Kishan Chand Mangal Vs. State of
Rajasthan  INSC 72 (14 October 1982)
SEN, A.P. (J)
CITATION: 1982 AIR 1511 1983 SCR (1) 569 1982
SCC (3) 466 1982 SCALE (2)879
CITATOR INFO :
D 1985 SC 79 (13)
Evidence-Of persons belonging to office-wise,
wealth- wise lower strata of society-Rejection on sole ground of humble
Evidence-Witnesses independent of police
influence- Employees of nationalised banks and institutions receiving grants
from government-Position of.
The appellant, a Factory Inspector, visited
the complainant's factory and demanded an illegal gratification of Rs. 150/- on
the threat of entangling him in some legal proceedings. The complainant, who
was not inclined to give the bribe, made a written complaint to the Deputy
Superintendent of Police, Anti-Corruption Department (Dy SP) requesting for
suitable action. A trap was arranged by smearing 15 currency notes of the
denomination of Rs. 10/- each with phenolphthalein powder and, on the direction
of the Dy SP, two motbirs were requested to accompany the raiding party and to
watch what happens. The motbirs went along with the complainant to the
residence of the appellant and witnessed the acceptance of the money given to
him by the complainant, the subsequent search for the recovery of the currency
notes from the appellant, the dipping of his hands in sodium carbonate solution
and the consequent change in the colour of the hands into pink.
By the time the case came up for trial, the
complainant was dead. In the absence of the evidence of the complainant, the
trial Judge noted that the first demand of the bribe at the factory of the
complainant had not been proved. He, however, held that the evidence of the two
motbirs was reliable and was amply corroborated by the recovery of the currency
notes as well as the presence of phenolphthalein powder on the hands of the
appellant. The trial Judge convicted and sentenced the appellant under s. 161,
and s. 5(1)(d) read with s. 5(2) of the
Prevention of Corruption Act, 1947.
The High Court which examined the evidence of
the motbirs agreed with the findings recorded by the trial Court and dismissed
the appeal filed by the appellant.
One of the contentions urged on behalf of the
appellant was that once the complainant was not available to give evidence not
only of the first demand but also on the payment of bribe pursuant to the
demand, the evidence of the two motbirs had assumed considerable importance and
it was unwise and dangerous to place implicit reliance on their testimony to
convict the appellant 570 as (i) both the motbirs were petty clerks and (ii) by
virtue of their service, they were likely to be under police influence.
Dismissing the appeal,
HELD: Truth is neither the monopoly nor the
preserve of the affluent or of highly placed persons. In a country where
renunciation is worshipped and the grandeur and wild display of wealth frowned
upon, it would be the travesty of truth if persons coming from humble origin
and belonging to office- wise, wealth-wise lower strata of society are to be
disbelieved or rejected as unworthy of belief solely on the ground of their
humble position in society. [577-F] Khairati Lal v. The State, (1965) 1 Delhi
Law Times, 362 overruled.
In the instant case it is factually not
correct to say that both the motbirs are petty clerks: one was serving as a
clerk in a nationalised bank and the other was a teacher in a middle school.
The testimony of the motbirs which had been accepted as wholly reliable by the
trial Judge and the High Court cannot be rejected on the sole ground that they
are petty clerks. [577-E: 578-A-B] It may be that officers of Anti-Corruption
Department have jurisdiction to investigate lapses on the part of clerks in
nationalised banks. It is not clear whether the motbir who was a teacher was a
government employee or the school itself was a government school. It may be
that the school was receiving grant but if all institutions which receive grant
from government are styled as government departments and have to be treated as
falling under the police influence then the net will have to be spread so wide
as not to exclude anyone as independent of police influence.
There is no justification in the submission
that the two motbirs were persons not likely to be independent of police
influence. [578-D-E] Raghbir Singh v. State of Punjab, AIR 1976 S.C. 91,
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 45 of 1980 From the Judgment and Order dated the 17th October, 1979
of the High Court of Rajasthan in S.B. Criminal Appeal No. 39 of 1977.
Frank Anthony and S.K. Jain, for the
Badri Dass Sharma for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. Appellant Kishan Chand Mangal was convicted by the learned Special
Judge (A.C.D. Cases), Jaipur, Rajasthan, for 571 having committed offences
under section 161, Indian Penal Code and section 5(1)(d) read with s. 5(2) of
the Prevention of Corruption Act, 1947, and was sentenced to suffer rigorous
imprisonment for one year and to pay a fine of Rs.
200/-, in default to suffer further rigorous
imprisonment for one month on each count with a further direction that both the
sentences will run concurrently. After an unsuccessful appeal to the High Court
of Rajasthan, he has preferred this appeal by special leave.
Appellant at the relevant time was serving as
Factory Inspector, Ajmer and in that capacity he accompanied by his friend paid
a visit on November 20, 1974, to the factory named 'Krishna Industries' whose
proprietor was one Rajendra Dutt. Appellant said that his visit being after a
lapse of one and a half year, the proprietor should pay him pocket money.
Rajendra Dutt replied that his establishment was not covered by the Factories
Act and showed disinclination to grease the palms of the appellant. However,
appellant persisted in his demand and told Rajendra Dutt if he did not pay Rs.
150/- he was likely to be entangled in some legal proceedings. So saying
appellant and his companion left.
Rajendra Dutt was not inclined to give the
bribe demanded from him and, therefore, on November 22, 1974, he contacted Dy.
