JUDGMENT
1. The appellant has been convicted of offences under S. 161, Penal Code (for short ‘IPC’) and S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act (hereinafter referred to as ‘the Act’) by a Special Judge vide Judgment dt. 17th August 1982. He has been sentenced to rigorous imprisonment for one year on the first count and rigorous imprisonment for one year and a fine of Rs. 200/- on the second count. The sentence of imprisonment on both the counts has, however, been made to run concurrently. Feeling aggrieved, he has preferred this appeal against his conviction and sentence.
2. The prosecution case succinctly is that Kishan Lal (P.W. 6) was employed as a scavenger (safai Karamchari) on daily wages in the Municipal Corporation of Delhi at the relevant time, viz. July 1981. He used to be on duty at Babarpur Road, Shahdara Zone. Shri Madan Lal Guglani was the Sanitary Inspector and was overall in charge of the scavenging force employed in that area. The appellant was also employed as a scavenger in the same area on permanent basis and he used to work for and on behalf of M. L. Guglani and used to mark attendance of the scavengers. He used to harass the complainant-Kishana Lal in case the latter got late in reporting on duty.
3. In July 1981 the complainant-Kishana Lal wanted to take leave in connection with the marriage of a relation of his. He talked to the appellant with regard to the same on 3rd July 1981. The appellant told him that he would charge Rs. 4/- per day from him i.e. the complainant and in case he wanted leave for eight days he would have to pay Rs. 32/- in all. However, the appellant assured him that on the aforesaid amount being paid to him no superior officer would question him and he would be marked even present in the muster-roll. The appellant further told him that in case he did not pay the said amount he would be marked absent and would be produced before superior officer. Kishan Lal told the appellant that he would make arrangement for the necessary amount. However, he resented the demand made by the appellant for the said amount. So, he approached Anti Corruption branch of Delhi Police. Inspector Kewal Krishan (P.W. 9), who was then S.H.D. Anti Corruption Branch recorded statement Ex. PA of Kishan Lal on 4th July 1981 and the latter signed it in token of its correctness. Inspector Kewal Krishan then arranged for two panch witnesses and called Shri Kulbir Singh (P.W. 7) and Jamna Dass (P.W. 8), both of whom were working as Sub-Inspectors in the office of the Registrar of Co-operative Societies, Delhi, to join the investigation as panch witnesses. The complainant presented currency notes of the total value of Rs. 32/- to Inspector Kewal Krishan who entered numbers thereof in his pre-raid report Ex. PB which was duly signed by the complainant as well as both the panch witnesses. The currency notes were treated with phenolphthalein powder in the presence of the panch witnesses and the complainant. The procedure was explained to them and by way of demonstration Kulbir Singh was asked to touch the currency notes with his right hand which he did. His hand was then dipped in the colourless solution of sodium carbonate whereupon it turned pink. The Inspector and the panch witnesses then washed their hands and the currency notes were given to Krishan Lal along with necessary instructions. At about 11.40 a.m. the raid party comprising Inspector Kewal Krishan, complainant-Kishana Lal, panch witnesses Kulbir Singh and Jamna Dass, and Prithvi Raj Bhatia, another Inspector of Police in Anti Corruption Branch (P.W. 11) arrived at Ghonda Maujpur Road by taxi. The two panch witnesses were made to sit in the shop of a tea vendor while other members of the raid party took positions by the side of the road opposite the tea shop. Kishan Lal went in search of the appellant but he was not available at the place where he used to take roll call. However, he was able to contact appellant after about an hour and he brought the appellant along with him to the tea shop. Tea was offered to the appellant. The complainant then told the appellant that he wanted to proceed on leave. The appellant demanded a sum of Rs. 32/- from him assuring him that in case he paid the said amount he i.e. complainant, need not worry about anything and he would mark the presence of the complainant regularly on each and every day during his absence from duty. Thereupon, the complainant gave Rs. 32/- to the appellant. The latter took the tainted currency notes in his right hand and tried to move out after collecting the aforesaid amount. At this stage, the panch witnesses came out of the tea shop and gave a pre-arranged signal by touching their heads. On receipt of the signal the police party arrived at the spot and challenged the appellant. He was apprehended and currency notes Exs. P1 to P4 were recovered from the right hand of the appellant. The numbers of the currency notes Exs. P1 to P4 were compared with the numbers mentioned in the pre-raid report and right hand of the appellant was dipped in the colourless solution of sodium carbonate and it turned pink. The said solution was then transferred into a bottle Ex. P5 which was duly sealed at the spot. The currency notes were taken into possession vide memo Ex. P.W. 6/A while the bottle was taken into possession vide memo Ex. P.W. 6/B. These memos were duly attested by the complainant as well as the panch witnesses. Personal search of the appellant was also effected and memo Ex. P.W. 6/C was prepared in respect thereof.
