fy
>.
'- KISHAN CHAND MANGAL) eer STATE OF RAJASTHAN : . Qetober 14, 1982 oe
_ Evidence—Of persons belonging to office-wise, wealthwise | lower strata of society—Rejection on sole gronnd of humble origin—Not justified. . ; Evidence—Witnesses independent of police influence—Employees of nationalised banks and institutions receiving Brants from government—Position of. .
- 4 . : ra
[D.A. DEsat AND AP.SEN, J 0 vt
The appellant, a Factory Inspector, visited the complainant’s factory and - - .
_ demanded an illegal gratification of Rs. 150/- on the threat of entangling him in some legal proceedings. The complainant, who was not inclined to give the bribe,. made a written complaint to the Deputy Superintendent, of Police, Anti-Corrup-
. tion Department (DySP) requesting for suitable action. A trap was arranged by « smearing 15 currency notes of the denomination of Rs. 10/- each with phenolph- ' thalein powder and, on the direction of the DySP, two motbirs were requested = to accompany the raiding party and to -watch what happens.. The motbirs went along with the complainant to the residence of the appellant and witnessed
‘the acceptance of the money given to him ‘by the complairant, the subsequent. ..
_ search for the recovery of the currency notes from the appellant, the dipping of his hands in sodium carbonate solution and the “consequent change i in the colour of the bands into pink, 5
By the time the case came up for trial, the complainant was dead. In the
‘absence of the evidence of the complainant, the trial Judge noted that the first demand of the bribe at the factory of the complainant had not been proved. He,’ .
” however, held that the evidence of the two motbirs was reliable and was amply corroborated by the recovery of the currency notes as well as the presence of phenolphthalein powder on the hands of the appellant. The trial Judge convicted , and sentenced the appellant under s. 161, LP, Cc. and 8. SC). “read with s. 5Q) of the Prevention of Corruption Act, 1947.
. . The High Coutt which examined the evidence of ‘the imotbirs agreed with the findings recorded by the trial Court and dismissed the appeal filed by the appellant, LF a on re . aan) i One of the contentions ‘urged on dehalf of the appellant was that \ once the complainant was not available: to give evidence not only of. the first - demand but also on the payment df bribe pursuant to the demand, the evidence x of the two morbirs had assumed considerable importance and it was unwise and° dangerous to place implicit reliance on their testimony to convict the appellant ot ca
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. soo a / . oO N
570 . . SUPREME COURT REPORTS [1983] 1s.cR. ve a fA “as G (i) both the motbirs were petty clerks and Gi by v virtue of ‘their service, they : were likely to be under Police influence.
sy ismisng the ap peal Hy
HELD: Truth is neither the monopoly nor the preserve of the affluent or
: - of highly placed persons. In a country where renunciation is worshipped and the B. grandeur and wild display of wealth frowned. upon, it would’ be the travesty of truth if persons coming from humble origin and belonging to office-wise, wealth- __ wise lower strata of society are to be disbelieved or rejected as uaworthy of belief '
. a _8olely on the ground of their humble position in society. [577-F] . ‘ o: Khairati Lal y. The State, (1965) 1 Delhi Law Times, 362 overruled. - . . ‘ In the instant case it is factually not correct to say that both the morbirs ; are petty clerks : one was serving as a clerk ina nationalised bank and the other ae was a teacher in a middle school. The testimony of the ‘motbirs which had been . _accepted as wholly reliable by the trial Judge and the High Court cannot be ; Fejected on n the sole ground that they are > petty clerks. {577-E: 578-A-B) . * . . . — D - it may be that officers of Anti-Corruption Department have jurisdiction » to inveStigate lapses on the part of clerks in nationalised banks, It is not clear whether the motbir who was a teacher was a goveroment employee or the school .
itself was a government school. It may be that the school was receiving grant but, if all institutions which receive grant from government are styled as government departments and have to be treated as falling under the police . influence then the net will have to be spread so wide as not to exclude anyone . E. as independent of police influence. There is no justification inthe submission . © * tye that the two motbirs were Persons not likely to be independent of police i. ? a influence. | {578-D-E]
; Raghbir Singh v. State of Punjab, AIR 1976 S.C. 91, distinguished. i Co - ° CRIMINAL APPELLATE “‘JuRISDICTION : Criminal Appeal No. 45 ~ es een! 1980 in , . aa a ~. From the Judgment and Order dated the 17th October, 1979 of
~ the High Court of Rajasthan in S.B. Criminal ‘Appeal No. 39 of” ~ 1977.-- ' ‘
CG. . Frank Antnony, and S. K, Jain, for the Appellant. -
Badr Dass Sharma for the Respondent.
