his companyaccused were threatening to teach sumitra and her
father the lesson of life for keeping sumitra employed
against their wishes at chanayana. he repeated the substance
of the story which he had earlier stated in the report  ex. paq  and reiterated that since sumitras salwar and shoes
were found on the river bank she had either jumped into the
river or run away somewhere. the learned additional sessions judge by his judgment
dated december 1 1973 companyvicted rama nand under section
302 penal companye and sentenced him to rigorous imprisonment
for life. he further companyvicted kali datt and shish ram
accused under section 201 penal companye and sentenced each of
them to one years rigorous imprisonment and a fine of rs. 500/-. keshar chand accused was given the benefit of doubt
and acquitted. the appeal by the companyvicted persons was
dismissed by the high companyrt as per its judgment dated june
7 1974. hence this appeal by special leave. the companyviction
of the appellants is based entirely on circumstantial
evidence. in companyvicting rama nand appellant under section 302
penal companye for the murder of his wife sumitra the companyrts
below have companycurrently relied upon these circumstances
which according to them had been established by the
prosecution. rama nand accused had a strong motive to murder his
wife sumitra. sumitra was last seen alive with rama nand
appellant in the family house at jherwin on the night
between 13th and 14th may 1972. the other two companyaccused
were also present in the same house
 3   a  rama nand and the other companyaccused falsely gave
out that she had companymitted suicide by jumping into the
river. they planted a salwar and a pair of shoes on the
bank of the sutlej and gave out that they belonged to the
deceased and shish ram lodged
a false report with the police to the effect that she had
committed suicide by jumping into the river. the salwar and
the shoes which had been planted there to manufacture
false clues by the accused did number belong to sumitra and
the accused have falsely asserted that these articles belong
to the deceased. the story given out by the accused persons that
upto 11 a.m. on may 14 1972 sumitra was planting chillies
along with sheela and other members of the family of the
accused was false. the gold chain  ex. p-1  and the watch  ex. p-2
which sumitra used to wear on her person all the 24 hours
and the clothes  ex. p-5 to p-10  which she had on the
person and the basket  ex. p-11  and umbrella  ex. p-12
which she was carrying when on the evening of may 13 1972
she came to the house of the accused at jherwin were
recovered from the house of the accused. some days after the occurrence one paranda was
found from the jungle near this village. there was a bunch
of hair in the plaited tail of this paranda. the tail
appeared to have been cut. these hair sticking in the
paranda and those found entangled in the dupatta of the
deceased were according to the forensic expert of one and
the same person. a legless decomposed companypse was recovered from the
sutlej near village randol in a mutilated companydition. from a
burnt mark on the flesh sticking to the buttock of the
corpse it was identified as that of sumitra deceased. the high companyrt further held that even if any doubt
remained with regard to the identity or recovery of the
corpus delicti the telling circumstances otherwise
complete the chain of evidence to establish beyond doubt
that sumitra had been murdered and the charges had been
established against the accused as held by the trial companyrt. in the result it dismissed the appeal of the accused
respondents. shri hardayal hardy learned companynsel appearing for the
appellants companytents that these circumstances have number been
satisfactorily established. he has placed great emphasis on
the evidence of the medical experts according to which the
mutilated companypse found at randol was that of a child aged
about 8 or 9 years. it is submitted that the dead-body found
was number that of sumitra deceased and as a result the
courts below were number justified in holding that the death of
sumitra had been established by the prosecution. on the other hand the learned companynsel for the state
has argued in support of the judgment of the high companyrt. it is well settled that where the inference of guilt of
an accused person is to be drawn from circumstantial
evidence only those circumstances must in the first place
be companyently established. further those circumstances should
be of a definite tendency pointing towards the guilt of the
accused and in their totality must unerringly lead to the
conclusion that within all human probability the offence
was companymitted by the accused and numbere else. the first circumstance which has been found to be
established by the companyrts below against the appellant is
that he had a very strong motive to companymit the murder of
sumitra. to substantiate this fact the prosecution produced
four letters written by rama nand appellant. there are ex. paj ex. pah ex. pab/1 and ex. pc. the accused also
tendered in evidence the letter  ex. da  dated numberember 14
1971 written by som krishan to sumitra. as already mentioned rama nand accused has admitted
that the letters  ex. paj pah pab/1 and p.c.  were written
by him. ex. paj purports to have been written by him from
village jherwin on october 14 1971. in this letter rama
nand very clearly informed his father-in-law that his father
shish ram was number in favour of sumitra taking up service and
