PETITIONER:
HAZARI LAL
Vs.
RESPONDENT:
DELHI ADMINISTRATION
DATE OF JUDGMENT15/02/1980
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION:
1980 AIR 873 1980 SCR (2)1051
1980 SCC (2) 390
ACT:
Prevention of Corruption Act, 1947-Section 4(1)-Scope
of-Accused charged with demanding and taking illegal
gratification-Many prosecution witnesses turned hostile-
Statements made by witnesses in the course of investigation-
If could be used as substantive evidence-Evidence of police
inspector-If needs corroboration.
Panch witnesses-Clerks-If could not be called
independent witnesses.
HEADNOTE:
The accused (appellant) who was charged with offences
under section 5(1) (d) of the Prevention of Corruption Act
and section 161 of the Penal Code was convicted and
sentenced by the Special Judge. The convictions and
sentences were confirmed by the High Court.
The prosecution alleged that the scooter rickshaw of
the complainant driven by his driver was one day involved in
a traffic accident and the vehicle was taken to the police
station by the accused who was a police constable. The
complainant obtained orders of the Magistrate for its
release but the accused declined to release the vehicle
unless he was paid a sum of Rs. 60. The complainant was not
prepared to pay the sum demanded. He then went to an
Inspector of the Anti-Corruption Department and lodged a
complaint that the accused was demanding illegal
gratification from him for the release of his scooter
rickshaw which was ordered by the Magistrate to be released.
The prosecution further alleged that the Inspector
called two panch witnesses and after noting down the numbers
of six ten rupee currency notes given by the complainant,
treated them with phenol phthalene powder and gave them to
the complainant. It was arranged that the complainant should
hand over the currency notes to the accused and should
thereafter make a signal at which the Inspector and panch
witnesses would enter the room. The complainant carried out
the plan as arranged and gave the call on which the
Inspector and panch witnesses entered the room of the
accused. On seeing the Inspector, the accused removed the
currency notes from his pocket and flung them across the
wall into the adjoining room. The notes were collected and
when compared with the numbers noted earlier, they tallied.
The hands of the accused were then dipped in sodium
bicarbonate solution which, colourless earlier, turned pink.
Similarly the handkerchief in the right side pocket of the
trousers of the accused was removed and also dipped in
sodium bicarbonate solution. That too turned pink.
Before the trial court many of the witnesses turned
hostile and one of the panch witnesses became mentally
deranged.
In appeal it was contended before this Court that (1)
the courts below had made free use of the statements made by
the witnesses in the course of investigation as if they were
substantive evidence and, if they were excluded, the rest of
the evidence would not be sufficient to draw the presumption
under
1054
section 4(1) of the Prevention of Corruption Act, (2) the
fact that the Inspector was the very police officer who laid
the trap, should be sufficient to insist on corroboration of
his evidence.
Dismissing the appeal,
^
HELD: 1(a) The courts below were clearly wrong in using
as substantive evidence statements made by witnesses in the
course of investigation. [1059E]
(b) Section 162 of the Code of Criminal Procedure
imposes a bar on the use of any statement made by any person
to a police officer in the course of investigation at any
enquiry or trial in respect of any offence under
investigation at the time when such statement was made,
except for the purpose of contradicting the witnesses in the
manner provided by section 145 of the Evidence Act. Where
any part of such statement is so used any part thereof may
also be used in the re-examination of the witness for the
limited purpose of explaining any matter referred to in his
cross-examination. The only other exception to this embargo
on the use of statements made in the course of an
investigation relates to the statements falling within the
provisions of section 32(1) of the Evidence Act or permitted
to be proved under s. 27 of the Evidence Act. [1059A-C]
(c) The contention of the prosecution that the earlier
statements with which witnesses were confronted for the
purpose of contradiction could be taken into consideration
by the Court in view of the definition of "proved" in
section 3 of the Evidence Act has no substance. The
definition of the term "proved" does not enable a Court to
take into consideration matters, including statements, whose
use is statutorily barred. [1059G]
2(a) The evidence of the Inspector is entirely
trustworthy and there is no need to seek any corroboration.
[1059H]
(b) There is no rule of prudence which has crystalized
into a rule of law, nor any rule of prudence which requires
that the evidence of such police officers should be treated
on the same footing as evidence of accomplices and there
should be insistence on corroboration. In the facts and
circumstances of a particular case a court may be
disinclined to act upon the evidence of such an officer
without corroboration, but, equally in the facts and
circumstances of another case the court may unhesitatingly
accept the evidence of such an officer. It is all a matter
of appreciation of evidence and on such matters there can be
no hard and fast rule nor can there be any precedential
guidance. [1060A-B].