= 7. The Judgment of the Court was delivered by
H- Desai, J. Appellant Kishan Chand Mangal was ; convicted by -tys... the learned’ Special Judge (A.C.D. Cases), Jaipur, Rajasthan, for . ~
Z Se
‘
Led
_ KISHAN CHAND ¥. RAJASTHAN (Desai, J.) - S71
- having ¢ committed offences under section 161, Indian Penal Code and-
‘ection’ 5(1)(d) read with’s. 5(2) of the Prevention of Corruption Act,.1947, and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs, 200/-, in default to suffer further rigorous imprisonment for one month on each count with a further ., direction that both the sentences will run concurrently.. After an unsuccessful -appeal to the High Court of Rajasthan, he has preferred this’ appeal by special leave. - . nn
Appellant at the relevant time ‘was serving as Factory Inspector,.
Ajmer and in that capacity he accompanied by his friend paid a visit on November 20, 1974, to the factory named ‘Krishna Industries’ whose proprietor was one Rajendra Dutt. Appellant’ said that his ’ visit ‘being after a lapse of one and a half year, the proprietor should _ pay him pocket money. Rajendra Dutt replied that his establishment was not covered by the Factories Act and showed disinclination to grease the palms of the appellant. However, appellant persisted - in his demand and told Rajendra Dutt if he did not-pay Rs. 150/- he _ was likely to be entangled in some legal proceedings. So saying _ appellant and his companion lfeft.. Rajendra Dutt was not inclined to give the bribe demanded from him and,, therefore, on November _22, 1974; he contacted Dy. S.P., A.C.D., Ajmer, P.W. 7; Mahavir Prasad and gave a written complaint Ext. P-12 complaining about the demand of illegal gratification by the appellant requesting for taking suitable action in the matter.’ He also produced 15 currency notes each of the defomination of Rs. 10/-. P:W. 7 Dy. S.P.
Mahavir Prasad directed P.W.3 Prahlad~Narayan to bring two.
persons to witness the search and accordingly P.W. 1 Ram Babu and
P.W 2 Keshar Mal were requested to join the raiding party. 15 clrrency notes produced by the complainant were smeared with phenolphthalein powder and a memorandum of the same was pre- -
. pared. The raiding party led by -P.W. 7 Dy. S.P. Mahavir Prasad and including the complainant Rajendra Dutt, two motbirs P.W. 1 Ram Babu and P.W.2 Keshar Mal, P.W. 3:Prahlad Narayan, a clerk in the Office of the Anti Corruption Department, started by a
. jeep driven by P.W. 6 Bajrang Singh to go to the residence of the appellant. Office and residence of the appellant are situated in the same building. Complainant Rajendra Dutt and the two motbirs
Ram Babu and Keshar Mal proceeded ahead and entered into the ’ room used as residential portion of the building. Ram Babu and
Keshar Mal stoppted in the verandah and the complainant Rajendra _ Dutt went inside. Appellant was seen sitting on,a cot. On inquiry
_ by complainant Rajendra Dutt appellant replied that he was not well -
$72 SUPREME COURT REPORTS {1983} 1 s.c.k. - and that he was suffering from cold. Appellant then inquired - whether complainant Rajendra Dutt had brought the money and the complainant replied that he had brought the money and handed over marked currency notes 15 in number each of the demonination of Rs. 10/- which the appellant accepted and put the same under his pillow. Rajendra Dutt came out in the verandah and as instructed, ' gave the agreed signal whereupon Dy. S.P. Mahavir Prasad, the two motbirs and others entered the room, Mahavir Prasad introduced himself as Dy. S.P. ACD, and asked the appellant whether he had accepted Rs. 150/- as and by way of bribe from complainant Rajendra Dutt. Appellant denied having accepted any bribe or any money from Rajendra Dutt whereupon a search of his person.was taken. When the search of the person of the accused was being taken motbirs Ram Babu and Keshar Mal pointed towards the pillow indicating that the bribe taken by the appellant was kept underneath the pillow. P.W. 6 Driver Bajrang Singh was asked to Jift the currency notes and the numbers were tallied with the memorandum prepared earlier. Hands of the accused were dipped in the solution of sodium carbonate which turned pink. After the memorandum was completed’ recording all these facts and after completing investigation sanction was obtained and the appellant was prosecuted for the aforementioned offences.