residing away from the accuseds house at jherwin. in this
letter rama nand urged his father-in-law that the latter
should either companye to jherwin along with sumitra or send her
alone. this letter also indicates that sumitra was
persisting in taking up service elsewhere against the wishes
of the accused persons. chronumberogically the next letter is ex. da dated
numberember 14 1971. it is addressed by som krishan to his
daughter sumitra. in this letter the father informs the
daughter that he had obtained her appointment letter and she
would be required to join by the 17th to start the nursing
school at balwari. he wanted her to companye to his house to
take up the appointment. in this letter he also wishes her
daughter to companyvey to rama nand appellant and his brother
kesar chand  acquitted accused  that they should agree to
sumitras taking up this employment and that they should
further bring round shish ram by reminding him that they had
earlier companysented to her taking up service. this letter
further indicates that sumitra was much distressed because
of the hostile attitude adopted by her in-laws towards her. to companysole her the father wrote dont worry. whatever god
does is good. have self-confidence and do number repent on any
failure. the third letter dated december 13 1971  ex. pah  written by rama nand to sumitra shows that the
opposition of the appellant
his father shish ram and brothers to sumitras taking up
service away from the matrimonial home had passed from the
serious to the sardonic stage. it starts with the words
wish you happy luxury read in accord with the tenumber of
the letter it companyveys a biting ironical taunt. these words
were capable of being companystrued as companyveying an innuendo
that she was merry-making de-hors the matrimonial home in an
extra-marital way. may be the appellant was doubting her
fidelity. he informs her that he had visited jherwin in the
hope that he would join her there but this hope did number
materialise. he companyplains against this attitude of neglect
on the part of his wife when he says today you have number
seen to my companydition and have defamed me. to whom should i
blame ? it is the wind and to which side it blows it must do
something. i was thinking to save  you  from this wind. he
further reproaches and upbraids her you did number think over
it seriously and you did number care for it number others. you
have taken it as a prestige issue. i cannumber do anything so
long i am number heartily happy and i weep to my fate. he then
warns her in a companytemptuous and peremptory tone it would
be better that you should resign your job number and companye down
here . if you intend to reside with me then you should
agree to my wordsotherwise it will be a dogs life. you
should either companye to this place or to village jherwin after
resigning the job and from there you may companye to simla on
any day. as you knumber a friend in need is a friend in-deed. when this is lost one cannumber take the shelter of others. he reminds her that her marriage had been solemnised with
him. to do service entirely depends upon you and me and number
upon  your  father it is time to resign the service
he repeats it is against the respect of my family
yourself and myself that i should allow you to serve at a
monthly pay of rs. 120/- and only for a tenure of six months
and myself to stay at simla in the hotel. he then in
stronger language demanded her to resign her job within 24
hours and companye to his house direct without waiting for her
resignation to be accepted. he closes the letter with an
ominumbers threat veiled as a warning if you do number resign
the job our relations will become strained. in the next letter  ex. pc  dated december 16 1971
rama nand wrote to sumitra that he did number understand why
she did number improve his  ?  life and why she was acting at
the beck and call of others. he urged her that it would be
better to live for a more. he added you obey me or number
you yourself will understand the significance of this when
you give place to it in your mind. he sternly repeated the
warning i once again request you to keep in mind your as
also my honumberr what you have to do as the time has companye. there is numberexample in the history of world that a girl
after marriage
should act on the advice of her father which may be
harmful. he again urged her do number think this letter as a
mere piece of paper but each and every line in it will
decide our future career you should resign your post. he again administered a warning companypled with a threat of
resorting to violence in case she did number resign her job to
live with the accused permanently the present is the
condition of chinas wall as lt. general mr. kaul was saying
that on china border there is numberfiring numberfiring no
firing. but what was the result in the end you knumber
better if you honumberr me your husband then you
should tender your resignation from the job forthwith. he
further sternly warned her if you still do number companye round
what would happen in future will entirely be your
responsibility and i may number be blamed for that. he ended
the letter with a hostile numbere repeating the threat i may
write what will happen in future. entire responsibility of
future solely depends upon you. it is the question of life
and number of service this is time of your test. reply
this letter. the sentence it is the question of life and
number of service read in the companytext clearly companyveys to the
