Sat Pal Vs. Delhi Administration
[1975] INSC 231 (29 September 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
BHAGWATI, P.N.
CITATION: 1976 AIR 294 1976 SCR (2) 11 1976
SCC (1) 727
CITATOR INFO :
F 1979 SC1848 (12) RF 1986 SC 250 (39) R 1986
SC1769 (5) APL 1990 SC 209 (24)
ACT:
Evidence-Trap witnesses and witnesses with
bad antecedents-Necessity for corroboration by independent evidence.
Evidence Act (1 of 1872) ss. 8 and
154-'Hostile' witness-Weight of evidence of-Silence as conduct.
Code of Criminal Procedure (Act S of 1898) s.
162- Statements recorded during investigation-Use of. C
HEADNOTE:
The appellant, an Assistant Sub Inspector,
attached to the railway station was convicted under s. 5(2) read with s. 5(1)(d)
of the Prevention of Corruption Act, 1947, and s. 161, I.P.C. The evidence
against him was that the arrested P.W. 1, took-away Rs. 30/- from him and
demanded an additional Rs. 70/- for releasing him. These facts were spoken to
by P.W. 1 and P.W. 2 and P.W. 8 who were the women companions of P.W. 1. The
evidence regarding the payment of Rs. 70/- and its recovery was spoken to by
P.W. 7, a friend of P.W. 1 who brought the money, and P.W. 9, the Inspector
attached of the Anti Corruption Police who set the trap for catching the
appellant. Two items of circumstantial evidence on which the trial court relied
were, (a) that P.W. 1 was found detained by the appellant at the Police
Station. and (b) that the accused kept silent when P.W. 9 accused him of having
taken a bribe. P.Ws. 3 and 4 were the panch witnesses who were present at the
time of the recovery of the tainted currency notes from the appellant. They
turned 'hostile' to the prosecution but in cross-examination, supported the
prosecution regarding the silence of the appellant when accused of having taken
the bribe. P.W. 3 further supported the prosecution to the extent that the
solution turned pink when the hands and the pocket of the pants of the
appellant were dipped in it.
The conviction of the appellant was confirmed
by the High Court.
Allowing the appeal to this Court,
HELD: (1) I`his Court ordinarily does not
review the evidence and disturb concurrent findings of fact unless the findings
are clearly unreasonable or vitiated by illegality or material irregularity of
procedure or are otherwise contrary to the fundamental principles of natural
justice and fair-play. In the present case the trial court and the High Court
have not only used the statements of certain witnesses in a manner which is
improper or impermissible under the law, but also erred in accepting the
testimony of interested witnesses without the caution and corroboration
requisite in the peculiar circumstances of the case. [20B- D].
(2) There can be no general rule of universal
application for weighing evidence. There ii also no absolute rule that the
evidence of an interested , witness cannot be accepted without corroboration.
But where the witenesses have poor moral fibre and have to their discredit many
bad antecedents, and have a motive to implicate the accused, as P.W. 1, 2, 7
and 8 have against the appellant, it would be hazardous to accept their
testimony in the absence of corroboration on crucial points from independent
sources.
[22G-H].
R. P Arora v. State of Punjab, A.I.R. 1973
S.C. 498, referred to.
(3) P.Ws. 1, 7 and 9 were concerned with the
success of the trap laid for the appellant and as such were intersted
witnesses. Qualitatively, the evidence of P.Ws. 1 and 7 was far inferior to the
testimony of an ordinary interested witness. They were pimps haunting the
railway station to solicit customers for P.Ws. 2 and 8. The accused was a
police officer with an outstanding and unblemished 12 record of l9 years
service and was an obstacle to these witnesses in their. activities. It could
not, therefore, be said that they had no motive to falsely implicate him. [20D-
G; 2ZA-B].
(4) The sum of Rs. 30/- which was alleged to
have been taken away by the appellant from P.W. 1 was not recovered from the
appellant or from anywhere else in the police station. Further, according to
P.W. 7, when the balance of Rs. 70/- had been paid, the appellant did not allow
P.W. 1 to go away. Ordinarily such discrepancies and small improbabilities are
not of much consequence; but when the witnesses are manifestly disreputable
persons, their testimony must pass the test of severe scrutiny and even minor
infirmities may assume importance. [22D-G].
(5) As regards P.W.9, though it has not been
shown that he had any hostile animus against the appellant, or that he was
friendly to P.Ws. 1 or 7, he was the Inspector of the Anti-Corruption Staff of
Police who planned the trap, and was therefore, interested in its success.
Although the power conferred on him did not extend to the investigation of an
offence under s. 161, I.P.C.. he went ahead with the execution of the trap and
the investigation. Not being an independent witness, this evidence could not
furnish the kind of corroboration requisite in the circumstances of the case.
[23E-H].
(6) As regard the circumstantial evidence.
(a) the conduct of the appellant in detaining P.W. 1 for interrogation could be
the innocent act of an honest and duty-conscious Police officer in view of the
immoral activity of P.W. 1 and his companions P.Ws 2 and 8; and (b) assuming
that the silence cf the appellant was admissible as conduct under s.8, Evidence
Act, and not excluded as a statement under s. 162, Cr. P.C., its probative
value in the circumstances. Of the case would be almost nothing. the appellant
explained that he did not protest and resist out of fear, that P.W.9 might make
matters worse for him even for getting bail. It would not be unusual, even for
an innocent officer, to be frightened out of his wits on being suddenly accused
of bribe-taking by a superior offal. [22B- C; 23D-E] (7) Even in a criminal
prosecution, when a witness is cross-examined and contradicted with the leave
of the court by the party calling him, his evidence cannot, as a matter of law,
be treated as wiped off the record altogether. It is for the court to consider
in each case, whether as a result of such cross-examination and contradiction,
the witness stands thoroughly discredited, or can still be believed in regard
to a part of his testimony. If in a given case the whole of the testimony of
such a witness is impugned and in the process, the witness stands squarely and
totally discredited, the Judge should as a matter of prudence, discard his
evidence in to [30D-F] (a) Unlike the law in England, in India, the grant of
permission to cross examine his own witness by a party is not conditional on
the witness being declared 'adverse' or 'hostile'. In fact, in the order
granting such permission it is preferable to avoid such expressions as
"declared 'hostile," "declared unfavorable" etc. Whether it
be the grant of permission under s. 142, Evidence Act, to put leading questions
or leave under s. 154 to ask questions which might be put in Cross-examination
by the adverse party, the Indian Evidence Act leaves the matter entirely to the
discretion of the Court. The discretion is unqualified and untrammeled and is
apart from any question of hostility.