In the instant case the proved facts were that the
complainant made a report to the Inspector, and currency
notes whose numbers were noted and which were treated with
phenol phthalene powder were handed over to the complainant.
The complainant went into the accused's room and came out
after a short while giving the agreed signal. When the
Inspector rushed in, the accused threw the currency notes
across the wall into the adjoining room. His hands and the
handkerchief when dipped in sodium bicarbonate solution
turned pink and lastly instead of giving a plausible
explanation as to how the phenol phthalene powder came to
his hands and the handkerchief in his pocket all that he
could say was that he "knew nothing about it". From all
these facts the only inference that follows is that currency
notes were obtained by the accused from the complainant. It
is not necessary that the passing of
1055
money should be proved by direct evidence, it may also be
proved by circumstantial evidence. The events which followed
in quick succession in the present case led to the only
inference that the money was obtained by the accused from
the complainant.
3. Under section 114 of the Evidence Act the Court may
presume the existence of any fact which is likely to have
happened regard being had to the common course of natural
events, human conduct and public and private business, in
their relation to facts of the particular case. One of the
illustrations to this section is that the Court may presume
that a person who is in possession of stolen goods soon
after the theft is either the thief or has received the
goods knowing them to be stolen, unless he can account for
his possession. So too in the facts and circumstances of the
present case the Court may presume that the accused who took
out the currency notes from his pocket and flung them across
the wall had obtained them from the complainant who, a few
minutes earlier, was shown to have been in possession of the
notes. Once it is found that the accused had obtained the
money from the complainant the presumption under section 4
(1) of the Prevention of Corruption Act is immediately
attracted. The presumption is rebuttable, but in the present
case there is no material to rebut the presumption. The
accused was, therefore, rightly convicted by the courts
below. [1061D-F]
Sita Ram v. The State of Rajasthan AIR 1975 SC 1432;
Suraj Mal v. The State (Delhi Administration) AIR 1979 SC
1408 held inapplicable.
4. There is no force in the contention that persons
holding clerical posts could not be called independent
witnesses on the ground that they would be under fear of
disciplinary action if they did not support the prosecution
case. The respectability and verasity of a witness is not
necessarily dependent upon his status in life and it cannot
be said that clerks are less truthful and amenable than
superior officers. [1060E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
211 of 1974.
Appeal by special leave from the Judgment and order
dated 19-4-1974 of the Delhi High Court in Crl. A. No.
186/72.
Frank Anthony, S. K Dholakia and R. C. Bhatia for the
Appellant.
H. S. Marwah and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. The appellant Hazari Lal was
convicted by the learned Special Judge, Delhi, of offences
under section 5(2) read with section 5(1) (d) of the
Prevention of Corruption Act, 1947, and Section 161 of the
Indian Penal Code. On the first count he was sentenced to
suffer rigorous imprisonment for a period of two years and
to pay a fine of Rs. 500. On the second count he was
sentenced to suffer rigorous imprisonment for a period of
two years. The two sentences were directed to run
concurrently. The convictions and sentences were confirmed
by the High Court of Delhi.
1056
The case which the prosecution set out to prove before
the Trial Judge was briefly as follows:
The scooter rickshaw belonging to Sri Ram (P.W.3) and
driven by his driver Ram Lubhaya (P.W. 6) was involved in an
accident on July 12, 1969. The scooter rickshaw and a tonga
which were involved in the accident were taken to the Police
Station, Kashmere Gate by the accused, a Police constable
attached to that station. P.W. 3 obtained orders from the
Magistrate for the release of his vehicle and went to the
Police Station to obtain delivery of the vehicle. The
accused, who was present took him outside and told him that
the vehicle would be given to him only if he paid a bribe of
Rs. 60. P.W. 3 then went away. He went to the Anti
Corruption Department and made statement to Inspector Paras
Nath, P.W. 8. After recording the statement of P.W. 3, P.W.
8 sent for two persons Davinder Kumar (P.W. 4) and Kewal
Krishan. The statement of P.W. 3 was read out to P.W. 3 in
the presence of the two Panch witnesses Davinder Kumar and
Kewal Krishan. P.W. 3 then produced six currency notes of
the value of Rs. 10 each. The numbers of the notes were
noted and they were treated with phenol phthelene powder.
After the usual instructions were given to P.W. 3 and the
panch witnesses, the raiding party proceeded towards
Kashmere Gate. P.W. 3, P.W. 6 and Kewal Krishan went into
the Police Station, while P.W. 8 and others stayed outside.