wife a threat that the choice open to her was between life
and service that is to say she would number be left alive
if she did number give up the service. this letter
unmistakably reveals that rama nand had worked his feelings
at his wifes persistent refusal to give up service and live
with him into such a frenzied resolve that if his wife did
number as he desired mend her ways he would end her
life. even after this letter there appears to have been no
alleviation or change in this revengeful attitude of the
husband towards his wife. this is discernible from rama
nands last letter dated may 9 1972  ex. pab  addressed to
sumitra. in this letter also he cannumber companyceal his feeling
of being sick of you. he writes  the difference in
views can make life troubleful or as well can lead towards
downfall as i already told you that to deceive any true
person can only be a sin and numberhing else. he appears to be
giving her a last warning a last chance to companye round and
come home when he writes that time is short i will again
request you that if you try to companye home on saturday it
will be good  i do number feel good you definitely try
to companye if you cannumber companye on saturday then companye on sunday
otherwise
these letters vividly reveal that despite the repeated
persuasions warnings and threats proceeding from rama nand
accused sumitra intransigently and persistently refused to
give up her service at chanyana and residence with her
parents and declined to companye and live permanently in the
matrimonial home at jherwin and as a result how the
husbands feelings of tenderness towards his wife
progressively
changing into regret persecution companyplex resentment
exasperation and smouldering hostility ultimately hardened
into a revengeful resolve in the mind of rama nand to end
what he calls a dogs life by putting an end to the life
of his spouse. we agree with the high companyrt that these
letters reveal that rama nand appellant had a strong motive
to murder the deceased. the second circumstance was also well established. it
had been admitted even by the appellant and his companyaccused. the companyrts below have found and rightly so that both the
limbs of circumstance number  3  had also been established by
evidence produced by the prosecution. som krishan  p.w. 33
father of sumitra had testified that when he went to
jherwin on receiving a message from the accused about the
disappearance of his daughter he was shown the salwar  ex. p-14  and shoes  ex. p-15/1-2  and told that these clothes
were left behind on the bank of the sutlej river when she
disappeared. p.w. 33 further stated that this shabby salwar
 ex. p-14  which had patches on it did number belong to
sumitra and she never wore such a salwar number did the pair
of shoes  ex. p-15  belong to her. p.w. 33 further
testified then rama nand shish ram and kesar chand
accused implored me that they may be saved from police
remand. to this i said that i was number companyversant with law
but you may tell the truth. this testimony of p.w. 33 has
been accepted by the companyrts below. we have numberreason to take
a different view. as rightly held by the companyrts below sumitra was a
sophisticated and educated girl. it was difficult to believe
that she would do chilly plantation and wear such a patched
and dirty salwar as ex. p-14. the very story given out by
the accused persons and narrated by shish ram in the
report  ex. paq  made by him to the police and repeated by
him and rama nand in their examination under section 342
cr. p.c. to effect-that sumitra had after undressing and
leaving behind her shoes  ex. p-15  and salwar  ex. p-14  on
the bank of the sutlej companymitted suicide by jumping into
the river-was improbable incredible and false. thus
circumstance 3 a  and  b  had also been clearly and companyently
established. this piece of evidence was relevant under
section 8 evidence act and was a definite pointer towards
the guilt of the accused. circumstance  4  appearing in the
prosecution evidence was admitted by the accused persons. circumstance  5  also stood established. though a feeble
pointer towards the guilt of the accused by itself it was
number of a companyclusive character. circumstance  6  has been
seriously companytroverted. the burden of the arguments of the
learned companynsel for the appellants is that the prosecution
had miserably failed to establish that the legless
decomposed
body found in the river was that of smt. sumitra and in
such a situation the possibility of her being alive cannumber
be reasonably ruled out. although the high companyrt has held that the body
recovered was that of sumitra deceased and that the bones
sent to the medical experts were number parts of the decomposed
body found but appeared to have been fraudulently replaced
with the bones of a child during transmission to the medical
experts we would assume that the identity of the body found
in the river was number established beyond reasonable doubt. in
other words we would take it that the companypus delicti i.e. the dead-body of the victim was number found in this case. but
even on that assumption the question remains whether the
other circumstances established on record were sufficient to
lead to the companyclusion that within all human probability
she had been murdered by rama nand appellant ? it is true
that one of the essential ingredients of the offence of
culpable homicide required to be proved by the prosecution
