PETITIONER:
KISHAN CHAND MANGAL
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT14/10/1982
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
SEN, A.P. (J)
CITATION:
1982 AIR 1511 1983 SCR (1) 569
1982 SCC (3) 466 1982 SCALE (2)879
CITATOR INFO :
D 1985 SC 79 (13)
ACT:
Evidence-Of persons belonging to office-wise, wealth-
wise lower strata of society-Rejection on sole ground of
humble origin-Not justified.
Evidence-Witnesses independent of police influence-
Employees of nationalised banks and institutions receiving
grants from government-Position of.
HEADNOTE:
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-Corruption Department (Dy SP)
requesting for suitable action. A trap was arranged by
smearing 15 currency notes of the denomination of Rs. 10/-
each with phenolphthalein powder and, on the direction of
the Dy SP, 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 complainant, 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
in the colour of the hands into pink.
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, I.P.C.
and s. 5(1)(d) read with s. 5(2) of the Prevention of
Corruption Act, 1947.
The High Court which examined the evidence of the
motbirs agreed with the findings recorded by the trial Court
and dismissed the appeal filed by the appellant.
One of the contentions urged on behalf 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 of bribe pursuant to the demand, the evidence of the
two motbirs had assumed considerable importance and it was
unwise and dangerous to place implicit reliance on their
testimony to convict the appellant
570
as (i) both the motbirs were petty clerks and (ii) by virtue
of their service, they were likely to be under police
influence.
Dismissing the appeal,
^
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 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 unworthy of belief solely on the
ground of their humble position in society. [577-F]
Khairati Lal v. The State, (1965) 1 Delhi Law Times,
362 overruled.
In the instant case it is factually not correct to say
that both the motbirs are petty clerks: one was serving as a
clerk in a nationalised bank and the other 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 rejected on the sole ground that they are
petty clerks. [577-E: 578-A-B]
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 government 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 as independent of police influence.
There is no justification in the submission that the two
motbirs were persons not likely to be independent of police
influence. [578-D-E]
Raghbir Singh v. State of Punjab, AIR 1976 S.C. 91,
distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 45
of 1980
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.
Frank Anthony and S.K. Jain, for the Appellant.
Badri Dass Sharma for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. Appellant Kishan Chand Mangal was convicted
by the learned Special Judge (A.C.D. Cases), Jaipur,
Rajasthan, for
571
having committed offences under section 161, Indian Penal
Code and section 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.
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 left.
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 denomination 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 currency notes produced by the complainant
were smeared with phenolphthalein powder and a memorandum of
the same was prepared. 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 stopped 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
572
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 lift 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 recorded 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 took a 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 drink water from a jug which was lying there. Thereafter
Rajendra Dutt went
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 a 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. SP according to the appellant
asked Rajendra Dutt why he had given a false signal
whereupon the complainant Rajendra Dutt informed the Dy SP
that the bribe money was lying under the pillow whereupon
the Dy SP 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.
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 as 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
Mr. Frank Anthony, learned counsel for the appellant
contended that there are certain features of this case which
would convincingly show that the prosecution case cannot be
accepted. He enumerated the circumstances as: (i) absence of
name of the appellant in the F.I.R. Ext. P-12; (ii) absence
of evidence of demand as on November 20, 1974; (iii) absence
of any prior arrangement 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 probabilised; (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 Dy SP.
High Court has examined the evidence of two motbirs
P.W. 1 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 not 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
575
what is stated in Ext. P-12 is that a Factory Inspector
accompanied by his friend visited the factory of the
appellant and demanded a 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 had
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 contrary the absence of the name 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 year 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 Mangal in Ext. P-12 is hardly of any
significance.
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.I.R. 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 Dy
SP, 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 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
576
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 replied, 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.
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
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 though 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.I.R. Such things find mention in a F.I.R.
only when the victim agrees to grease the palms of the
officer. Absence in such a 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 bribe 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
reliance 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 time. 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 dependent 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. In a country 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(1). 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 observing that they are petty clerks and
cannot be styled as independent witnesses. We have moved far
away in seventeen years and this
578
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.
As a second string to the bow it was urged that Ram
Babu was serving at the relevant time as a 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
employee 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(1), 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 Corruption Department should insist on observing the
safeguard of selecting independent persons as witnesses as
scrupulously 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 and a
teacher in a middle school ? It, therefore, 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
579
clerk. If a Bank Clerk is supposed to be intimately
connected with each account holder in the bank, banking
service would receive 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 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 these
witnesses giving evidence has observed that P.W. 1 Ram Babu
and P.W. 2 Keshar Mal are independent witnesses and 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 witnesses and 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 reject the testimony of both these
witnesses. It was pointed out that according to Ram Babu
both he and Keshar Mal told the Dy SP 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 statement
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 notes 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 omission was pointed
out that while Mahavir Prasad has stated that accused
started quarrelling with him which necessitated summoning
additional police help, both the witnesses while referring
to the
580
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 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 v. Delhi
Administration(1), 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 in a 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 it is
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
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 Dy SP
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 with a strong will would not be upset and may remain
cool and collected. The appellant did pick up a quarrel with
the Dy SP. 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 Dy SP 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
Keshar Mal, evidence of Dy SP Mahavir Prasad, Ext. P-12, the
F.I.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
582
upon the oft quoted passage in Brannan v. Peek(1). 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 Rajendra 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(2). 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 to be
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(3). 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.
583
Therefore, the charge is brought home to the accused
and he has been rightly convicted and the sentence awarded
being the minimum, no case is made out for interfering with
the same.
Accordingly this appeal fails and is dismissed. The
bail bond of the appellant is cancelled and he must
surrender to serve out the sentence.
H.L.C. Appeal dismissed.
584