By the time the case came up for trial complainant Rajendra Dutt was dead and his evidence was not available. Prosecution examined the two motbirs Ram Babu and Keshar Mal, Dy. SP, ACD Mahavir Prasad, Clerk Prahlad Narayan, Driver Bajrang Singh and two others.
Statement of the accused was récorded under s. 313 of the Code of Criminal Procedure and he offered himself as a witness in his defence. In his evidence he stated that on the date of occurrence around 4.30 p.m. when he was sitting in his cot complainant Rajendra Dutt came and tooka seat in the chair placed nearby. Appellant enquired why he had come and whether he had brought any written complaint against Clerk Mr. Singhal. According to him, the complainant replied that action be ‘taken against Singhal by recording his statement whereupon the appellant said that if the complainant has any grievance he should come with a written ‘complaint. Appellant further stated that thereafter he went to the bath room for spitting cough and he came out and sat on the’ cot. Complainant Rajendra Dutt -enquired whether he can dtink water from a jug which was lying there. Thereafter Rajendra Dutt went
~ . ' *
KISHAN CHAND ¥. RAJASTHAN (Desai, J.) 573 | out of the room and soon thereafter 8 persons including Rajendra Dutt entered the room. He stated that’ two of the members of the raiding party caught his hands and when he. tried to get himself released-from the grip of those persons the grip’ tightened. One of the members of the raiding -party then told him that he was Dy. SP,.
- ACD, Ajmer and called upon him to produce Rs; 150/- he had taken.
from Rajendra Dutt. Appellant stated that he immediately told the
* Dy. SP that he had not accepted any money from Rajendra .Dutt . whereupon the Dy. SP came-near him and put his hand in the pocket of the garment put on by the appellant. Appellant. objected to any search being taken and insisted on keeping two respectable persons present. He further stated that Dy. SP quarrelled with him and then he sent a telephone message to S.P., Ajmer that 4 Factory Inspector has quarrelled with him and he should be provided-with extra police help. Thereafter his hands were dipped in a solution but the colour of the solution did not change and remained white. Appellant then told the Dy. SP that Rajendra Dutt had come to complain against one Singhal, a Clerk and in support of this he produced Ext. D-2 marked collectively in respect of five letters. At this stage the Dy.
- $P according to the appellant asked Rajendra_.Dutt why he had given a false signal whereupon’ the complainant Rajendra Dutt’ informed the DySP that the bribe money was lying ‘under the pillow whereupon the DySP removed the pillow and collected the currency notes. He further stated that he has been involved in this false case
. at the instance of K.C: Sogani, Factory Manager of Krishna Mills,
Beawar. This was broadly the defence of the appellant as collected from his evidence. 4 . - :
The learned special Judge noted the fact that the complainant Rajendra Dutt was not available and, therefore, the first demand at the Factory of Rajendra Dutt on November 20, 1974, has not been proved. The learned Judge, however, held that the evidence of two motbirs Ram Babu. and Keshar Mal was reliable and was amply corroborated by the ‘recovery of currency notes ast well as the presence of phenolphthalein powder on the hands of the accused.
. The learned Judge rejected the defence version that the currency - notes were planted when the appellant had gone into the bath room. The learned Judge accordingly convicted and sentenced the appellant as mentioned hereinbefore. .