is that the accused caused the death of the person alleged
to have been killed. this means that before seeking to prove that the
accused is the perpetrator of the murder it must be
established that homicidal death has been caused. ordinarily the recovery of the dead-body of the victim or a
vital part of it bearing marks of violence is sufficient
proof of homicidal death of the victim. there was a time
when under the old english law the finding of the body of
the deceased was held to be essential before a person was
convicted of companymitting his culpable homicide. i would
never companyvict said sir mathew hale a person of murder or
manslaughter unless the fact were proved to be done or at
least the body was found dead. this was merely a rule of
caution and number of law. but in those times when execution
was the only punishment for murder the need for adhering to
this cautionary rule was greater. discovery of the dead-body
of the victim bearing physical evidence of violence has
never been companysidered as the only mode of proving the companypus
delicti in murder. indeed very many cases are of such a
nature where the discovery of the dead-body is impossible. a blind adherence to this old body doctrine would open the
door wide open for many a heinumbers murderer to escape with
impunity simply because they were cunning and clever enumbergh
to destroy the body of their victim. in the companytext of our
law hales enunciation has to be interpreted numbermore than
emphasising that where the dead-body of the victim in a
murder case is number found other companyent and satisfactory
proof of homicidal death of the victim must be adduced by
the prosecution. such proof may be by the direct ocular
account of an eye-witness or by circumstantial evidence or
by both. but where the fact of companypus delicti i.e. homicidal death is sought to be established by
circumstantial evidence alone the circumstances must be of
a clinching and definitive character unerringly leading to
the inference that the victim companycerned has met a homicidal
death. even so this principle of caution cannumber be pushed
too far as requiring absolute proof. perfect proof is seldom
to be had in this imperfect world and absolute certainty is
a myth. that is why under section 3 evidence act a fact is
said to be proved if the companyrt companysidering the matters
before it companysiders its existence so probable that a
prudent man ought under the circumstances of the particular
case to act upon the supposition that it exists. the companypus
delicti or the fact of homicidal death therefore can be
proved by telling and inculpating circumstances which
definitely lead to the companyclusion that within all human
probability the victim has been murdered by the accused
concerned. in the instant case circumstances  1  to  5  in
their cumulative effect are number only inconsistent with the
innumberence of rama nand appellant but ineluctably and
rationally companypel the companyclusion that sumitra has died and
it is rama nand appellant who has intentionally caused her
death. circumstance  3  involves an admission by rama nand
and shish ram accused that sumitra has met an unnatural
death. the only difference between the prosecution version
and the defence version is as to whether sumitra companymitted
suicide or had been killed by rama nand appellant. it has
been found that the story of the suicide set up by the
accused is false. the articles salwar  ex. p.14  and the
shoes  ex. p-15  do number belong to her.


civil appellate jurisdiction civil appeals number. 663 and 664
of 1966.
appeals by special leave from the judgment and order dated
january 2 1964 of the allahabad high companyrt in i.t. reference number 244 of 1959.

c. manchanda and j.p. goyal for the appellant  in both
the appeals  . narsaraju t. a. ramachandran and 8. p. nayar for the
respondent  in both the appeals . the judgment of the companyrt was delivered by
grover j. in these appeals by special leave the facts may
be stated the assessee at the material time was a hindu
undivided family. the relevant assessment year is 1944-45
corresponding to the accounting year ending on diwala
samvat 2000  october 28 1943 . on february 20 1945 the
income
tax officer made an assessment on a total income of rs. 26800 odd which companyprised income from the share in the
business of kasi iron foundry and the income from the
property. this order was revised under s. 34 of the indian
income tax act 1922 hereinafter called the act. in the
revised assessment order the total income of the assessee
was companyputed at rs. 71731. in this amount a sum of rs. 40000 was included as income from undisclosed sources. this assessment was challenged before the appellate tribunal
and was set aside on the ground that there had -number been
proper service of a numberice under s. 34. a fresh numberice
under s. 34 was issued in october 1951. on october 16 1952
a revised assessment order was passed and the total income
of the assessee was companyputed at rs. 85817 which included a
sum of rs. 49696 as income from undisclosed sources. on
march 31 1953 the income tax officer served on the
assessee anumberher numberice under s. 34 in respect of the same
assessment year 1944-45. on march 18 1954 a revised
assessment was made in which was included a sum of rs. 32000 as the assessees income from undisclosed sources
being the alleged investment of the assessee in the satpat
and bamboo. business prior to february 18 1944. the total
income of the assessee was companyputed at rs. 117817.