It is to be liberally exercised whenever the
court from the witness's demeanour temper, attitude, bearing, or the tenor and
tendency of his answers, or from a perusal of his previous inconsistent
statement or otherwise, thinks that the grant of such permission is expedient
to extract the truth and to do justice. The grant of such permission does not
amount to an adjudication by the court as to the veracity of the witness. The
fallacy underlying the view that where a party calling the witness requests the
court to declare him a "hostile" witness and with the leave of the
court cross-examines the witness, the latter's evidence should be excluded
altogether in criminal cases, stems from the assumption that the only purpose
of cross-examination of a witness is to discredit him. There is another equally
important object of cross-examination, namely to elicit admissions of facts
which would help build the case of the cross-examiner. When a party with the
leave of 13 the court, confronts his witness with his previous inconsistent
statement he A also does so in the hope that the witness might revert to what
he had stated previously, because, if the departure from the prior statement is
not deliberate but duo to faulty memory or a like cause, there is every
possibility of the witness veering round to his former statement. The rule
prohibiting a party from putting questions in the manner of cross-examination
or in a leading form to his own witness is relaxed not because the witness has
already forfeited call right to credit but because from his antipathetic
attitude or otherwise, the court may feel that for doing justice, his evidence
will be more fully given, the truth more effectively extricated and his credit
more adequately tested by questions put in a more pointed, penetrating and
searching way. [26 E-H; 27 F-28 B].
(b) Section 154 speaks of permitting a party
to put to his own witness questions which might be put in cross- examination.
It is not necessarily tantamount to cross examining the witness.
Cross-examination, strictly speaking, can only be by the adverse party.
Therefore, neither the party calling human, nor the adverse party is, in law,
precluded from relying on any part of the statement of such a witness. [28
C-E]. C (c) The contention of the appellant that this Court in Jagir Singh v.
State A.I.R. 1975 S.C. 1400, held that when a prosecution witness, being
hostile, was cross-examined by the public prosecutor, his entire evidence is to
be discarded as a matter of law, is misconceived. In that case the Court did
not reject the evidence as a rule of law, but only after scrutinising it
carefully came to the conclusion that the evidence should be rejected en bloc.
130 F-H;.
(d) Therefore, a part of the evidence of P.Ws
3 and 4 could be used or' availed of by the prosecution in support of its case.
But, they contradicted substantially their previous statements, and as, a
result of the crossexamination, their credit, if not wholly was substantially,
shaken. Therefore, as a matter of prudence, on the facts of the present case,
it would be hazardous to allow the prosecution to use stray sentences from
their evidence as corroboration to support the evidence of the trap witnesses.
[31 A-B].
(8) The High Court was also not competent to
use the statements of these witnesses recorded by the police during
investigation for seeking assurance of the prosecution story. Such use of the
police statement is not permissible under the proviso to s. 162, Cr. P. C. They
can be used only for the purpose of contradicting a prosecution witness in the
manner indicated in s. 145 Evidence Act, and for no other purpose. [31 C-D].
(9) Further, there was the evidence of
defence witnesses which was not successfully impeached by the prosecution in
cross-examination. The High Court had not discussed their evidence at all. If
that evidence were to be believed the possibility of the tainted notes having
been implanted by P.W. 7 from where they were recovered, could not be ruled
out. [31 E-G] Baikuntha Nath v. Prasannamoyi, AIR 1922, P.C 409;
Prophulloa Kumar Sarkar v. Emperor ILR 58
Cal. 1404; Shobraj v. R. ILR 9 Patna 474; E. Jehangir Carna 1927 Bom. 501;
Ammathayar v. Official Assignee 56 Mad. 7.
Mebti v. R. 19 Pat. 369 Shahdev v. Bipti AIR 1969 Pat. 415; IL.R [1954] 4 Raj.
822(DB). Shyam Kumar v. E. (1941) Oudh 130; AIR 1955 NUC (Punj) 5715. AIR 1964
M.P. 30. In re Kulu Singh; Rana v. State AIR 1965 oriss 31; AIR 1960 Mys. 248;
(1951) Ker. L.T. 471; AIR l953 J & K 41(DB); Narayon Nathu Naik v. Maharashtra
State. [1971] 1 SCR 133 referred to. G Observations contra in Luchiram Motilal
v. Radhe Charan, (1921) 24 C.L.J. lO7. E. V. Satyendra Kumar Dutt, AIR 1923
Cal, 463; Surendra v. Ranee Dassi 47 Cal. l043;
Khijiruddin v. E. AIR 1926 Cal. 139 and
Panchanan v. R. 57 Cal. 1266, over-ruled.
CRIMINAL APPELLATE JURIDICTION: Criminal
Appeal No. 1 37 of 1971.
Appeal by Special Leave from the Judgment and
order dated the 9th` March 1971 of the Delhi High Court-at New Delhi in
Criminal Appeal No. 151 of 1970.
14 Frank Anthony) o. P. Soni and E. C.
Agarwala for the Appellants.
V. C. Mahajan and R. N. Sachthey for
Respondent.
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by special leave is directed against a judgment of the
High Court of Delhi upholding the conviction and sentence of the appellant
under s. S(2) read with s. 5(1) (d) of the Prevention of Corruption Act and s.
161 Penal Code. The facts are these:
On 16-1-1970, Ramesh-@ Kaka (PW l).Mst. Maya
(PW2) and Jayna (PW 8) went to the Railway Station to receive one Mst.
Mum taz, who was expected from Bombay by 1.45
p.m. train.
Finding them loitering there, a constable of
the Railway police took them to the appellant at the Railway Police Post where
he was posted as an Assistant Sub-Inspector. The appellant gave a beating to
Ramesh and demanded an explanation as to why they had come to the Rail way
Station.
Ramesh said that they had come to receive one
Mst. Mumtaz, who was expected from Bombay by train at about 1.45 P.M. The
appellant questioned if Mumtaz was being brought to Delhi for prostitution.
Ramesh and his companions refuted the insinuation and informed the appellant
that Mumtaz was a dancing girl and not a prostitute. The appellant then
demanded a bribe of Rs. 100 from Ramesh and party, warning that in the event of
non-payment, they would be Implicated in some case. Ramesh paid Rs. 30 there
and then to the appeIlant. The latter insisted that they would not be released
unless they paid the balance of Rs. 70/- on the suggestion of the women, the
appellant detained Ramesh but let of the women with the direction to send the
balance of Rs. 70/-. Mst. Maya and Mst. Jayna returned to their residence on
G.B. Road and informed Dal Chand (PW 7) all about the incident. Mst. Maya then
hand ed over Rs. 70/- to Dal Chand for securing the release of Ramesh. Dal
Chand instead, went to the office of the Anti-Corruption Police where Inspector
Paras Nath recorded his statement, Ex PW 3/A. The Inspector organised a raiding
party. He summoned Surinder Nath (PW 3) and Sohan Pal Singh (PW 4), two clerks
from the Sales-tax office. The recorded statement of Dal Chand was then read
out to Dal Chand" and was admitted to be correct by him in the presence
and hearing of the Panch witnesses. Dal Chand then produced seven currency
notes of the denomination of Rs, 10/- each. The Inspector treated those notes
with phenol-phythelene powder. He demonstrated to the witnesses how the fingers
of a person touching a note treated with such powder would turn violet when
dipped in a solution of sodium carbonate. The treated notes were then returned
to Dal Chand with the direction that he should hand over the same to the
appellant on demand. The Panch witnesses were instructed to keep close to Dal Chand
to witness the passing of the tainted notes. The raiding party headed by
Inspector Paras Nath, including Dal Chand and the panch witnesses then reached
New . Delhi Railway Station at about 5.25 p.m. Dal Chand and Sohan Pal Singh
were directed to go ahead while the rest of the party took up positions nearby.