4. The prosecution rests on eleven witnesses, of whom Kishan Lal (P.W. 6) is the complainant and the star witness of prosecution. He has deposed to the foregoing facts in detail. Kulbir Singh (PW7), Jamna Dass (PW8) and Inspector Kewal Krishan have corroborated the testimony of the complainant in all essential details. Inspector Prithvi Raj too has corroborated the prosecution version with regard to the recovery of the tainted currency notes Exs. P1 to P4 from the right hand of the appellant under the foregoing circumstances. It may be noticed in particular that both Kulbir Singh and Jamna Dass, who were sitting inside tea vendor’s shop and could hear the conversation which had taken place between the appellant and the complainant, have deposed to the fact of the appellant telling the complainant that he would have to pay Rs. 32/- in case he wanted leave and the appellant further assured him that on the said amount being paid he would ensure that everything was done properly and he would also manage that attendance of the complainant was duly recorded during the days of his absence from duty.
5. Shri Sri Pal Gupta (PW3) is employed as Sanitary Guide in the Municipal Corporation of Delhi (Shahdara Zone) He deposed that one Birbal was also employed as a Sanitary Guide in Shahdara Zone, that Birbal was on leave from 22nd June 1981 to 15th July 1981 on account of his son’s marriage and therefore, the duty of Birbal was also assigned to him i.e. Sri Pal Gupta, during the aforesaid period. He further stated that Kishan Lal was working as a safai Karamchari on daily wages in those days and he was deployed in the Beat of Birbal, Sanitary Guide.
6. The rest of the prosecution witnesses are of formal nature. I will refer to their evidence if and when need for the same arises.
7. The appellant denied to prosecution version in toto except that he was employed as a safai Karamchari. However, he asserted that he was posted in the area of Usmanpur and not at Babarpur Road where Kishan Lal used to work at the relevant time. He filed a written statement spelling out his defense at length. He took the stand that in July 1980 the complainant was in need of some money. So, he approached one Oman S/o Thawaria, who was also working as a safai karamchari in that very area for lending him Rs. 50/-. However, Oman agreed to lend Rs. 50/- to the complainant on the condition that he (i.e. the appellant) stood surety for repayment of the loan. Accordingly receipt Ex. PW 6/DB was executed by Kishan Lal in token of his receiving the amount of Rs. 50/- as loan at 2% per month by way of interest. Subsequently, the complainant paid Rs. 30/- to Oman and an endorsement to that effect was made in receipt Ex. PW6/DB. Thereafter the complainant did not pay anything towards the loan. So, Oman approached him i.e the appellant, to persuade the complainant to repay the balance amount. Thereupon, both he i.e. the appellant, and Oman went to the complainant twice and asked him to pay the balance amount but the latter took it ill. However, he said in an angry mood that he would pay the balance amount of Rs. 32/- after two days. On the date of the raid the complainant contacted him i.e. the appellant, while the latter was passing by the side of the road on his way from Shahdara to his village Ghonda Maujpur. That place was near the place where roll call of the safai Karamcharis used to be taken. The complainant expressed his desire to pay the balance amount and also requested him to take tea at a nearby tea shop. Hence, he accompanied the complainant to the tea shop and the complainant paid him Rs. 32/- as representing the balance amount payable to Oman. The complainant then came out of the shop at once and got him falsely implicated in this case by officials of Anti Corruption Branch. He further asserted that it was the duty of the Sanitary Guide to mark the attendance of safai karamcharis and he himself being a safai karmchari was not authorised to take roll call and he never recorded the attendance of the complainant or any other safai karamchari. Thus, according to him, only Sri Pal Gupta was competent to take the muster roll in the absence of Birbal, Sanitary Guide of the area who had proceeded on leave. He asserted that even the Sanitary Inspector was not empowered to mark the attendance of the safai karamcharis and he had no concern whatsoever with Shri M. L. Guglani. He denied having demanded any money from the complainant in connection with his leave.