‘' The appellant having unsuccessfully appealed to the Rajasthan . ‘High Court, has filed this appeal by special leave. ,
574° _ SUPREME COURT REPORTS - {1983} 18.G.r,
Mr. Frank Anthony, learned counsel for the appellant contend- ed that there are certain features of this case which would convin- . ‘ cingly show that the prosecution case cannot be accepted, He enumerated the circumstances as : (i) absence of name of the appellant in the F.LR. Ext. P-I2; {ii) absence of evidence of demand as on November 20, 1974 ; (iii) absence of any prior atrangement where and when the complainant was to meet the appellant and, therefore, the trap could not be successfully arranged which might permit an inference that the whole story of acceptance of -bribe money ‘is concocted ; (iv) further two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal were petty clerks specially selected by P.W. 3 Prahlad Narayan ; {v) in their evidence they have tried to improve upon the prosecution version which shows their unconcealed -interest in the -success of the trap which would render them partisan witnesses ; (vi) there are certain omissions in the evidence of the prosecution . witnesses which may indicate that the defence version of planting the currency notes when the appellant had gone to bath room is proba- - bilised ; (vii) that no inference be drawn from the fact that when hands of the appellant were dipped in the sodium carbonate solution it turned pink because admittedly when hands of. the accused were caught by the members of the raiding party. one or the other of them . may have transmitted phenolphthalein powder to the hands of the appellant. ‘ -
Complainant Rajendra Dutt on’ whose complaint a trap was arranged was dead by the time the case came ‘up for trial and his evidence was not available to the prosecution. However, the‘ complaint Ext. P-12-filed by him was admitted in evidence because P.W. 7 Mahavir Prasad, the Dy SP who recorded the same gave - evidence about the same. The averments in the complaint even in the background of these facts would not provide substantive evidence and the only use to which it can be put is that a complaint of this nature was filed which tends. to explain the subsequent actions taken by the DySP. Yo,
High Court has examined the evidence of two motbirs P.W. | Ram Babu and P.W. 2 Keshar Mal, and also the evidence of P.W, 7 Mahavir Prasad and agreed-with the findings recorded by the trial court. We need riot examine the evidence afresh but limit our examination to specific contentions raised by Mr. Anthony.
The-first contention is that the name of the appellant Kishan Chand Mangal is not to be found in Ext. P-12. That is true, but
KISHAN CHAND ¥. RAJASTHAN (Desai, J.) - 578
_what is.stated in Ext. P-12 is that a Factory Inspector accompani- ed by his friend visited the factory of the appellant and demanded a.
,F bribe. Now, the appellant in his evidence as DW 1° has stated that complainant Rajendra Dutt did come to his house on November 22,
> 1974, around -4.30 p.m. ‘Appellant further proceeds to say that
Rajendra ‘Dutt bad some grievance against a clerk Singhal and appellant insisted upon giving a written complaint at the time of the visit of Rajendra. Dutt. If Rajendra‘ Dutt, as is now contended - wanted to falsely implicate the accused there is no: reason why he’
_ would not mention the name of the appellant in Ext. P-12.. On the ro contrary the absence of the namie of the appellant in Ext. P-12 would " indicate that probably the appellant had visited the factory of
\ . Rajendra Dutt after a long time and that is what transpires from
. ~ Ext. P-12 that the visit of the appellant was after a yeat and half.
It is reasonable to infer that Rajendra Dutt did not know the name of the appellant but knew him by the designation of his office as ’ Factory Inspector.. Therefore, the absence of name of Kishan Chand i Mangal in Ext. P-12 is hardly of any significance.