Dal Chand and his companions found the appellant talking to some per- 15 son
just outside the Police Post. After a couple of minutes when the A appellant
was free from that talk, and was alone, Dal Chand approached him and said that
he was the brother of Ramesh (PW 1) and had been sent by the women to pay him
Rs.
70/- for getting Ramesh released. The
appellant first demanded Rs. l00/- but later received Rs. 70/- from Dal Chand
and put the currency notes in the left side pocket of his pants which he was
then wearing. The appellant than told Dal Chand to go away, and assured the
latter that Ramesh would be releated. The appellant then went into his room in
the Police Post. Inspector Paras Nath and party followed the appellant into the
room. Inside they found him sitting on a cot and Ramesh PW squatting on the
floor. The Inspector disclosed his identity and accused the appellant of having
received a bribe. The appellant kept mum. The Inspector then recovered the
currency notes Ex. Pl to P7, from the pocket of the pants which the appellant
was then wearing. He compared the numbers of the notes with those noted in the
memorandum PW 3/P. They tallied. Pointing towards Ramesh, the Inspector asked
the appellant as to who he was. The appellant replied that he (Ramesh) had been
found loitering outside in suspicious circumstances and was brought for
interrogation. The left hand fingers of the appellant were then dipped in a
solution of sodium carbonate which turned pink. After preparing the seizure
memo and the raid report (PW 9/A), the Inspector sent the same to the police
Station for registration of the formal First Information Report.
After completing the investigation and
securing the necessary sanction for prosecution of the appellant, he laid a
charge-sheet against him in the court of the Special Judge, Delhi.
Examined under s 342, Cr.P.C., the appellant
denied the prosecution case, and gave this version of the occurrence.
"I left the Police Post at 4.15 p.m. in
uniform for patrol duty at the New Delhi Railway Station platforms because
there is a heavy rush of trains at that time. I was sent for by the Incharge
Police Post through Dev Raj Constable. I came to the Police Post through an
entrance towards the plat form. At that time Incharge, Police Post was busy in
a con versation on telephone. I was carrying a baton in my hand. I entered my
room and placed the baton on the table. My room is hardly 8'x4 1/2. Just at
that time Inspector Paras Nath came there and secured me near the door of my
room. On a Pew occasions I did not oblige Inspector Paras Nath for getting
seats reserved at the Railway Station for his friends and relatives. He had
strained relations withme. I knew Dal Chand and Ramesh, They are pimps.
They often used to come to the Railway
Station to solicit customers who were visitors to Delhi. On a number of
occasions I saw them ac companied by prostitutes of G.B. Road. I reprimanded
them several times not to frequent the Railway platforms in that manner. They
were out to harm me. The recovered pants was hanging on a peg in my room and it
was removed from there by the Inspector. I was wearing my uniform. No 16
proceedings of the type mentioned above took place in my room. l got confused
on seeing the Anti-Corruption Staff. I was afraid that they might create
trouble for my bail and there fore I did not resist or protest. I have served
in the Police Department for the last 19 years and there is not a single ad
verse entry" major or minor in my service book. I am innocent." In
defence, the appellant examined five witnesses-all members of the Police force.
Head Constable Jabar Singh (DW 1 ) testified
on the basis of the service record, that there was not a single adverse entry
in the Character Roll of the appellant, and that no less than 60 commendation
certificates, some of them accompanied by cash rewards, were awarded to. him
since his joining the Police force on 7-6-1951. Constable Sardar Singh DW2,
proved with reference to the official records brought by him that Ramesh (PW 1)
was convicted and fined on 14-1- 1966 by a Delhi Magistrate under s. 12 of the
Gambling Act.
Constable Dev Raj, DW 3 of the Railway Police
Post was examined to show that at the time of occurrence, the appellant was in
police uniform and was not wearing the civilian clothes, including the pants
from which the tainted currency notes are alleged to have been recovered. He
testified that on 16-1-1970 at about 4.45 p.m., the In-charge Police Post
directed the witness to convey a message to the appellant that he was wanted on
the telephone to receive a call from his sister from Kirti Nagar. Accordingly,
the witness went and conveyed the message to the appellant who was then in
uniform, patrolling the Railway platform.
Constable Muharrar Sujan Singh, DW 4,
produced the Daily Diary of the Police Post, containing entry No. 40, showing
that on 16-1-1970, the appellant had departed from the Police Post for patrol
duty at 4.15 P.M. He. stated that there was a Standing order according to which
all Police;
Officers going on patrol were peremptorily
required to go in uniform.
Om Prakash Sahni, DW 5, is an important
witness examined by the defence. He is a Sub-Inspector who at the relevant
time, was the charge of the Police Post of New Delhi Railway Station. His room
in the Police Post is on one side of the verandah and that of the accused on
the other side at a distance of hardly six feet. The dimensions of the room of
the accused are 7'x6' and it has only one door which opens into the verandah. DW
5 completely discounted the prosecution version. According to him, on
16-1-1970, he was throughout present in his room from 1.30 P.M. to 5.55 P.M.
During this period he did not see any
stranger, or suspect in the room of the accused. The witness swore that between
5.30 P.M. and 6 P.M., the accused was on patrol duty. He further stated that at
about 5.45 P.M. a telephone call was received from the sister of the accused
from Kirti Nagar, whereupon he sent Constable Dev Raj to inform the accused
about it. In response to the message sent by the witness, Sat Pal accused in
Police uniform came from the side of the Railway platform to the Post. At that
time" the witness was attending to another telephone message,
consequently, the accused went into his room. The witness then left for patrol
duty, after telling the accused about the telephone message.
17 The prosecution evidence which is the
mainstay of the conviction of the appellant may be catalogued under these
captions:
A. Direct Evidence (i) Demand of the bribe:
Evidence in regard to this fact was given by Ramesh, PW 1, Mst.
Maya, PW 2, and Mst Jayna PW 8.
(ii) Passing of tainted currency notes, P1 to
P7 to the accused Evidence with regard to this fact was given by Dal Chand (PW
7) and Inspector Paras Nath, PW 9.
(iii)Recovery of the tainted notes from the
person of the accused. Dal Chand PW 7 and Inspector Paras Nath PW 9 are the
only witnesses who have deposed to this fact For proof of this fact, support
has also been sought from the evidence of the hostile witnesses, PW 3 & 4.
B. Circumstantial Evidence (i) The
circumstance that Ramesh was found detained by the appellant.
(ii) on being accused by the Inspector, that
he had obtained a bride, the appellant kept mum and did not protest or refute
the accusation.
It may be noted at the outset, that Surinder
Nath, PW 3 and Sohan Pal Singh PW 4, who were supposed to be independent Panch
witnesses of the trap, turned hostile to the prosecution and were thoroughly
cross-examined by the Public Prosecutor with the leave of the court to impeach
their credit. In cross-examination, Surinder Nath, however, said that when the
Inspector accused the appellant of receiving a bribe, the latter kept mum. He
further supported the prosecution to the extent, that when the fingers and the
pant pocket of the accuscd were dipped in a solution of sodium carbonate, they
turned pink. Excepting with regard to the reticence of the accused on the query
made by the Inspector, Sohan Pal Singh, who was supposed to have kept close
company with Dal Chand, did not support the prosecution at all.