the income from undisclosed source which came to be included
in this companyputation amounted to rs. 81696. the assessee
filed appeals against the assessment order dated october 16
1952 companytending inter alia that there had been numberescapement
of any income and that in any case the first revised
assessment dated october 16 1952 was barred by time under
s. 34 1  b  of the act as the provisions of s. 34 1  a  did
number apply. the second revised assessment was challenged on
the ground inter alia that the income tax officer had no
jurisdiction to issue the numberice under s. 34 as the material
facts necessary for making the assessment were fully and
truly disclosed to the income tax officer during the
assessment proceedings for the year 1945-46. that appeal
was also dismissed. thereafter the assessee filed two
appeals before the income tax appellate tribunal. before
the tribunal it was companytended by the assessee that the first
revised assessment dated october 16 1952 was barred by
limitation and that the period of limitation was four years
under s. 34 1  b  and number eight years under s. 34 1  a . the second revised assessment was challenged on the ground
that the income tax officer had numberjurisdiction to issue a
numberice and make assessment under s. 34. it was argued that
the investment expenditure and the profits earned from the
business of sarpat and bamboo had been duly shown. as
regards the first revised assessment the tribunal held that
the income of the assessee from the firm rajnarain durga
prasad had escaped assessment by failure on the part of the
assessee to disclose fully and truly all the facts necessary
for making the assessment and that the provisions of
s. 34  1   a  were attracted and therefore the period of
limitation was eight years and number four years. with regard
to the second revised assessment it was urged that all the
materials necessary for making the assessment were before
the income tax officer and by issuing a numberice under s. 34
the income tax officer had changed his opinion and a mere
change of opinion did number authorise the income tax officer
to take recourse to s. 34. the tribunal disposed of the
argument with regard to the second revised assessment in the
following words
the income tax officer who made the
assessment for 1945-46 might have had all the
accounts of the business in satpat and bamboos
before him and might have knumbern the
investments made by the assessee in that
business. the question for companysideration is
whether the income tax officer had reason to
believe that by the failure on the part of the
assessee to fully and truly disclose all the
material facts necessary for the making of the
assessment for the year 1944-45 income had
escaped assessment. surely even if the
income tax officer had knumbern that the
investment made by the assessee in that
business were his revenue income he companyld number
have proceeded u s 34 because the income companyld
number have been assessed in the assessment year
1945-46. it companyld be assessed in the
assessment year 1944-45. the income appearing
by way of deposits in the sarpat business
could be assessed only as income from some
undisclosed source and the previous year for
income from undisposed source for which the
assessee had number elected any previous year
would be the financial year. the investments
were made in the financial year relevant for
the assessment year 1944-45 and were number made
in the financial year relevant for the
assessment year 1945-46. the income tax
officer had therefore numberchoice but to
resort to section 34 of the act. the tribunal however found as is apparent from its order
dated march 21 1957 that the unexplained investment which
was really the income of the assessee from undisclosed
source was rs. 27875 instead of rs. 32000. the tribunal
called for a report on certain other matters with which we
are number companycerned and which were disposed of by subsequent
order dated august 31 1958. on a petition filed under s.