8. The appellant examined two witnesses in defense, namely, Shri Kanu Singh Tyagi, Sanitary Guide and Shri Oman. The former simply deposed that a Sanitary Inspector was not authorised to take the roll call of the safai Karamcharis and it was the job of the Sanitary Guide. The latter has supported the defense version with regard to his having loaned Rs. 50/- to the complainant in July 1980 on the appellant standing surety for repayment of the same. He testified that receipt Ex. DB was executed and signed by Kishan Lal complainant at the time of loan and he also signed the endorsement regarding repayment of Rs. 32/- to him, i.e. Shri Oman, subsequently which was Ex. Dc.
9. The learned counsel for the appellant has assailed the conviction of the appellant for the aforesaid offences primarily on the ground that the prosecution version suffers from intrinsic infirmities, is highly improbable and fails to inspire confidence. He has canvassed with considerable fervour that it is established on record beyond any shadow of doubt that it was not the duty of the appellant to call muster-roll or deal with any application for leave etc. of the scavenging staff employed in that area. On the other hand it has been proved by the testimony of no person other than Sri Pal Gupta (PW3) that it was he who used to mark the attendance of the safai karamcharis in the concerned beat in the absence of Shri Birbal, Sanitary Guide, who happened to be on leave from 22nd June 1981 to 15th July 1981. It is no doubt true that according to this witness the duty of Birbal as Sanitary Guide was assigned to him during the absence on leave of the former and it was he who used to take the roll call of the safai karamcharis. During cross-examination he went to the extent of even saying that the appellant never asked him about marking the presence of any person in the case of his being absent. Hence, he (i.e. the appellant) never asked him to mark presence of Kishan Lal in the latter’s absence. He further asserted that only the Sanitary Guide was authorised to take the attendance while the function of the Sanitary Inspector was to check the same. Significantly he did not produce the attendance register dt. 4th July 1981. Before any reliance can be placed on the testimony of this witness it has to be borne in mind that he had to depose so and he could not for a moment admit or concede that the duty assigned to him by the concerned authority was being performed by someone else subordinate to him. So, to expect this witness to depose something contrary to his own interest would be preposterous. He has simply said what as a prudent Govt. official he ought to have said in his own interest. Needless to say that no Govt. official in his senses would admit the prevalence of a mal-practice or dereliction of duty or existence of any racket in his office or the staff working under him. So, the mere fact that he has been examined as a prosecution witness which I think has been done by the prosecution to be fair enough to all concerned would hardly make any difference. If things had been happening in strict compliance with official procedure, there could hardly be any occasion for complaint but unfortunately it would appear that it was not so. The precise grievance of the complainant-Kishana Lal is that it was the appellant who as agent/henchman of M. L. Guglani used to do the whole job. It is unfortunate that the investigating agency did not care to seize the relevant muster-roll and probe further the fact that the entries therein were being made by the appellant, even assuming that the roll call must have been taken by the Sanitary Guide also from time to time.
10. That apart, not much would turn on this aspect of the matter because while S. 161 IPC speaks of receipt of gratification by a public servant as a motive or reward for doing or forbearing to do an official act which would suggest that the bribe is given in consideration of some official act or conduct on the part of the concerned public servant but in law the incapacity of Govt. servant to show any favor or render any service in connection with official duties does not necessarily take the case out of the purview of the said section. In Dhaneshwar Narain Saxena v. Delhi Administration, , the Supreme Court while construing the scope of S. 5(1)(d) of the Act which defines the offence of “criminal misconduct in discharge of official duty” observed :
“The legislature advisedly widened the scope of the crime by giving a very wide definition in S. 5 with a view to punish those who, holding public office and taking advantage of their official position, obtain any valuable thing or pecuniary advantage. The necessary ingredient of an offence under S. 161, Penal Code, is the clause “as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions ……” but it need not be there in order to bring an offence under S. 5 of the Act home to the accused. The offence under this section is, thus, wider and not narrower, than the offence of bribery as defined in S. 161, I.P.C. The words “in the discharge of his duty” do not constitute an essential ingredient of the offence. The mistake in the judgment of this Court in the aforesaid ruling in has arisen from reading those words, which are part merely of the nomenclature of the offence created by the Statute, whose ingredients ……….”