Se It was next contended that once Rajendra Dutt is not available _for evidence there is no evidence as'to the demand of bribe on - November 20, 1974, and it is not open to the Court to spell out the demand from the’contents of Ext.P-12. It is undoubtedly true that. Rajendra Dutt was dead before the commencement of trial. : It is equally true that the F.I.R. lodged by him on November 22, 1974, -cannot be used as substantive evidence nor the contents of ‘the report . can be said to furnish testimony against the appellant.. Such an F.LR. would not be covered by any of the’ clauses of ss.. 32 and. 33 of the Evidence Act and would not be ‘admissible as substantive - _ evidence. The question still remains whether there is any evidence of demand of bribe on November 20, 1974, in this case. A fact may be proved either by direct testimony or by circumstantial evidence. If appellant did not visit the Factory of Rajendra Dutt on November 20, 1974, and. made no overtures demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy. SP,-ACD on November 22, 1974, his producing currency notes worth Rs. 150 ; a superior officer like the DySP, ACD, making | all arrangements for’ the trap and the raiding party going to the " house of the accused on November 22, 1974. ‘The visit of Rajendra 4 - Dutt soon followed by the raiding party at the house of the accused on November 22, 1974, is.admitted. Coupled with this, the fact that Keshar' Mal, P.W. 2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting, Rajendra Dutt on
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~ dé -
516 ’ SUPREME COURT REPORTS (1983] 1 s.c.R.
entering the room asked the appellant, ‘Hallo, how do you do’. He ' further stated that the appellant replied, ‘I am sick and suffering from cold’. He deposed that thereafter the appellant asked, ‘Have you brought the money’, whereupon complainant Rajendra Dutt teplied, ‘Yes, I have brought the money’. He further stated that thereafter Rajendra Dutt took out the amount of currency notes’ from his diary and gave the same to the appellant who took the . ‘* amount and kept it under the pillow on the cot. If there was no prior demand the subsequent events remain unexplained as also the.
demand as deposed to by P.W. 2 Keshar Mal. But Mr. Anthony urged that this part of the evidence of Keshar Mal cannot be accepted because he has not stated this fact in his statement recorded in the course of investigation. Simultaneously it was pointed out that .
the other motbir Ram Babu is totally silent in. his evidence about this conversation between the appellant and the complainant. Undoubtedly, the omission in the police statement of Keshar Mal and non-mentioning all these facts by the co-motbir would raise some doubt in the mind of the court about this conversation but as pointed out earlier there are tell-tale circumstances which do indicate that there must have been a demand and, therefore, these circumstances as herein before set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlier demand by the appellant. Therefore, it is not proper to’say that there is no evidence of the demand of bribe as on November 20, 1974. .
e
It was next contended that if a bribe is demanded and agreed to be paid and if the complainant was contemplating not to pay the bribe but was thinking of initiating action against the officer demanding the bribe, obviously for the success of the trap to be arranged the time and place of meeting would be arranged and if it be so it would be mentioned in the F.I.R. It was said that the very absence of it would show that there was neither a demand of bribe nor any action was contemplated on November 20, 1974, as is now sought to be made out and, therefore, the court should not accept any evidence with regard to the trap. In view of the admission of the appellant in his evidence that Rajendra Dutt followed by a raiding party came to his house also used as residence-cum-office. around 4.30 p.m. on November 22, 1974, omission to mention about the time and place of future meeting in the F.I.R. Ext. P-12 loses all significance. It is equally possible that on the very day when the appellant visited the factory of Rajendra Dutt and demanded bribe, Rajendra Dutt may
KISHAN CHAND ¥. RAJASTHAN (Desai, J.) 577 © not have immediately planned to rush to the Anti Corruption ‘Department. He had declined to give the bribe. In™his view his factory was not covered by .the Factories Act. These are the averments in Ext. P-12. They are not being relied upon as substantive
_ evidence but are used to explain the conduct of Rajendra Dutt which- has evidentiary value. If Rajendra Dutt did not negotiate giving the bribe and did not agree to give the bribe thougk the appellant persisted in the demand and threatened to involve him in court cases the question of any arrangement for any time and place for giving the bribe does not arise and obviously it could not’ have found its place in the F..R. ‘Such things find mention in a F.I.R. only when the victim agrees to grease the palms of the officer. Absence in sucha situation of such averments in Ext. P-12 in this case is both natural and obvious. ’ The next contention is that once Rajendra Dutt is not available _to give evidence not only of the first demand ‘but also the payment of bribé pursuant to the demand, the evidence of two motbirs assumes Considerable importance. It was - urged that both , the motbirs are some petty clerks and it would be both unwise and dangerous to place implicit reliante on their testimony to convict the
Government servant. Factually it is not correct to say that both the ‘motbirs are petty clerks. Ram Babu was serving as a clerk in the Central Bank of India and Keshar Mal was serving as a teacher in
Middle School at the relevant timé. It is unfortunate that. thirty-five - years after independence and in this age of common man, there is still not the eclipse of the high brow. Sanctity of word’ made depen- . dent upon the office held or wealth acquired is a nauseating phenomenon. Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons. Inacountry where renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would be the travesty of truth if persons coming .