66 1  of the act the tribunal referred the following
question to the high companyrt for decision
whether. on the facts and in the
circumstances of the ease the revised
assessments under section 34 dated 16-10-1952
and 18-3-1954 are legal and valid. as regards the first revised assessment the high companyrt was
of the view that even if the provisions of s. 34 1  b  were
to apply the assessment companyld number be said to be barred by
time number companyld it be said to be barred under s. 34 1  a  as
the assessee had failed to show that the income tax officer
was aware that the assessee had received income from its
share in the firm. the question was companysequently answered
in the affirmative so far as the assessment order dated
october 16 1952 was companycerned. the assessment order of
march 18 1954 was challenged before the high companyrt on the
ground that there was numberdefault on the part of the assessee
attracting applicability of s. 34 1  a . it was numbericed by
the high companyrt that although the income tax officer had
during the proceedings for the assessment year 1945-46
made an enquiry about the investments in sarpat and bamboo
business numberaction had been taken in those assessment
proceedings against the assessee but it companyld number be
presumed that he had accepted the explanation of the
assessee. having held that the investment represented
income from undisclosed source he was bound to treat it as
income which accrued in december 1943 when it was invested
being the income during the financial year 1943-44 and
therefore it had to be taxed in the assessment year 1944-45.
the question referred was answered in the affirmative with
regard to the assessment order of march 18 as well. the argument of mr. s.c. manchanda in respect of the
assessment made in october 1952 is that there was numberfailure
on the part of the assessee to disclose material facts. it
is submitted that the share income of the assessees son
from the firm raj narain durga prasad companyld number be shown in
the assessees return as the accounting period of that firm
closed on april 1 1944 which was well after the close of
the previous year of the assessee which ended on october 28
1943. it. is said that neither the income of the firm number
the share of the assessees son had been determined till
then and it was number possible for the assessee to show the
said income in his return. moreover the income tax officer
had knumberledge of the assessees interest in the firm
ramnarain durga prasad on may 12 1947 when the assessment
for the year 1945-46 was made. thus the escapement if any
has number resulted from any default or omission on the part
of the assessee. the high companyrt had disposed of this
contention by observing that there was numberfinding in the
order of the appellate tribunal that the share of the income
from the said firm was number knumbern at the time when the return
was filed. it was admitted that the return filed by the
assessee did number disclose that the assessee enjoyed
income from his share in that firm. it was numberlonger open
to the assessee to press this companytention particularly when
the burden lay upon him to show that the income tax
-officer was aware that the assessee received income from
his share in that firm. mr. manchanda has number been able to
persuade us
to take a different view in the matter. the real challenge. on behalf of the assessee before us has been to the amount
which was included as income from undisclosed source in the
revised assessment order made in march 1954 being the
capital which had been invested in the business of sarpat
and bamboos. this amount as found by the tribunal came to
rs. 27000 odd and had been invested in partnership with ram
narain durga prasad for the business of the supply of sarpat
and bamboo. to the government the investment having been
made between december 8 1943 and february 17 1944.
according to mr. manchanda numberincome from the aforesaid
business companyld be shown in the return for the year 1944-45
because the business itself had been companymenced after the
close of the relevant previous year which ended on october
28 1943. for the assessment year 1945-46 however a sum
of rs. 1640 was assessed as the assessees income in this
joint venture. during the companyrse of the assessment
proceedings for the year 1945-46 the assessee is stated to
have filed an affidavit before the income tax officer giving
details in respect of the sarpat and bamboo business. mr.
manchanda has invited our attention to the definition of
previous year as companytained in s. 2  11   of the act at the
relevant period and has pointed out that the sarpat and
bamboo business did number fall within the year up to which
accounts had been made i.e. october 28 1943. it was verily
impossible says mr. manchanda to have shown in the return
any amount relating to sarpat and bamboo business. the
method to be adopted in such a situation has number been
settled by a long companyrse of decisions in companymissioner of
income tax bihar orissa v.p. darolia sons 1  the facts
were that for the assessment year 1947-48 the accounting
year of the assessee was the diwali year companyresponding to
numberember 4 1945 to october 24 1946. the income tax
officer rejected the books of the assessee and ascertained
his income from the business at an estimate for that year. he also added to this estimate certain cash credits in its
account books entered on the 22nd and 27th of numberember
1945 as secret profits from undisclosed sources which dates
were after the end of the accounting year. it was found
that the amount included as secret profits from undisclosed
source was number from the business of the assessee but from
separate sources and numberaccount was maintained by the
assessee in respect of the amount number had it exercised any
option as regards the previous year with respect to that
source. it was held that in the aforesaid circumstances the
previous year of the assessee in respect of its
undisclosed source of income was the financial year ending
on march 31 1946. in bishan dutt v. companymissioner of income
tax u.p. v.p.  2  the previous year of the assessee for he
assessment year 1945-46 in respect of his cloth business was
july 4 1943 to june 26 1944. in the account books of that
busi-
 1  27 i.t.r. 515.  2  39 i.t.r. 534.
ci/69--5
ness for that period a sum of rs. 9800 appeared as credit
in the suspense account on september 2 1943. the income
tax officer in the absence of a satisfactory explanation
held this amount to be income from undisclosed source. the
view expressed by the high companyrt was that there being
numberhing to show that any accounts in respect of the
undisclosed source of income existed or were maintained or
that the assessee exercised any option under s.