11. It is, therefore, not necessary to constitute an offence under Clause (d) of S. 5(1) that public servant must do something in connection with his own duty and, thereby, obtain any valuable thing or pecuniary advantage. As said by the Supreme Court in the aforesaid case :
“It would be anomalous to say that a public servant has misconducted himself in the discharge of his duty. “Duty” and “misconduct” go ill together. If a person has misconducted himself as a public servant, it would not ordinarily be in the discharge of his duty, but the reverse of it.”
12. In Chaturdas Bhagwandas Patel v. State of Gujarat, , the appellant who was a head constable had induced the complainant to give a bribe under the threat that he would otherwise be implicated on a charge of abduction of a woman then in police custody, arrested, handcuffed and then paraded. In fact there was no report or complaint registered that the complainant had abducted that woman. The prosecution successfully proved that the appellant had accepted a gratification, viz. Rs. 500/- from the complainant which was not his legal remuneration. It was held by the Supreme Court that the presumption available under S. 4(1) of the Act would immediately arise and the burden shifted on to the appellant to prove that the money was not accepted as a motive or reward as is mentioned in S. 161 IPC. It further observed that :
“The mere fact that no case of abduction or of any other offence had been registered against Ghansham Singh in the police station or that no complaint had been made against him to the police by any person in respect of the commission of an offence, could not take the act of the appellant in demanding and accepting the gratification from Ghansham Singh out of the mischief of S. 161, Penal Code. The section does not require that the public servant must, in fact, be in a position to do the official act, favor or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver “with any other public servant” and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favor or forbearance which he holds himself out as capable of doing. This is clear from the last explanation appended to S. 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, was a reward for doing what he has not done, comes within the purview of the words “a motive or reward for doing.” The point is further clarified by illustration (c) under this section. Thus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghansham Singh was, in fact, false, this will not enable him to get out of the tentacles of S. 161, although the same act of the appellant may amount to the offence of cheating, also see Mahesh Prasad v. State of U.P. ; Dhaneshwar Narain Saxena v. Delhi Administration, ” :
13. Indeed, there is a long catena of authority to the effect that in order to raise a presumption against an accused person under S. 4(1) of the Act what the prosecution has to prove is that the accused person has received a gratification “other than legal remuneration” and if it is shown as in the present case it has been shown, that the accused received the stated amount and that the said amount was not legal remuneration then the condition prescribed by the section is satisfied. Indeed, in such a situation the court is required to draw a presumption that the person received that gratification as a motive or reward such as is mentioned in S. 161 IPC and the court has no choice in the matter. (See C. I. Emden v. State of Uttar Pradesh, , Dhanvantrai Balwantrai Desai v. State of Maharashtra, , V. D. Jhingan v. State of Uttar Pradesh, and State of Assam v. Krishna Rao, ).
14. It is thus manifest that to constitute an offence under S. 161 it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver with any other public servant and the giver gives the money under that belief. In the instant case, the receipt of Rs. 32/- by the appellant was under circumstances which clearly warrant that he had assured the complainant that in case he parted with Rs. 32/- his interest would be fully watched and he would be marked present even when absent. Thus, receipt of illegal gratification by the appellant as a public servant stands amply proved.
15. Reliance is, however, placed by the learned counsel for the appellant on Trilok Chand Jain v. State of Delhi, , in which having regard to the facts of the case the following observations were made by Sarkaria, J. who spoke for the Court :
“One of the essential ingredients of the offence under S. 5(1)(b) of the Prevention of Corruption Act and S. 161 of IPC is that the gratification must have been received by the accused as “a motive or reward” for committing an act or omission in connection with his official functions. It must be shown that there was an understanding that the bribe was given in consideration of some official act or conduct. It is true that in law the incapacity of the government servant to show any favor or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions. Nevertheless, it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or forbearing to do any official act or for showing any favor or disfavor in the exercise of his official functions.”
16. A perusal of the aforesaid decision shall, however, show that these observations were made by His Lordship in the context of the particular facts of the case. What had happened was that the complainant S. K. Jain had agreed to pay a sum of Rs. 100/- as illegal gratification to one S. P. Gupta, as Inspector of Delhi Electric Supply Undertaking for supplying electric connection to his factory. However, at the appointed time S. P. Gupta did not turn up personally to collect the amount and instead he deputed the appellant-Trilok Chand Jain, a permanent labourer working under him, to the factory of the complainant for this purpose. The appellant told the complainant that he had been sent by Inspector Gupta and that the money be given to him. It was under these circumstances that the appellant was apprehended by the raiding party present there pursuant to a pre-arranged plan. On these facts, the Supreme Court observed that :
“The presumption, therefore, can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still-born.”