The learned trial Judge found that "the
complainant and party are "men of shady and questionable character"
but according to him, that was no ground to discard their testimony. Referring
to certain observations of Dua J. in Ram Sarup Singh v. The State,(,l) he held
that persons with such shady characteristics fall easy victims to the illegal
exploits of unscrupulous and dishonest officers. The Judge was further of the
opinion that the testimony of the Panch witness Surindernath (PW3) also cannot
be discarded straightaway on account of his having been cross-examined by the
prosecution". He rejected the defence version propounded by DWs 3 and 5
and concluded that the evidence given by the PWs including Dal Chand, and
Inspector Paras Nath, coupled with the compelling circumstantial evidence was
(1) (1967) Cr. L. J. 744.
18 sufficient to establish the passing of the
tainted notes to the accused and the subsequent recovery of the same from him.
Calling in aid the presumption under sec. 4 of the Prevention of Corruption
Act, he convicted the appellant under sec. 5(2) read with sec. S(l)(d) of the
Act and under s. 161, Penal Code.
In appeal, the High Court affirmed the
findings of the trial Court. In seeking support for the prosecution case from
the evidence of the hostile witnesses, it went far ahead of the trial court.
The High Court sought assurance from the statements of PW 3 and 4 thus:
"After a detailed reference to the
evidence adduced in this case-it becomes clear that P.Ws 3 and 4 in their
statements under s. 161(3) duly proved in terms of the proviso to section 162
of the Code of Criminal Procedure, did support the version which was given at
the trial by PWs. 1, 7 and 9. If it were open to an accused person to utilise
the aforementioned proviso to urge that the contradictions point in a
particular direction then it is equally open to the prosecution to urge that
the contradictions establish on the record that the statement made earlier to
which the statement made in court was contrary, was the one which was the
correct statement." Perhaps realising that in making use of the police
statement it was going too far, the High Court then switched over to the
alternative argument:
"It is not only on the basis of the
statements falling within the purview of the proviso to section 162 that I am
coming to the conclusion that the prosecution has succeed ed in proving its
case. Even otherwise I am satisfied that Ramesh was kept in custoday by the
appellant whose hands, when dipped in the sodium carbonate solution turned
pink. The same was the result when the pocket of Pant Exhibit P; 11 was dipped
in the sodium carbonate 'solution." Conceding that the testimony of the
trap witnesses was interested testimony, the High Court held that it was not
correct to say that their evidence cannot, as a matter of law, be accepted
without corroboration. On this point, it referred to this Court's decision in
Dalpat Singh v. State of Rajasthan.(1) Even so, according to the High Court the
interested testimony of PWs 7 and 9 "received full corroboration from PW
1". The High Court summarily brushed aside the defence version without
adverting to the defence evidence at all.
Mr. Frank Anthony, the learned Counsel for
the appellant con tended (a) that the courts below erred in law in using the
reticence of the appellant as evidence against him. This silence amounted to a
statement made to the police in the course of investigation, and as such it was
inadmissible, being hit by s. 162, Cr. P.C. (Reference (I) A. I. R. 1969 SC.
17.
19 has been made to Narasimham v. State(ll).
In any case, this A reticent conduct of the appellant was not indicative of his
guilt; (b) that the courts below have erred in using a part of the testimony of
the hostile witnesses in support of the prosecution case. 'They had been fully
cross-examined by the prosecution to impeach their credit, and indeed their
evidence stood thoroughly discredited (For this proposition reliance has been
placed on a recent decision of this Court in Jagir Singh v. The State (2); `(C)
that the High Court has erred in using the police statements of P.Ws. 3 and 4
for seeking assurance and corroboration of the prosecution story. Such user is
not permissible under the proviso to Sec. 162, Cr. P.C. (d) (i) that it was
clear from the record that P.Ws. 1, 2, 7 and 8 are persons of low moral
character and were haunting the Railway Station in connection with their
immoral trade, that the appellant was a stumbling block in the way of their
immoral pursuits, and consequently these PWs had a motive to falsely implicate
the appellant.
(ii) PW 9, who was an Inspector of
Anti-Corruption Police was also a highly interested witness. His overzeal can
be gauged from the fact that he investigated this offence under s. 161, Penal
Code, although he was not duly empowered to do so. (iii) The evidence of these
interested witnesses is replete with material discrepancies, and, as a rule of
prudence, could not, in the absence of corroboration from independent sources,
be accepted particularly when it stood sharply contradicted by the
qualitatively better testimony of DWs 3 and S. (Reliance has been placed on R.
P. Arora v.
State of Punjab (3)" (e) That the trial
Court erred in law in invoking the presumption under s. 4 of the Prevention of
Corruption Act for convicting the appellant for an offence under s. 4(23 read
with s. 4(1)(d) of the Act. In support of this argument, reference has been
made to Sita Ram v. The State of Rajastkan.(4).
As against the above, Mr. V. Mahajan"
the learned Counsel for the Respondent, submits that the evidence of the
interested witnesses has been accepted by the courts below, and consequently
this Court, should not in keeping with its practice, disturb these concurrent
findings of fact. It is maintainted that there is no rule of law, that the
evidence of an interested witness cannot be acted upon without corroboration,
that, in any case, the evidence of, PWs 1, 7 and 9 was sufficiently
corroborated by the circumstantial evidence consisting of the conduct of the
accused in keeping mum to the accusation made by the Inspector and by the
factum of. Ramesh's detention by the appellant. The said conduct of the
appellant, proceeds the argument, was relevant under sec. 8, Evidence Act and
was a detention pointer towards his guilt. Counsel has not tried to support the
use of the police statements of PWs 3 and 4 made by the High Court. His point
is that even without such support, the evidence on record was sufficient to
bring home the charges to the appellant. Counsel has further invited our
attention to the copy of the judgment of the Delhi High Court in Criminal
Revision No. 505 of 1968 (Raj Kumar v. Staie) delivered on the 7th April 1970
(produced by the appellant's (1) A. I. R. 1969 A. P. 271. (2) A. I. R 197s S.
C. 1400.
(3) A. I. R. 1973 s. C.r498. (4) A. I. R.
1975 S. C. 1324 20 side in this Court) wherein it is recited that all
Inspectors of Police in the Anti-Corruption Branch of the Delhi Administration
have been authorised by an order dated March 21, 1968 passed under sec. 5A(l)
of the Prevention of Corruption Act, by the Administrator of the Union
Territory of Delhi to investigate offences under sec. 5(1)(d) of this Act.
According to Counsel the mere fact that the authority given to Inspector Paras
Nath did not extend to investigation of offences under sec. 161, Penal Code,
would not vitiate either the validity of the trial or the probative value of
his evidence.
It is true that ordinarily, as a matter of
practice, this Court does not review the evidence and disturb concurrent
findings of fact unless those findings are clearly unreasonable or are vitiated
by an illegality or material irregularity of procedure or otherwise contrary to
the fundamental principles of natural justice and fair-play.
The instant case is one which falls within
the exception to this rule. As shall be presently discussed, the courts below
have adopted a basically wrong approach. They have not only used the statement
of certain witnesses in a manner which is manifestly improper or impermissible
under the law, but have also erred in accepting the testimony of interested
witnesses without due caution and corroboration, requisite in the peculiar
circumstances of the case. It is therefore, necessary to have another look at the
evidence and the salient features of the case.