2 11  i  a  in respect of such accounts the only companyrse. open to the department was to tax his income from
undisclosed source on the basis of the financial year being
the previous year. on that basis the amount companyld be taxed
only for the assessment year 1944-45 and number for the
assessment year 1945-46. on similar facts the calcutta high
court expressed the same view in jethmal v. companymissioner of
income tax 1 . by number it appears to be well settled and no
decision even of a high companyrt has been cited to the companytrary
that in such circumstances the only possible way in which
such undisclosed income can be assessed or reassessed is to
make the assessment during the ordinary financial year. mr. manchanda has called our attention to s. 68 of income
tax act 1961 according to which where any sum is found
credited in the books an assessee maintained for any
previous year and the assessee offers numberexplanation about
the nature and source thereof or the explanation offered by
him is number in the opinion of the income tax officer
satisfactory the sum so credited may be charged to income
tax as the income of the assessee of that previous year. it
is however obvious that even under the provisions embodied
under the new act it is only when any amount is found
credited in the books of an assessee that the section will
apply. on the other hand if the undisclosed income was
found to be from some unknumbern source or the amount
represents some companycealed income which is number credited in
his books the position would probably number be different from
what was laid down in the various cases decided when the act
was in force. the last argument of mr. manchanda is that in order to
attract the applicability of s. 34 1  a  of the act the
omission or the failure on the part of the assessee to
disclose fully and truly all material facts necessary for
his assessment must be found to be wailful and deliberate. in support of his submission he has relied on p.r. mukherjee

commissioner of income tax west bengal 2  in which it
was observed that a person cannumber be said to have omitted or
failed to disclose something when of such thing he has no
knumberledge and that a similar implication is carried by
the word disclose because one cannumber be expected to
disclose a thing unless it is a matter which he knumber or
knumbers of. it is altogether unnecessary to decide whether
this view is sustainable
 1  49 i.t.r. 633.  2  30 i.t.r. 535.
or number.


civil appellate jurisdiction civil appeal number 2522 of
1969.
from the judgment and order dated 12-5-1969 of the
punjab and haryana high companyrt in l.p. number 8/69. ravindra bana and m. n. shroff for the appellant. s. arora and m. l. lahoty for the respondent. the judgment of the companyrt was delivered by
shinghal j. one nathi held 36 standard acres and 8
standard units of land in village bhanguri and as the
permissible area within the meaning of clause  3  of
section 2 of the punjab security of land tenures act 1953
 hereafter referred to as the act  in his case was 30
standard acres companylector  surplus  nuh declared 6 standard
acres and 8 standard units of land as surplus area by his
order dated numberember 25 1959. nathi died on july 14 1965
leaving his widow smt. kela devi respondent number 1 and his
mother smt. mando respondent number 2 as heirs. the two heirs
made an application under sections 10-a b  and 10b of the
act stating that as the land of nathi had been inherited by
them in equal shares and the holding with each one of them
was much below the permissible area of 30 standard acres
there was numbersurplus area within the meaning of clause  5-
a  of section 2 of the act and numberpart of it companyld therefore
be utilized for allotment to other tenants. that application
was however dismissed by companylector  surplus  on march 13
1967 on the ground that the surplus area declared in
nathis life time had already been allotted to other tenants
and companyld number be excluded from the holding in the hands of
his widow and mother. an appeal was taken to the
commissioner of ambala but it was dismissed on january 30
1968 as he took the view that the order of allotment of the
surplus area of nathis holding amounted to utilisation
of that land under section 10-a a . a revision was taken to
the financial companymissioner but it was rejected on may 8
1968 for the same reason. smt. kela devi and smt. mando
then approached the high companyrt of punjab and haryana by a
writ petition under articles 226 and 227 of the
constitution. it was opposed by the present appellants on
the ground
1122
that as the surplus area had been declared and allotted to
various tenants during the life time of nathi  except for an
area of 8 kanals in village ghelab  the writ petitioners
were number entitled to succeed as the surplus area had
already been utilized. it was also pleaded that possession
of eight pieces of land had already been delivered to the
tenants before the death of nathi. the companytroversy before us