17. Obviously the requisite intention could not be attributed to the appellant Trilok Chand Jain in the said case because according to the testimony of S. K. Jain-complainant himself, it was Inspector Gupta who had demanded that money as a motive or reward for expediting the installation of the power connection and the role of the appellant was considered to be no more than that of a carrier. Hence, the drawing of statutory presumption under S. 4(1) was considered to be antithetical to the prosecution story itself. For obvious reasons this decision is of no avail to the appellant, rather the case of Chaturdas Bhagwandas Patel (1976 Cri LJ 1180) (SC) would squarely apply to the facts of the instant case.
18. Reliance has also been placed by the learned counsel for the appellant on a decision of this Court (Avadh Behari Rohatgi, J.) in Criminal Appeal No. 334/74 decided on 24th July 1982 : (reported in 1983 Cri LJ NOC 5). The said decision primarily rests on the decision in Trilok Chand Jain (1977 Cri LJ 254) (SC) (supra). It may also be noticed that none of the prosecution witnesses had supported the testimony of the complainant-Raghbir Sehgal in the said case. So the only question was whether the appellant’s conviction therein could be sustained on the sole testimony of the complainant. Obviously the said decision turns on its own peculiar facts and no help can be derived by the appellant there from.
19. Once the presumption of law available under S. 4(1) of the Act is drawn, it is for the accused to prove that the gratification received by him was not illegal or meant as a motive or reward for any favor shown to the bribe giver. The words “unless the contrary is proved” mean that the presumption used by S. 4 has to be rebutted by proof and not by some explanation which may be merely plausible. Of course, the required proof need not be such as is expected for sustaining a criminal conviction. It need only establish a high degree of probability. As said by the Supreme Court in Dhanvantrai Balwantrai Desai (1964 (1) Cri LJ 437) (supra) :
“Of course, it is open to the accused to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one.”
20. Reference in this context be also made to V. D. Jhingan and Chaturdas Bhagwandas Patel (1966 Cri LJ 1357) (SC) (supra). In the latter case it was observed :
“…….. the burden which rests on an accused to displace this presumption, is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonably probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in S. 161.”
21. It is, therefore, to be seen whether the appellant has been able to rebut the legal presumption arising against him under S. 4(1) of the Act.
22. It bears repetition that the document Ex. PW6/DB is the main stay of defense. It is a receipt dt. 21st July 1980 which admittedly bears the signatures of the complainant-Kishana Lal. DW2, Oman has testified to the circumstances under which a loan of Rs. 50/- was advanced by him to the complainant-Kishana Lal in July 1980 when both of them were working as safai Karamchari at Ghonda. The explanation given by Kishan Lal complainant during the course of his cross-examination is that the mother-in-law of his sister died on 12th August 1981. So he applied for leave for the said date and remained on leave for two days in connection therewith. However, Shri Madan Lal Guglani, Sanitary Inspector asked him to give an affidavit with regard to his absence as his application for leave for the said date had been lost. So he filed an affidavit as required by the Sanitary Inspector but that too was lost at their (i.e. Sanitary Inspector’s office) end. He then furnished a copy of the affidavit to the Sanitary Inspector but the same too was lost. On inquiry by him the Sanitary Inspector told him that the same would be returned to him after an entry to that effect had been made in the record. Thereafter, the Sanitary Inspector apprised him that even the copy of the affidavit had been misplaced. So, he contended that in all probability the writing Ex. DB had been made by the defense on the copy of the affidavit after having torn off the written portion there from. He further explained that the affidavit given by him was to the effect that mother-in-law of his sister had died. He filed the affidavit attested by a Magistrate of Shahdara but the copy of the same was unattested. He vehemently denied having written the document Ex. DB or having taken any loan from Oman who, according to the complainant, was not even known to him.