We will begin with the evidence of the trap
witnesses.
They are Ramesh PW 1, Dal Chand PW 7 and
Inspector Parasnath, PW 9. It cannot be gainsaid that all the three were
concerned with the success of the trap and as such, were interested witnesses.
What the courts below appear to have failed to note is that qualitatively, the
evidence of these witnesses particularly PWs 1 and 7 was far inferrior to the
testimony of an ordinary interested witnesse. While the trial court was unduly
indulgent and modest in allowing these witnesses to pass under the euphemistic
title of "questionable and shady ' characters, the High Court overlooked
their antecedents altogether.
Evasive denials of Ramesh and company not
with standing, sufficient material has been brought on the record from which it
is clearly discernible that PWs Ramesh and Dal Chand are pimps and they were
haunting at the Railway Station to solicit customers for Mst. Maya and Mst.
Jayna.
The facts which have been elicited from
Ramesh and company in cross-examination are these:ts There is an accommodation,
com prising of one hall, and side-rooms on G.B. Road which is known as the
Kotha (brothel) of Mst.
Maya, Mst. Jayna, Mst. Maya and one Mst.
Lachmi have been living together in these premises for the previous 8 or 9
years The rent of these premises for all the occupants is being paid by Mst.
Maya. Mst. Lachmi is the mistress of Ramesh and the latter lives on her
professional income. Mst. Maya is the keep of Dal Chand who maintains her
servant.
Mst. Jayna, also. Ramesh also claims to be a
servant of Mst. Maya. He also lives in the Kotha (vide Dal Chand PW 7) . Dal
Chand claimed that he was living 21 separately at Pahar Ganj. But he admitted
that he has been frequently visiting the Kotha of Maya and on the day of
occurrence also he was there when, according to the witness, Mst. Maya came and
informed him about the demand of the bribe by the appellant. Dal Chand stated
that Ramesh was only a brother by courtesy. He admitted that Ramesh, Maya and
Jayna were arrived by the Police under the Suppression of Immoral Traffic Act,
and the charge against him and Ramesh was that they were pimps and their women
companions were carrying on the profession of prostitution. He further admitted
that in 1969, Mst. Maya was convicted under the said Act by a Delhi Magistrate.
Ramesh and Maya both were being jointly prosecuted. (on the date of their
examination) for an offence under the said Act. It is further admitted (vide
Ramesh) that one Mst. Mumtaz, a dancing girl of Bombay, is the friend and she
frequently comes and stays in the kotha of Mst. Maya. Ramesh was convicted for
an offence under the Gambling Act also.
Viewed against this background, the
suggestion made by the defence in cross-examination to these witnesses, that
they were loitering at the Railway Station to procure customers for their
immoral business could not be said to be devoid of substance. The purpose of
their visit to the Railway Station at that busy hour, according to them was to
see Mst. Mumtaz who was then expected to arrive from Bombay by train. This
Mumtaz was not produced by the prosecution, though she was repeatedly summoned.
In the circumstances, the defence version, that these persons were roaming
there to hawk their "wares" does not fall beyond the orbit of
reasonable probability. The above circumstances further lend assurance to the
appellant's plea that he had on several occasions, previously, reprimanded
these witnesses for visiting the Railway Station for immoral trade. Even,
according to the prosecution, the appellant had rounded up Ramesh and party on
the accusation that they were soliciting, customers for their immoral business.
Dal Chand state(1) that on being questioned by Inspector Parasnath, the
appellant explained that since Ramesh was found loitering at the Railway
Station in suspicious circumstances, he had been brought for interrogation.
This explanation receives confirmation of Ramesh who stated that the accused
had questioned him about the purpose of their visit to the Railway Station, and
when the witness told him that they had come to receive Mumtaz, the accused,
not being satisfied, asked whether she was also being brought for prostitution.
The appellant had also threatened to prosecute and put them behind the bars.
The courts below have believed the word of
these pimps and women of easy virtue that the appellant did all this to extort
a bribe. The trial court- with reference to certain observations of Dua J. in
Ram Sarups case, (ibid) treated the "shady and questionable
characteristic" of these witness as a point in favour of the prosecution.
lt argued that persons with such antecedents can be easily exploited by corrupt
police officers for extorting bribes. Thus. in a way, what was a stigma, was
considered a badge of honour. We are, with respect, unable to appreciate this
reasoning. The observations in Ram Swarup's case, were not intended to lay down
a rule of universal 22 application. Indeed for weighing evidence there can be
no specific canon. No generalisation is possible in such matters. each case has
its own features and each witness his own peculiarities. Here was a police
officer with an unblemished record, rather an outstanding record of 19 years'
service. Such an officer would be least disposed to countenance pimping within
his territorial jurisdiction. He must therefore have been an eye-sore to them.
It could not therefore be said that these witnesses had no motive whatever to
falsely implicate the appellant.
Thus the conduct of the appellant in
restraining Ramesh for interrogation could be the innocent act of an honest and
duty-conscious Police officer.
Then the evidence of these witnesses was
replete with discrepancies, contradictions and improbable versions. PW 1 stated
that they were all taken by a Constable to a room and there the appellant gave
him a beating. This was in sharp conflict with the version of Mst. Jayna, that
it was PW 1 alone who was first rounded up by the Cons table. Again, PW 1 would
have it believed that he had Rs. 30/- in all with him which he gave to the
appellant. This was sharply contradicted by Mst Jayna, according to whom, it
was Mst.
Maya and not PW 1-who had given this money to
the appellant.
In the context, it may be noted that apart
from Rs. 70/- in tainted notes, the further sum of Rs. 30/- was not recovered
from the appellant or from anywhere in the Police Post. The story of the
advance payment of Rs. 30/- therefore does not inspire confidence. Further the
conduct of the appellant in not releasing Ramesh forthwith even after the
alleged receipt of Rs. 70/- as gratification, was not the natural conduct of a
person whose demand for a bribe had been satisfied. Dal Chand has said that the
appellant did not, on receiving the amount allow Ramesh to go away, but said
that Dal Chand could go, and that Ramesh would be sent later on.
Ordinarily such discrepancies and small
improbabilities in the evidence of witnesses are not of much consequence.
But when the witnesses are manifestly
disreputable persons, their testimony before it can be acted upon, must pass
the test of severe scrutiny and in the process and in the context of the case
even minor informities may assume importance.
It is true that there is no absolute rule
that the evidence of an interested witness cannot be accepted without
corroboration. But where the witnesses have poor moral fibre and have to their
discredit a heavy load of bad antecedents, such as those of PWs 1, 2, 7 and 8,
having a possible motive to harm the appellant, who was an obstacle in the way
of their immoral activities it would be hazardous to accept their testimony, in
the absence of corroboration on crucial points from independent sources. If any
authority is needed reference may be made to R. P. Arora v. State of Punjab(1),
wherein this (1) A. I. R. 1973 S. C. 498.
23 Court ruled that in a proper case, the
Court should look for independent corroboration before convicting the accused
person on the evidence of trap witnesses.