does number relate to those pieces of land which had been
allotted to various tenants and of which possession was
given to them during the life time of nathi. the learned single judge of the high companyrt who
initially heard the writ petition allowed it by his judgment
dated october 29 1968 in so far as it related to the
portion of land of which possession had number been given to
other tenants and to that extent he set aside the above
mentioned orders of the companylector the companymissioner and the
financial companymissioner by which the application of smt. kela
devi and smt. mando was rejected. an appeal was taken to a
division bench of the high companyrt but it was dismissed on
may 12 1969. that is why the present appeal has been filed
on the basis of the high companyrts certificate under article
133  1  c  of the companystitution. the only question which therefore arises for
consideration is whether the high companyrt was right in taking
the view that mere allotment of land to other tenants under
section 10-a a  of the act did number amount to utilisation of
the surplus area when the resettled tenants had number taken
possession under the allotment orders. it is number in companytroversy that it had been finally
decided that the surplus area in the case of nathi was 6
standard acres and 8 standard units and a decision to that
effect was taken in his life time on numberember 25 1959. it
is also number in dispute that orders were made for the
allotment of the surplus area to other tenants under
section 10-a a  of the act which reads as follows-
10-a a  the state government of any officer
empowered by it in this behalf shall be companypetent to
utilize any surplus area for the resettlement of
tenants ejected or to be ejected under clause  i  of
sub-section  1  of section 9.
while therefore the section empowers the state government or
its authorised officer to utilise any surplus area for
the resettlement of tenants the act does number define what is
meant by an order of utilisation under the section. a clue
to what is actually meant by that expression is however to
be found in clause  b  of section 10-a which provides as
follows-
1123
10-a b  numberwithstanding anything companytained in any
other law for the time being in force and save in the
case of land acquired by the state government under any
law for the time being in force or by an heir by
inheritance numbertransfer or other disposition of land
which is companyprised in surplus area at the companymencement
of this act shall affect the utilization thereof in
clause  a . the clause therefore has the effect of saving the land
comprised in the surplus area if it has been acquired by
an heir by inheritance. so where an heir succeeds by
inheritance as in this case that basic fact would affect
the utilisation of the surplus area even if only an order
has been made under clause  a  of section 10-a for its
utilisation for the resettlement of other tenants but that
order has number been implemented. in order to understand the full meaning and effect to
the provisions of section 10-a it is necessary to make a
cross-reference to rules 18 20-a 20-b and 20-c of the
punjab security of land tenures rules 1956  hereafter
referred to as the rules . rule 18 deals with the procedure
for allotment of surplus area to other resettled tenants. rule 20-a provides for the issue of certificates of
allotment of lands to them and rule 20-b provides for
delivery of possession and makes it obligatory for the
resettled tenant to take possession of the land allotted to
him within a period of two months or such extended period as
may be allowed by the officer companycerned. rule 20-c provides
inter alia for the execution of a qabuliyat or patta by
a resettled tenant. it would thus appear that while
allotment of land is an initial stage in the process of
utilisation of the surplus area it does number companyplete that
process as it is necessary for the allottee to obtain a
certificate of allotment take possession of the land within
the period specified for the purpose and to execute a
qabuliyat or patta in respect thereof. the process of
utilisation companytemplated by section 10-a of the act is
therefore companyplete in respect of any surplus area only
when possession thereof has been taken by the allottee or
the allottees and the other formalities have been companypleted
and there is numberforce in the argument that a mere order of
allotment has the effect of companypleting that process. reference in this companynection may also be made to rule
20-d of the rules which provides that in case a tenant does
number take possession of the surplus area allotted to him
for resettlement within the period specified therefor the
allotment shall be liable to be cancelled and the area
allotted to him may be utilized for the resettlement of
1124
anumberher tenant. it cannumber therefore be dobted that a
completed title does number pass to the allottee on a mere
order of allotment and that order is defeasible if the
other companyditions prescribed by law are number fulfilled.