The money was handed over to the accused who took it and put
it inside the right hand pocket of his trousers. P.W. 6 and
Kewal Krishan then came out and signalled to P.W. 8
whereupon P.W. 8 and the Panch witnesses went inside the
Police Station. The accused was present inside. As soon as
he saw the party led by P.W. 8 he took out the currency
notes from the right side pocket of his trousers and threw
them across the wall into the adjoining room. P.W. 8
instructed some of the police officers accompanying him to
rush to the adjoining room and to keep a watch over the
notes which must have fallen there. He then introduced
himself to the accused and took him to the adjoining room.
Some of the notes were lying on the table of the Duty
Officer in that room while others had fallen on the ground
near the chair of the Duty officer. The six notes were
collected in the presence of the witnesses and their numbers
were compared with the numbers noted before they proceeded
on the raid. The numbers tallied. The accused was questioned
by the Inspector and he denied that he had demanded any
bribe and kept silent about the acceptance of the bribe.
Both the hands of the accused were dipped in sodium
carbonate solution and the solution which was previously
colourless turned pink. The same test was repeated
1057
with the handkerchief which was taken out of the right hand
side pocket of the accused and also with the trousers of the
accused. Each test resulted in the bicarbonate solution
turning pink. After completion of the investigation a
charge-sheet was laid against the accused being for offences
under s. 5(2) read with s. 5(1) (d) of the Prevention of
Corruption Act and s. 161 of the Indian Penal Code.
All that has been mentioned in the previous paragraph
was what the prosecution set out to prove before the Trial
Court. But many of the witnesses turned volte face. P.W. 3
stated in his evidence that on the first occasion when he
went to the Police Station to obtain delivery of his scooter
rickshaw it was not the accused that was present but one
Hawaldar. It was the Hawaldar and not the accused that
demanded the bribe of Rs. 60 from him. According to him at
the time of the raid, when he, P.W. 6 and Kewal Krishan went
inside the Police Station they found the accused there and
asked him to take the sum of Rs. 60 and return the scooter
rickshaw. P.W. 3 stretched his hand with the money towards
the pocket of the accused’s trousers but the accused said
the money might be paid to the person for whom it was meant.
He refused to receive the money and jerked P.W. 3’s hand
with his hand as a result of which the notes came to be
flung across the wall into the neighbouring room. He told
the Inspector that the notes had been flung across the wall
and that the accused had neither demanded the amount from
him nor accepted the money from him. On the other hand the
accused had refused to take the money from him. The
Inspector recovered the notes from the neighbouring room,
placed them on the table and thereafter subjected the
handkerchief and the pocket of the accused’s trousers to the
phenol phthelene test. The implication of this part of the
evidence was that it was as a result of the handling of
these articles by the Inspector that they came to have
phenol phthelene powder and that was the reason why the
solution turned pink. P.W.3 was treated as hostile and
cross-examined by the prosecution with reference to the
earlier statements made by him. P.W. 6 followed suit and he
too was declared hostile and cross-examined by the
prosecution with reference to his earlier statements.
Of the two panch witnesses Kewal Krishan was not
examined as he had become mentally deranged before the trial
of the case. Davinder Kumar was examined as P.W. 4. This
witness supported the prosecution case in some particulars
but in regard to other particulars he made statements
contrary to his earlier statements. He was also treated as
hostile and cross-examined by the prosecution. In substance
his chief-examination was to the affect that P.W.3, P.W.6
and
1058
Kewal Krishan went inside the Police Station, while he
stayed outside with the Inspector P.W. 8. P.W.3, P.W.6 and
Kewal Krishan came out after sometime and stated that the
accused had accepted the bribe. The raiding party then went
inside. On seeing the Inspector the accused got suspicious
and threw away the currency notes across the wall into the
neighbouring room. In examination-in-chief he also stated
that before they proceeded to the Police Station for the
raid, statement of both P.W.3 and P.W.6 had been recorded.
He stated that after the bribe was given P.W.3 also came out
and signalled to P.W.8 that the bribe had been given.
Another statement made by him in chief-examination was that
he was unable to remember if the Inspector questioned the
accused at the time of the raid. As these statements were
contrary to his earlier statements he was cross-examined by
the prosecution.