Well then, was such corroboration of the
testimony of the interested witnesses forthcoming in the present case ? In this
connection, Mr. Mahajan referred to two circumstances: (1) the detention of
Ramesh and (ii) the conduct of the appellant in keeping mum to the charge that
he had received a bribe. Both these circumstances were not of a determinative
tendency. Both were compatible with the innocence of the appellant. We have
already discussed the first and found that instead of advancing the case for
the prosecution it lends; assurance to the explanation of the appellant that
Ramesh had been brought for interrogation as he was roaming there in suspicious
circumstances.
As regards the reticence of the appellant on
the query made by the Inspector, we do not think it necessary to burden this
judgment with a discussion of the question whether this conduct amounts to a
statement made to a Police officer in the course of investigation and as such,
hit b sec. 162 of the Code of Criminal Procedure. Suffice it to say that even
on the assumption that it was admissible as conduct-and not as a
statement-under Sec. 8, Evidence Act, its probative value in the circumstances
of this case would be almost nil. The appellant explained that he did not
protest and resist out of fear, that the Inspector might make matters worse for
him, even for getting bail. It would not be unusual even for an innocent
officer to be frightened out of wits on being suddenly accused of bribe-taking
by a superior officer.
Thus these two circumstances do not lend any
assurance TO the testimony of the trap witnesses. Nor could such assurance be
sought from the evidence rendered by Inspector Parasnath. True, that it has not
been shown that he had any hostile animus against the appellant, though such an
allegation was made. Nor has it been shown that he had long acquaintance or
friendship with Dal Chand and party. But we cannot lose sight of the stark fact
that he was an Inspector of the Anti-Corruption Staff of Police. He was the
architect of the trap and the head of the raiding party. Although the power
conferred on him under the order-dated March 21, 1968 by the Administrator of
the Union Territory of Delhi, did not extend to the investigation of an offence
under s. 161, Penal Code, yet, with zeal outrunning discretion, he went ahead
with the execution of the trap and the investigation.
Being deeply concerned with the success of
the case, he was also an interested witness. Not being an independent witness,
his evidence could not furnish the kind of corroboration requisite in the
circumstances of the case This takes us to the evidence of the independent
witnesses, PW 3 and 4. Both have not, in the main, supported the prosecution.
With the leave or the court, the Public Prosecutor cross-examined and
confronted them with their contradictory statements which they had made to
Inspector Parasnath during investigation the question is, 3-L1276SCI/75 24
could the court validly pick out tiny bits from their evidence and use the same
to support the prosecution case ? Relying on Jagir Singh v. State, (ibid) Mr. Anthony
submits that when a prosecution witness, being hostile, is cross-examined by
the Public Prosecutor with the leave of the Court, his entire evidence is to be
discarded as a matter of law.
Since this vexing question frequently arises,
and the observations made by this Court in Jagir Singh's case (ibid) do not
appeal;- to have been properly understood, it will be appropriate to clarify
the law on the point.
The terms "hostile witness",
'adverse witness", "unfavourable witness" "unwilling
witness" are all terms of English law. At Common Law, if a witness
exhibited manifest antipathy, by his demeanour, answers and attitude, to the
cause of the party calling him, the party was not as a general rule, permitted
to contradict him with his previous inconsistent statements, nor allowed to
impeach his credit by general evidence of bad character. This rule had its
foundation on the theory that by calling the witness, a party represents him to
the Court as worthy of credit, and if he afterwards attacks his general character
for veracity, this is not only mala fides towards the Court, but, it
"would enable the party to destroy the witness if he spoke against him,
and to make him a good witness if he spoke for him with the means in his hand
of destroying his credit if he spoke against him" (see Best on
Evidence" p. 630, 11th Edn.). This theory or assumption gave rise to a
considerable conflict of opinion as to whether it was competent for a party to
show that his own witness had made statements out of Court inconsistent with
the evidence given by him in court. The weight of the ancient authority was in
the negative.
In support of the dominant view it was urged
that a allow party directly to discredit or contradict his own witness would
tend to multi ply issues and enable the party to get the naked statement of a
witness before the jury, operating in fact as substantive evidence, that this
course would open the door wide open for collusion and dishonest contrivance.
As against this, the exponents of the rival
views that a party should be permitted to discredit or contradict his own
witness who turns unfavourable to him, argued that this course in necessary as
a security against the contrivance of an artful witness, who otherwise might
recommend himself to a party by the promise of favourable evidence and
afterwards by hostile evidence ruin his cause. lt was reasoned further
"that this is a question in which not only the interests of litigating
parties are involved, but also the more important general interests of truth, in
criminal as well as in civil proceedings, that the ends of justice are best
attained by allowing a free and ample scope for scrutinising evidence and
estimating its real value and that in the administration of criminal justice
more especially the conclusion of the proof of contrary statements might be
attended with "the worst consequences". Besides it by no means
follows That the 25 object of a party in contradicting his own witness is to
impeach his A veracity, it may be to show the faultiness of his memory"
(see Best, page 631, 11th Edn.).
The rigidity of the rule prohibiting a party
to discredit or contradict its own witness was to an extent relaxed by evolving
the terms hostile witness" and "unfavourable witness" and by
attempting to draw a distinction between the two categories. A "hostile
witness" is described as one who is not desirous of telling the truth at
the instance of the party calling him, and an 'unfavourable witness' is one
called by a party to prove a particular fact in issue or relevant to the issue
fails to prove such fact, or proves an opposite fact (see Cross on Evidence, p.
220, 4th Edn. citing Stephen's Digest of the Law of Evidence) .
In the case of an 'unfavourable witness', the
party calling him as allowed to contradict him by producing evidence aliunde
but the prohibition against cross- examination by means of leading questions or
by contradicting him with his previous inconsistent statements or by asking
questions with regard to his discreditable past conduct or previous conviction,
continued. But in the case of a 'hostile witness the Judge could permit his
examination-in-chief to be conducted in the manner of cross- examination to the
extent to which he considered necessary in the interests of justice. With the
leave of the court, leading questions could be put to a hostile witness to test
his memory and perception or his knowledge of the facts to which he was
deposing. Even so the party calling him, could not question him about his bad
antecedents or previous convictions, nor could he produce evidence to show that
the veracity of the witness was doubtful. But the position as to whether a
previous inconsistent statement could be proved against a hostile witness,
remained as murky as ever.
To settle the law with regard to this matter,
s. 22 of the Common Law Procedure Act, 1854 was enacted. It was originally
applicable to civil proceedings, but was since re-enacted in s. 3 of the
Criminal Procedure Act, 1865 and extended in identical terms to proceedings in
criminal courts as well. P Section 3 provides:
"A party producing a witness shall not
be allowed to impeach his credit by general evidence of bad character, but he
may, in case the witness shall, in the opinion of the Judge, prove adverse,
contradict him by other evidence, or by leave of the judge, prove that he has
made at other times a statement inconsistent with his present testimony but
before such last- mentioned proof can be given the circumstances of the
supposed statement, sufficient to designate the particular occasion, must be
mentioned to the witness, and he must be asked whether or not he has made such
statement." The construction of these provisions however, continued to
cause difficulty, particularly in their application to 'unfavourable'
witnesses.