from humble origin and belonging to officewise, wealthwise lower strata of society are to be disbelieved or rejected as unworthy of belief solely-on the ground of their humble position in society. The converse unfortunately appears to be true. The submission was sought to. be buttressed by reference to Khairati Lal v. The State(?). A learned single judge of the High Court rejected the testimony in that case of P,W. 2 Brij Nandan and P.W. 3 Krishan Kumar obserying that they are petty clerks_and cannot be styled as independent witnesses. Wehave moved far away in seventeen years and this
(1) (1965) 1 Deihi Law Times, 362.
578 . SUPREME COURT REPORTS [1983] 1-s.c.r.
approach does not commend to us. We say no more. Therefore,
' without further discussing this aspect, we are utterly disinclined to | reject the testimony of the two motbirs accepted as wholly reliable by the learned Special Judge -and the High Court on the sole ground that they are petty clerks as if that by itself is sufficient to reject their testimony. That is a wholly irrelevant consideration, bon As a second string to the bow. it was urged that Ram Babu’ was serving at the relevant time asa Clerk in the Central’ Bank of India and Keshar Mal was.a teacher in - the middle school at Ajmer . and both of them were, therefore, by virtue of their service, likely
:_ to be under the police influence. It is difficult to appreciate’ this’
contention. Undoubtedly Ram Babu was.a Clerk in a nationalised bank and it may be that officers of Anti Corruption Department
~ may have jurisdiction to investigate lapses on the part of'clerks in
\ nationalised banks. It is not clear whether Keshar Mal who was , Serving in‘a Middle School was a Government emyloyee or the school itself was a Government School. It. may be that the school may be receiving grant but if all institutions which receive grant from Government and are, therefore, styled as Government Departments, and have to be treated under the police influence then the net will have to be spread so wide not to exclude any one as independent of police influence. We find no justification in the submission that the two motbirs were persons not likely to be independent of police influence. Both of them have been accepted as independent witnesses and they do satisfy the test of witnesses independent of
' police influence. Reference in this connection was made to Raghbir
Singh.v. State of Punjab(}), wherein this Court adversely commented
_upon selecting one: Makhan, a sweeper in the whole time employment of: police, as a witness in a trap case observing that the Anti Corrup-
. tion Department should insist on observing the safeguard of selecting independent persons as witnesses as scripulously as possible for the protection of the public servants against whom a trap may have to be laid. Makhan, a sweeper in the whole time employment of police. © can obviously not be said to be independent of police influence but how does he compare with a clerk in a nationalised bank anda teacher in a middie school ? “It, thereforé, cannot be said that the two motbirs could not be styled as independent witnesses. In passing it was submitted that Rajendra Dutt and Ram Babu must have intimately-known each other because Rajendra Dutt had an account in the same branch in which Ram Babu was working as
(1) AIR 1976 SC.91,
- we
KISHAN CHAND ¥. RAJASTHAN (Desai, J.) 579 clerk. Ifa Bank Clerk is supposed to be intimately connected with each account holder in the bank, banking service would receive © Y encomiums from the society. But it is difficult to accept the submission that on this account Ram Babu could not be said to be independent witness and let it be recalled that by the time Ram Babu came to | give evidence Rajendra Dutt was already dead.