Paras Nath, (P.W.8) spoke to the complaint made to him
by P.W.3., the action that he took, the raid etc. Regarding
the actual raid he stated that P.W.3, P.W.6 and Kewal
Krishan first went inside the Police Station. After
sometime, P.W.6 and Kewal Krishan came out and signalled
that P.W.3 had passed the bribe money and that P.W.3 and the
accused were in the room. When he went in, the accused took
out the notes from the right side pocket of his trousers and
threw them across the wall into the adjoining room. He then
spoke to the test made by him etc.
On this evidence both the learned Sessions Judge and
the High Court found the accused guilty of the two offences
with which he was charged. Shri Frank Anthony, learned
counsel for the appellant submitted that the Courts below
had made free use of the statements made by the witnesses in
the course of the investigation as if such statements were
substantive evidence. If those statements were excluded from
consideration there would be no evidence of any demand or
acceptance of bribe by the accused. All that the prosecution
would be left with would be the evidence of the Inspector
and P.W.4 to the effect that the accused took out the
currency notes from the right side pocket of his trousers
and flung them across the wall into the adjoining room. That
evidence according to the learned counsel would not be
sufficient, even if accepted, to draw the presumption under
s. 4(1) of the Prevention of Corruption Act. Reliance was
placed upon the decision of this Court in Sita Ram v. The
State of Rajasthan,(1) and Suraj Mal v. The State (Delhi
Administration (2).
1059
The learned counsel was right in his submission about
the free use made by the Courts below of statements of
witnesses recorded during the course of investigation.
Section 162 of the Code of Criminal Procedure imposes a bar
on the use of any statement made by any person to a Police
Officer in the course of investigation at any enquiry or
trial in respect of any offence under investigation at the
time when such statement was made, except for the purpose of
contradicting the witness in the manner provided by s.145 of
the Indian Evidence Act. Where any part of such statement is
so used any part thereof may also be used in the re-
examination of the witness for the limited purpose of
explaining any matter referred to in his cross-examination.
The only other exceptions to this embargo on the use of
statements made in the course of an investigation, relates
to the statements falling within the provisions of s. 32(1)
of the Indian Evidence Act or permitted to be proved under
s. 27 of the Indian Evidence Act. S.145 of the Evidence Act
provides that a witness may be cross-examined as to previous
statements made by him in writing and reduced into writing
and relevant to matters in question, without such writing
being shown to him or being proved but, that if it is
intended to contradict him by the writing, his attention
must, before the writing can be proved, be called to those
parts of it which are to be used for the purpose of
contradicting him. The Courts below were clearly wrong in
using as substantive evidence statements made by witnesses
in the course of investigation. Shri H. S. Marwah, learned
counsel for the Delhi Administration amazed us by advancing
the argument that the earlier statements with which
witnesses were confronted for the purpose of contradiction
could be taken into consideration by the Court in view of
the definition of “proved” in section 3 of the Evidence Act
which is, “a fact is said to be proved when, after
considering the matters before it, the Court either believes
it to exist or considers its existence so probable that a
prudent man, ought, in the circumstances of the particular
case to act upon the supposition that it exists.” We need
say no more on the submission of Shri Marwah except that the
definition of proved does not enable a Court to take into
consideration matters, including statements, whose use is
statutorily barred.
After excluding irrelevant material we are left with
the evidence of P.W.8 and that of P.W.4 whose evidence
corroborates that of P.W.8 in several material particulars.
We, however, wish to say that the evidence of P.W.8 is
entirely trustworthy and there is no need to seek any
corroboration. We are not prepared to accept the submission
of Shri Frank Anthony that the fact that he is the very
Police Officer who laid the trap should be sufficient for us
to insist upon
1060
corroboration. We do wish to say that there is no rule of
prudence which has crystallized into a rule of law, nor
indeed any rule of prudence, which requires that the
evidence of such officers should be treated on the same
footing as evidence of accomplices and there should be
insistence on corroboration. In the facts and circumstances
of a particular case a Court may be disinclined to act upon
the evidence of such an officer without corroboration, but,
equally, in the facts and circumstances of another case the
Court may unhesitatingly accept the evidence of such an
officer. It is all a matter of appreciation of evidence and
on such matters there can be no hard and fast rule, nor can
there be any precedential guidance. We are forced to say
this because of late we have come across several judgments
of Courts of Session and sometimes even of High Courts where
reference is made to decisions of this Court on matters of
appreciation of evidence and decisions of pure question of
fact. While on this subject of appreciation of evidence we
may also refer to an argument of Shri Frank Anthony based on
the observations of a learned single judge in Kharaiti Lal
v. The State,(1) that persons holding clerical posts and the
like should not be called as panch witnesses, as such
witnesses could not really be called independent witnesses
as they would always be under fear of disciplinary action if
they did not support the prosecution case. We do not think
we can accept the submission of Shri Frank Anthony. The
respectability and the veracity of a witness is not
necessarily dependent upon his status in life and we are not
prepared to say that Clerks are less truthful and more
amenable than their superior officers.