26 In Greenough v. Eicles(1), these
provisions were found so confusing, that Cockburn C. J. said that "there
has been a great blunder in the drawing of it, and on the part of those who
adopted it." To steer clear of the controversy over the meaning of the
terms "hostile" witness, "adverse" witness,
"unfavourable" witness which had given rise to considerable
difficulty and conflict of opinion in England, the authors of the Indian Evidence
Act, 1872 seem to have advisedly avoided the use of any of those terms so
that, in India, the grant of permission to cross-examine his own witness by a
party is not conditional on the witness being declared "adverse' or
"hostile". Whether it be the grant of permission under s. 142 to put
leading questions, or the leave under sec. 154 to ask questions which might be
put in cross-examination by the adverse party, the Indian Evidence Act
leaves the matter entirely to the discretion of the court (see the observations
of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi) (2). The discretion
conferred by s. 154 on the court is unqualified and untrammeled, and is apart
from any question of "hostility".
It is to be liberally exercised whenever the
court from the witness's demeanour, temper, attitude, bearing, or the tenor and
tendency of his answers, or from a perusal of his previous inconsistent
statements or otherwise, thinks that the grant of such permission is expedient
to extract the truth and to do justice. The grant of such permission does not
amount to an adjudication by the court as to the veracity of the witness.
Therefore, in the order granting such permission, it is preferable to avoid the
use of such expressions, such as "declared hostile", "declared
unfavourable", the significance of which is still not free from the
historical cobwebs which, in their wake bring a misleading legacy of confusion,
and conflict that had so long vexed the English Courts.
It is important to note that the English
statute differs materially from the law contained in the Indian evidence Act in
regard to cross examination and contradiction of his own witness by a party.
Under the English Law, a party is not permitted to impeach the credit of his
own witness by general evidence of his bad character, shady antecedents or
previous conviction. In India, this can be done with the consent of the court
under s. 155. Under the English Act of 1865, a party calling the witness can
"cross-examine' and contradict a witness in respect of his previous
inconsistent statements with the leave of the court, only when the court
considers the witness to be adverse'. As already noticed, no such condition has
been laid down in secs. 154 and 155 of the Indian Act and the grant of such
leave has been left completely to the discretion of the Court, the exercise of
which is not fettered by or dependent upon the "hostility" or
"adverseness" of the witness. In this respect, the Indian Evidence
Act is in advance of the English law. The Criminal Law Revision J Committee of
England in its 11th Report, made recently, has recommended the adoption of a
modernised version of sec. 3 of the Criminal Procedure Act, 18-65, allowing
contradiction of both unfavourable and hostile witnesses by other evidence without
leave of the court.
(1) (1859) 5 C. B. N. 786. (2) A. I. R. 1922
Privy Council 409.
27 The Report is, however, still in favour of
retention of the prohibition A on a party's impeaching his own witness by
evidence of bad character.
The danger of importing, without due
discernment, the principles enunciated in ancient English decisions, for
interpreting and supplying the Indian Evidence Act has been pointed out in
several authoritative pronouncements. In Prophulla Kumar Sarkar v. Emperor(1),
an eminent Chief Justice, Sir George Rankin cautioned, that "when we are
invited to hark back to dicta delivered by English Judges, however eminent, in
the first half of the nineteenth century, it is necessary to be careful lest
principles be introduced which the Indian Legislature did not see fit to
enact". It was emphasised that these departures from English law
"were taken either to be improvements in themselves or calculated to work
better under Indian conditions".
Unmindful of this substantial difference
between the English Law and the Indian Law, on the subject, the Calcutta High
Court in some of its earlier decisions, interpreted and applied sec. 154 with
reference to the meaning of the term "adverse" in the English Statute
as construed in some English decisions, and enunciated the proposition that
where a party calling a witness requests the court to declare him a
"hostile" and with the leave of the court cross-examines the witness,
the latter's evidence should be excluded altogether in criminal passes. This
view proceeds on the doctrine enunciated by Campbell C.J. in the English case,
Faulkner v. Brine(2), that the object of cross-examination of his own witness
by a party is to discredit the witness in toto and to get rid of his testimony
altogether. Some of these decisions in which this view was taken are: Luchiram
Motilal v. Radhe Charan(3); E. v. Satyendra Kumar Dutt(4);
Surendra v. Ranee Dassi,(5), Khijruddin v.
E.(6), and Panchanan v. R.(7).
The fallacy underlying this view stems from
the assumption that the only purpose of cross-examination of a witness is to
discredit him; it ignores the hard truth that another equally important object
of cross-examination is to elicit admissions of facts which would help build
the case of the cross-examiner. When a party With the leave of the court,
confronts his witness with his previous inconsistent statement, he does so in
the hope that the witness might revert to what he had stated previously. If the
departure from the prior statement is not deliberate but is due to faulty
memory or a like cause, there is every possibility of the witness veering round
to his former statement. Thus, showing faultiness of the memory in the case of
such a witness would be another object of cross-examining and contradicting him
by a party calling the witness. In short, the rule prohibiting a party to put
questions in the manner of cross-examination or in a (1) I. L. R. 58 Cal 1404.
(2) (1858) I. F. & F.
254.
(3) (1921) 34, C. I. J. 107. (4) A. I. R.
1923 Cal.
463.
(5) 47 Cal. 1043. (6) A. I. R. 1926 Cal. 139.
(7) 57 Cal. 1266.
28 leading form to his own witness is relaxed
not because the witness has already forfeited all right to credit but because
from his antipathetic attitude or otherwise, the court feels that for doing
justice, his evidence will be more fully given, the truth more effectively
extricated and his credit more adequately tested by questions put in a more
pointed, penetrating and searching way.
Protesting against the old view of the
Calcutta High Court, in Shobraj v. R. Terrel, C.J., pointed out that the main
purpose of cross-examination is to obtain admission, and it would be ridiculous
to assert that a party cross- examining a witness is therefore prevent ed from
relying on admission and to hold that the fact that the witness is being
cross-examined implies an admission by the cross examiner that all the
witness's statements are falsehood.
The matter can be viewed yet from another
angle.
Section 154 speaks of permitting a party to
put to his own witness "questions which might be put in
cross-examination".
lt is not necessarily tantamount to
"cross-examining the witnesses". "Cross-examination"
strictly speaking, means cross-examination by the adverse party as distinct
from the party calling the witness Sec. 137, Evidence Acts. That is why sec.
154 uses the phrase "put any questions to him which might be put in
cross-examination by the adverse party".
Therefore. neither the party calling him, nor
the adverse party is, in law, precluded from relying on any part of the
statement of such a witness.
The aforesaid decisions of the Calcutta High
Court were over ruled by a Full Bench in Praphulla Kumar Sarkar's case (supra).
After an exhaustive survey of case law, Rankin C.J.
who delivered the main judgment, neatly
summed up the law at pages 1428-1430 of the Report:
"In my opinion, the fact that a witness
is dealt with under section 154 of the Evidence Act, even when under that
section he is 'cross-examined' to credit, in no way warrants a direction to the
jury that they are bound in law to place no reliance on his evidence, or that
the party who called and cross-examined him can take no advantage from any part
of his evidence. There is moreover no rule of law that if a jury thinks that a
witness has been discredited on one point they may not give credit to him on
another. The rule of law is that it is for the jury to say.`' After answering
in the negative, the three questions viz., whether. the evidence of a witness
treated as 'hostile' must be rejected in whole or in part, whether it must be
rejected so far it is in favour of the party calling the witness, whether it
must be rejected so far it is in favour of the opposite party, the learned
Chief Justice proceeded:
(1) I.L.R.9 Patna 474 29 "....the whole
of the evidence so far it affects both parties favourably or unfavourably must
go to the jury for what it worth..