The next contention is that. even if Ram Babu and Keshar.Mal — “ are independent witnesses there are certain inherent. infirmities in their evidence which would render their evidence untrustworthy of’
4. belief, Before we examine this submission in detail let it be reiterated: that the learned special judge who tried the case and had seen both r these witnesses giving evidence has observed “that P,W. 1 Ram Babu and P.W. 2 Keshar Mal ‘are independent witnesses aad there is nothing in their testimony which may induce any distrust about the facts stated by them and their evidence was relied upon. The learned judge of the High Court observed that both the witnesses . are independent witnessesand there is no reason why their evidence should not be relied upon. :
It is now time to briefly refer to some of the omissions and contradictions brought to our notice with a view to persuading us to rejéct the testimony of both these witnesses, It was pointed out that according to Ram Babu both he and Keshar Mal told the DySP
- that the currency notes were under the pillow while according to ‘
* Keshar Mal it was Ram Babu who pointed out that the currency ‘notes were under the pillow. We find:no contradiction in this state- ment because if plural used by Ram Babu was to be relied upon as a contradiction, cross-examination ought to have been directed on this point. It is necessary to point out that the cross-examination of both the witnesses is scrappy, jumpy and not ‘pursuant to any set theory of defence. It is worthwhile to note that there is not the
- slightest challenge to the statement of both these witnesses that while waiting in the lobby outside the room both of them saw Rajendra
Dutt giving marked currency notés to the appellant and appellant
"accepting the same and keeping them underneath the pillow. | It was -also urged that both the witnesses in their respective statements in the course of investigation have not referred ‘that they pointed out
. that the currency notes .were kept under the pillow. A further
4 omission was pointed out that while Mahavir .Prasad has stated that accused started quarrelling with him which necessitated sammoning additional police help, both the witngseee while referring tothe _ .
580 . SUPREME COURT REPORTS (1983} 1 s.c.R, quarrel picked up by the appellant so as to support the evidence of Mahavir Prasad have failed to refer to this aspect in their statements in the course investigation. These are omissions of trivial details ty and have hardly any bearing on the main part of the prosecution case. Along with this the earlier omission in the statement of
Keshar Mal already discussed was reiterated. In. our opinion the so-called inner variations between the evidence of these two witnesses and omissions of trivial details would not cause any dent in the testimony of these two witnesses. Mr. Anthony after referring to — ¥ Darshan Lal vy. Delhi Administration(+),. urged that if Mahavir Prasad took search of the appellant for recovering the bribe it would show- , that neither Ram Babu nor Keshar Mal had seen appellant keeping marked currency notes under the pillow. Such an inference cannot be drawn. Ordinarily the police officer would start searching the { person of appellant and while he was doing that act, he was told where the currency notes were kept by the appellant. Therefore, no such inference is permissible.
It was lastly urged that the court should not be influenced by the’fact that when the hands of the appellant were dipped ina solution of sodium carbonate it turned pink which would affirmatively show the preSence of phenolphthalein powder on the tips of | fingers of the hands of the appellant. The. fact remains that the solution’did turn pink when the hands of the appellant were dipped in it. The explanation of the appellant is that both his hands were caught by the members of the raiding party and itis possible that > the members of the raiding party whose hands must have already been soiled with the phenolphthalein powder when the arrangements were being made for laying the trap they must have transmitted the same to the hands of the accused. This contention stands belied by the evidence on record. Mahavir Prasad has deposed that he asked one Ganga Singh to demonstrate the phenolphthalein powder test. After that he was directed to wash his hands. No other member of the raiding party touched the phenolphthalein powder at the time of demonstration. Ganga Singh was a member of the raiding party but when the hands of the accused were sought to be dipped in the . solution this task was assigned to SI Satya Narain. Undoubtedly there is nothing to show that his hands were soiled with phenolphthalein powder. The hands of Rajendra Dutt must have been soiled with
“) AIR 1974 SC 218.
_ a
KISHAN CHAND v. RAJASTHAN (Desai, J.) 581 phenalphthalein powder because he took out the currency notes from © his.diary and passed them on to the appellant. But it is not suggested that Rajendra Dutt caught the hands of the appellant. Therefore, it is not possible to accept the submission that when the hands of the appellant were caught in the ensuing quarrel between him and the DySP Mahavir Prasad, phenolphthalein' powder must have been transmitted by .persons holding the hands“ of the appellant. This ‘tell-tale circumstance would lend -ample independent corroboration if there be any need to the evidence of Ram Babu and Keshar Mal that they saw Rajendra Dutt giving marked currency . notes to the appellant and the appellant accepting the same and putting them underneath the Pillow. .