From the evidence of P.W.8 and that of P.W.4 we may
take the following facts as established: P.W.3 made a report
to P.W.8. He produced six currency notes of the denomination
of ten rupees whose numbers were noted and which were
treated with phenol phthelene powder. Thereafter the notes
were handed over to P.W.3. P.W.3, P.W.6 and Kewal Krishan
went inside the Police Station. After sometime P.W.6 and
Kewal Krishan came out and gave a signal. P.W.8 then went
inside the Police Station. On seeing him the accused who was
inside the Police Station with P.W.3 took out some currency
notes from the right side pocket of his trousers and threw
them across the partition wall into the adjoining room. The
notes which were so thrown out by the accused, were found to
be the same notes which had been treated with phenol
phthelene and handed over to P.W.3 before the raid. The
handkerchief which was taken out of the right side pocket of
the trouser of the accused as well as the
1061
right side pocket itself were subjected to a test which
showed that they too had come into contact with phenol
phthelene powder. It may be noted that the circumstance that
the handkerchief (Ex.P-4) recovered from the right side
pocket of the pant on the person of the accused was
subjected to the colour test which indicated the presence of
phenol phthelene powder on that handkerchief was put to the
appellant in his examination under section 313, Criminal
Procedure Code. Instead of giving any explanation as to how
this phenol phthelene powder came on the handkerchief lying
in his pocket, the appellant replied. “I know nothing about
it.” From these facts the irresistible inference must
follow, in the absence of any explanation from the accused,
that currency notes were obtained by the accused from P.W.3.
It is not necessary that the passing of money should be
proved by direct evidence. It may also be proved by
circumstantial evidence. The events which followed in quick
succession in the present case lead to the only inference
that the money was obtained by the accused from P.W.3. Under
s.114 of the Evidence Act the Court may presume the
existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural
events, human conduct and public and private business, in
their relation to facts of the particular case. One of the
illustrations to s.114 of the Evidence Act is that the Court
may presume that a person who is in possession of the stolen
goods soon after the theft, is either the thief or has
received the goods knowing them to be stolen, unless he can
account for his possession. So too, in the facts and
circumstances of the present case the Court may presume that
the accused who took out the currency notes from his pocket
and flung them across the wall had obtained them from P.W.3,
who a few minutes earlier was shown to have been in
possession of the notes. Once we arrive at the finding that
the accused had obtained the money from P.W.3, the
presumption under s.4(1) of the Prevention of Corruption Act
is immediately attracted. The presumption is of course
rebuttable but in the present case there is no material to
rebut the presumption. The accused was, therefore, rightly
convicted by the Courts below.
We will now refer to the two decisions of this Court on
which Shri Frank Anthony relied. In Sita Ram v. The State of
Rajasthan, (supra) the evidence of the complainant was
rejected and it was held that there was no evidence to
establish that the accused had received any gratification
from any person. On that finding the presumption under
s.4(1) of the Prevention of Corruption Act was not drawn.
The question whether the rest of the evidence was sufficient
to establish that the accused had obtained the money from
the complainant
1062
was not considered. All that was taken as established was
the recovery of certain money from the person of the accused
and it was held that mere recovery of money was not enough
to entitle the drawing of the presumption under s.4(1) of
the Prevention of Corruption Act. The Court did not consider
the further question whether recovery of the money alongwith
other circumstances could establish that the accused had
obtained gratification from any person. In the present case
we have found that the circumstances established by the
prosecution entitled the Court to hold that the accused
received the gratification from P.W.3. In Suraj Mal v. The
State (Delhi Administration) (supra) also it was said mere
recovery of money divorced from the circumstances under
which it was paid was not sufficient when the substantive
evidence in the case was not reliable to prove payment of
bribe or to show that the accused voluntarily accepted the
money. There can be no quarrel with that proposition but
where the recovery of the money coupled with other
circumstances leads to the conclusion that the accused
received gratification from some person the Court would
certainly be entitled to draw the presumption under s.4(1)
of the Prevention of Corruption Act. In our view both the
decisions are of no avail to the appellant and as already
observed by us conclusions of fact must be drawn on the
facts of each case and not on the facts of other cases. In
other words there can be no precedents on questions of
facts. The appeal is, therefore, dismissed.
P.B.R. Appeal dismissed.
1063