If the previous statement is. the deposition
before the committing Magistrate and if it is put in under section 288.
Criminal Procedure Code, so as to become evidence for all purposes, the jury
may in effect be directed to choose between the two statements because both
statements are evidence of the facts stated therein. But in other cases the jury
may not be so directed, because prima facie the previous statement of the
witness is not evidence at all against the accused of the truth of the facts
stated therein. The proper direction to the jury is that before relying on the
evidence given by the witness at the trial the jury should take into
consideration the fact that he made the previous statement, hut they must not
treat the previous statement as being any evidence at all against the prisoner
of the facts therein alleged In a criminal case, however, the previous unsworn
statement of a witness for the prosecution is not evidence against the accused
of the truth of the facts stated therein save in very special circumstances
e.g., as corroboration under section 157 of his testimony. in the witness-box
on the conditions therein laid down. If the case be put of the previous
statement having been made in the presence and hearing of the accused, this
fact might under section 8 alter the position; but the true view even then is
not that the statement is evidence of the truth of what it contains. but that
if the jury think that the conduct, silence or answer of the prisoner at the
time amounted to an acceptance of the statement or some part of it, the jury
may consider that acceptance as an admission [The King v. Norton, Percy Wililam
Adams (1) & (2)], But apart from such special cases, which attract special
principles, the unsworn statement, so far as the maker in his evidence does not
confirm and repeat it, cannot be used at all against the accused as proof of
the truth of what it asserts." We are in respectful agreement with this
enunciation.
It is a correct exposition of the law on the
point.
(1) [1910] 2, K. B. 496. (2) (1923) 17, Crim.
App. Rep. 77.
30 The Bombay(1) Madras(2), Patna(3),
Rajasthan(4), Oudh(5), Punjab(6), Madhya Pradesh(7), Orissa(8), Mysore(9),
Kerala(10) and Jammu and Kashmir(11) Courts have also taken the same view.
In the case of an unfavourable witness, even
in England the better opinion is that where a party contradicts his own witness
on one part of his evidence he does not thereby throw over all the witness's
evidence, though Its value may be impaired in the eyes of the Court (Halsbury,
3rd Edn.
Vol. 15 Para 805).
In Bradley v. Ricardo(12), when it was urged
as an objection that this would be giving credit to the witness on one point
after he has been discredited on another, Tindal C.J. brushed it aside with the
observation that "difficulties of the same kind occur in every case where
a jury has to decide on conflicting testimony".
In Narayan Nathu Naik v. Maharashtra
State(13), the court actually used the evidence of the prosecution witnesses
who had partly resiled from their previous statements, to the extent they
supported the prosecution for corroborating the other witnesses.
From the above conspectus, it emerges clear
that even in a criminal prosecution when a witness is cross-examined and
contradicted with the leave of the court, by the party calling him, his
evidence cannot, as a matter of law, be treated as washed off the record
altogether. It is for the Judge of fact to consider in each case whether as a
result of such cross-examination and contradiction the witness stands
thoroughly discredited or can still be believed in regard to a part of his
testimony. If the Judge finds that in the process, the credit of the witness
has not been completely shaken, he may, after reading and considering the
evidence of the witness, as a whole, with due caution and care, accept, in the
light of the other evidence on the record that part of his testimony which he
finds to be credit worthy and act upon it. If in a given case, the whole of the
testimony of the witness is impugned, and in the process the witness stands
squarely and totally discredited, the Judge should, as a matter of prudence,
discard his evidence in toto.
It was in the context of such a case, where
as a result of the cross examination by the Public Prosecutor the prosecution
witness concerned stood discredited altogether, that this Court in Jagir Singh
v. Stale (Delhi Admn.) (supra), with the aforesaid rule of caution-which is not
to be treated as a rule of law in mind, said that the evidence of such a
witness is to be rejected en block.
(1) E. v. Jehangir Cama 1927 Bom. 501.
(2) Amnnathayar v. Official Assignee 56 Mad.
7.
(3) Nebti v. R. 19 Pat. 369; Shahdev v. Bipti
AIR 1969 Pat. 415.
(4) I.L. R. [1954] 4 Raj. 822 (D.B.) . (5)
Shyam Kumar v. E. (1941) Oudh 130.
(6) A. I. R. 1955 NUC (Punj) 5715; (7) AIR
1964 M. P.
In re Kulu Singh.
(8) Rana v. State A.I.R. 1965 Orissa 31.
(9) A. I. R. 1960 Mys. 248. (10) [1951] Ker.
L. T. 471.
(11) A. T. R. 1953 J & K 41 (D. B.) (12)
[1831] 8 Bing 57, 131 E. R. 321.
(13) [1971] 1 S.C.R. 133.
31 In the light of the above principles, it
will be seen that, in law, a part of the evidence of the Panch witnesses who
were thoroughly cross-examined and contradicted with their inconsistent police
statements by the Public Prosecutor, could be used or availed of by the
prosecution to support its case. But as a matter of prudence, on the facts of
the case, it would be hazardous to allow the prosecution to do so. These
witnesses contradicted substantially their previous statements and as a result
of the cross-examination, their credit was substantially, if not wholly,
shaken. The was therefore, not proper for the courts below to pick out a
sentence or two from their evidence and use the same to support the evidence of
the trap witnesses.
Nor was the High Court competent to use the
statements of these witnesses recorded by the police during investigation, for
seeking assurance for the prosecution story. Such use of the police statements
is not permissible.
Under the proviso to s. 162 Cr. P.C. such
statements can be used only for the purpose of contradicting a prosecution
witness in the manner indicated in s. 145, Evidence Act, and for no other
purpose. They cannot be used for the purpose of seeking corroboration or
assurance of the testimony of the witness in court.
Thus the evidence of these interested
witnesses of the trap remains unconfirmed and uncorroborated by any independent
evidence. In the peculiar circumstances of the case, we think that it would be
highly unsafe to convict the appellant on the basis of their testimony
particularly when P.Ws. 1, 7 and 8 are persons of bad antecedents and had a
possible motive to see the accused removed permanently from the way of their
immoral activity.
It is pertinent to mention here that the
evidence of defence witnesses particularly that of D.Ws. 3 and 5 was not
successfully impeached in cross-examination. The High Court has not touched
their evidence at all. If the defence evidence were to be believed at the
material time, the appellant was in police uniform patrolling the Railway
platform and he was not wearing the pants from the pocket of which the tainted
currency notes are alleged to have been recovered. According to the appellant
these pants were hanging on a peg in his room. Therefore the possibility of the
tainted notes having been implanted by Dal Chand who appears to us a person with
wit more and scruples less than the ordinary, cannot be ruled out.
For the foregoing reasons we would allow this
appeal, accord the benefit of doubt to the appellant and acquit him of the
charge levelled against him.
V.P.S. Appeal allowed.
Back