Mr. Anthony urged that there are certain tell-tale circumstances in the case which would render the defence plausible. It was urged that the appellant did not disclose any guilty syndrome when the raiding party entered his room and at the first question he denied having accepted any bribe from Rajendra Dutt. How would these two circumstances be sufficient to reject the otherwise reliable
~ testimony ?. A person witha strong will would not be upset and may remain cool and collected. The appellant did pick up a quarrel with the DySP. Why? His suggestion that he insisted on two independent witnesses being kept present appears to be an afterthought. The fact that the appellant picked up a quarrel is borne out from the evidence of the persons present there and by the action of the DySP in summoning additional police help.: Therefore, we find no circumstances which would impinge upon the prosecution case.
We read the entire evidence of two motbirs Ram Babu and’ 7 Keshar Mal, evidence of DySP Mahavir Prasad, Ext. P-12, the ; - F.].R., and we are in agreement with the High Court that the case’
has been proved beyond a shadow of reasonable doubt. The evidence of appellant himself does not raise a plausible defence and has been rightly negatived.
Mr. Anthony further urged that the appellant did not demand bribe because there is no such evidence and that even if Rajendra Dutt appears to have given some currency notes the appellant was an unwilling victim and the court must frown upon such attempts of the police to make government servants commit offence. He relied o .
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582 SUPREME COURT REPORTS’ [1983] 1 s.c.R.
upon the oft quoted passage in Brannan y. Peek). In that case the finding was that when the second time the police constable attempted to give a bet the accused showed his reluctance to accept the same.
_ That was also the finding of the justices. The Court frowned upon the police officers in the absence of an Act of Parliament going to the place of the accused so as to induce him to commit an offence. We fail to see how this observation has any relevance in the facts of this case. Once the suggestion that there was a demand of bribe is accepted the appellant could not be said to be an unwilling victim nor a fence sitter who was induced to fall a victim to the trap.
Lastly it was urged that the court would not be justifiedni raising a presumption under S. 4 (1) of. the Prevention of Corruption Act, 1947. In the facts of this case and in the absence of presumption even if Rajeddra Dutt gave some money to the appellant that by itself would not establish the offence and the case must fail. Reliance was placed on Bansi Lal Yadav v. State of Bihar(*). In that case the defence of the accused was that currency notes were thrust in his pocket. Taking cue from this statement, the court held
_ that the acceptance of an amount other than legal remuneration having been admitted the presumption would arise under S. 4(1) and the burden would shift to the accused. It is in this context that this court held that where the accused says that involuntarily the amount was thrust in his pocket he could not be said to have accepted or © obtained for himself any gratification other than legal remuneration which alone permits the presumption tobe raised. Facts in this case being a demand and voluntarily acceptance, the presumption would squarely arise and has been rightly raised.
Reliance was also placed on the decision of this Court in - Sultan Singh'v. State of Rajasthan(®). In that case the explanation ~ of the appellant was that Rs. 100 was paid to him towards the arrears
~ of revenue and in the absence of reliable evidence to the contrary the explanation was held acceptable. .This is a decision on the facts of that case and would be hardly of any assistance in dealing with the points raised in this case.
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(1) [1947] 2 All E.R. 572 at 574, (2) AIR 1981 SC 1235,
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" KISHAN CHAND ¥. RAJASTHAN (Desai, J.) _ 583.
Therefore, the charge is brought home to the accused and he A. , has been rightly convicted and the sentertice awarded being the »» minimum, no case is made out for interfering with the same. = Accordingiy this appeal fails and is dismissed. The bail-bond — ; of the appellant is cancelled and he must surrender to serve out the sentence. — ; - , so , B H.LC .- . Appeal dismissed, hy d . : . . . ‘ : t - 4 — ~ y 7 . . = . a ia . . ag . ~ ' 4 é