23. The learned counsel for the appellant has urged with considerable vehemence that the explanation furnished by the complainant-Kishana Lal is simply preposterous and conjectural and the factum of loan advanced by Oman stands amply proved by cogent evidence, especially in view of the admission on the part of the complainant that the document Ex. DB bore his signatures. However, as stated above, the defense evidence has been disbelieved by the trial court and I think for cogent reasons. Even a cursory glance on the document Ex. DB would show that the endorsement dt. 25th March 1981 regarding payment of Rs. 30/- has been inserted in a very narrow space which was available between two pre-existing signatures of the complainant, one below the other. The crammed writing at point ‘A’ surely countenances this conclusion and it renders the genuineness of the whole document highly suspicious. It would also be pertinent to notice here that a suggestion was made to both the panch witnesses that on interrogation by the police the appellant told them that he had received Rs. 32/- from the complainant towards the payment of debt due to one Oman but both of them refuted the same categorically. Further, the testimony of both these witnesses is very positive and consistent on the point that the appellant had told the complainant in their presence that in case the latter wanted leave, he would have to pay Rs. 32/- for the same. The appellant further assured the complainant that in case the said amount was paid he would manage the attendance of the complainant and it was on this assurance that the complainant paid him a sum of Rs. 32/-. In view of this forth-right and clear evidence, I find no cogent ground to accept the defense version. Significantly the complainant has paid heavily for this bold but perhaps indiscreet act of his. As stated by him, he has not yet been taken back in the employment of the Municipal Corporation by the Sanitary Inspector Shri Madan Lal after he proceeded on leave and filed the alleged affidavit at the instance of Shri Madan Lal. Obviously he incurred the wrath of Shri Madan Lal for lodging this complaint and he has been punished for the same, being just a daily wager, so that the others like him do not have the temerity to follow in his foot-steps.
24. Lastly, the learned counsel for the appellant has contended with considerable fervour that no reliance should be placed on the testimony of the panch witnesses who are petty Govt. servants and have deposed falsely under the fear that they may be proceeded against departmentally in case their testimony did not conform to their statements to the police under S. 161, Code of Criminal Procedure (for short “Cr.P.C.”). He has invited my attention in this context to the admission on the part of both the witnesses that in case a witness departs from his statement recorded under S. 161 Cr.P.C. he is proceeded against departmentally. It is rather astonishing that a Govt. servant should be proceeded against departmentally for misconduct merely because he does not testify in Court in conformity with his earlier police statement.
There is no presumption of law that the statement of a witness recorded by an investigating officer under S. 161 Cr.P.C. is truthful. So the purpose of contradicting a witness who has deposed to certain facts in Court with his earlier police statement is primarily to shake his credit on the ground that he has made contradictory statements on two different occasions. Hence, the question whether the credit of a witness has been impeached successfully or not depends on various factors including, of course, the contradictions, if any, which may appear in his deposition in Court and his previous statement to the police.
It is highly doubtful that the giving of evidence by a Govt. servant in a case like this can be said to be in performance of his official duties so as to attract penal consequences by way of departmental action as suggested. Anyhow, it would appear that the panch witnesses, in the instant case, are labouring under this impression and, therefore, it cannot be said that their testimony is totally free from any kind of constraints. This will simply put the Court on guard to scrutinise their evidence with greater care and circumspection. It has been repeatedly held by the Supreme Court that :
“In appreciating oral evidence, the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes. Where the witness is found to be untruthful on material facts that is an end of the matter. Where the witness is found to be partly truthful or to spring from ………. tainted sources, the Court may take the precaution of seeking some corroboration, adequate and reasonable to meet the demands of the situation, but a court is not entitled to reject the evidence of a witness merely because they are Government servants, who, in the course of their duties or even otherwise, might have come into contact with investigating officers and who might have been requested to assist the investigating agencies. If their association with the investigating agencies is unusual, frequent or designed, there may be occasion to view their evidence with suspicion. But merely because they are called in to associate themselves with the investigation as they happened to be available or it is convenient to call them, it is no ground to view their evidence with suspicion.” State of Gujarat v. Raghunath Vamanrao Baxi, .
25. Reference in this context be also made to Hazari Lal v. State, (Delhi Administration), and Kishan Chand Mangal v. State of Rajasthan, 1983 SCC (Cri) 92 : (1983 Cri LJ 1). I have perused the evidence of both the panch witnesses very carefully and I find that the same is quite consistent, truthful and credit-worthy. No doubt, some discrepancies have cropped up in their testimony but they are of trivial and insignificant nature which cannot, by any stretch of reasoning, be magnified into fatal infirmities.
26. To sum up, therefore, I hold that the conviction of the appellant for both the offences, viz. under S. 161 IPC and S. 5(2) read with S. 5(1)(d) of the Act, is well founded and calls for no interference. Even the sentence awarded is not excessive or harsh. Hence, this appeal is dismissed.
27. Appeal dismissed.