S.P., A.C.D., Ajmer, P.W. 7, Mahavir Prasad and gave a written complaint Ext.
P-12 complaining about the demand of illegal gratification by the appellant
requesting for taking suitable action in the matter. He also produced 15
currency notes each of the denomination of Rs.10/-. P.W. 7 Dy. S.P. Mahavir
Prasad directed P.W. 3 Prahlad Narayan to bring two persons to witness the
search and accordingly P.W. 1 Ram Babu and P.W. 2 Keshar Mal were requested to
join the raiding party. 15 currency notes produced by the complainant were
smeared with phenolphthalein powder and a memorandum of the same was prepared.
The raiding party led by P.W. 7 Dy.
S.P. Mahavir Prasad and including the
complainant Rajendra Dutt, two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal,
P.W. 3 Prahlad Narayan, a clerk in the Office of the Anti Corruption
Department, started by a jeep driven by P.W. 6 Bajrang Singh to go to the
residence of the appellant.
Office and residence of the appellant are
situated in the same building. Complainant Rajendra Dutt and the two motbirs
Ram Babu and Keshar Mal proceeded ahead and entered into the room used as
residential portion of the building. Ram Babu and Keshar Mal stopped in the
verandah and the complainant Rajendra Dutt went inside. Appellant was seen
sitting on a cot. On inquiry by complainant Rajendra Dutt appellant replied
that he was not well 572 and that he was suffering from cold Appellant then
inquired whether complainant Rajendra Dutt had brought the money and the
complainant replied that he had brought the money and handed over marked
currency notes 15 in number each of the demonination of Rs. 10/- which the
appellant accepted and put the same under his pillow. Rajendra Dutt came out in
the verandah and as instructed, gave the agreed signal whereupon Dy. S.P.
Mahavir Prasad, the two motbirs and others entered the room. Mahavir Prasad
introduced himself as Dy. S.P. ACD, and asked the appellant whether he had
accepted Rs. 150/- as and by way of bribe from complainant Rajendra Dutt.
Appellant denied having accepted any bribe or
any money from Rajendra Dutt whereupon a search of his person was taken.
When the search of the person of the accused
was being taken motbirs Ram Babu and Keshar Mal pointed towards the pillow
indicating that the bribe taken by the appellant was kept underneath the
pillow. P.W. 6 Driver Bajrang Singh was asked to lift the currency notes and
the numbers were tallied with the memorandum prepared earlier. Hands of the
accused were dipped in the solution of sodium carbonate which turned pink.
After the memorandum was completed recording all these facts and after
completing investigation sanction was obtained and the appellant was prosecuted
for the aforementioned offences.
By the time the case came up for trial
complainant Rajendra Dutt was dead and his evidence was not available.
Prosecution examined the two motbirs Ram Babu
and Keshar Mal, Dy. SP, ACD Mahavir Prasad, Clerk Prahlad Narayan, Driver
Bajrang Singh and two others.
Statement of the accused was recorded under
s. 313 of the Code of Criminal Procedure and he offered himself as a witness in
his defence. In his evidence he stated that on the date of occurrence around
4.30 p.m. when he was sitting in his cot complainant Rajendra Dutt came and
took a seat in the chair placed nearby. Appellant enquired why he had come and
whether he had brought any written complaint against Clerk Mr. Singhal.
According to him, the complainant replied that action be taken against Singhal
by recording his statement whereupon the appellant said that if the complainant
has any grievance he should come with a written complaint. Appellant further
stated that thereafter he went to the bath room for spitting cough and he came
out and sat on the cot. Complainant Rajendra Dutt enquired whether he can drink
water from a jug which was lying there. Thereafter Rajendra Dutt went 573 out
of the room and soon thereafter 8 persons including Rajendra Dutt entered the
room. He stated that two of the members of the raiding party caught his hands
and when he tried to get himself released from the grip of those persons the
grip tightened. One of the members of the raiding party then told him that he
was Dy. SP, ACD, Ajmer and called upon him to produce Rs. 150/- he had taken
from Rajendra Dutt.
Appellant stated that he immediately told the
Dy. SP that he had not accepted any money from Rajendra Dutt whereupon the Dy.
SP came near him and put his hand in the pocket of the garment put on by the
appellant. Appellant objected to any search being taken and insisted on keeping
two respectable persons present. He further stated that Dy. SP quarrelled with
him and then he sent a telephone message to S.P, Ajmer that a Factory Inspector
has quarrelled with him and he should be provided with extra police help.
Thereafter his hands were dipped in a solution but the colour of the solution
did not change and remained white. Appellant then told the Dy. SP that Rajendra
Dutt had come to complain against one Singhal, a Clerk and in support of this
he produced Ext. D-2 marked collectively in respect of five letters. At this
stage the Dy. SP according to the appellant asked Rajendra Dutt why he had
given a false signal whereupon the complainant Rajendra Dutt informed the Dy SP
that the bribe money was lying under the pillow whereupon the Dy SP removed the
pillow and collected the currency notes. He further stated that he has been
involved in this false case at the instance of K.C. Sogani, Factory Manager of
Krishna Mills, Beawar. This was broadly the defence of the appellant as
collected from his evidence.
The learned special Judge noted the fact that
the complainant Rajendra Dutt was not available and, therefore, the first
demand at the Factory of Rajendra Dutt on November 20, 1974, has not been
proved. The learned Judge, however, held that the evidence of two motbirs Ram
Babu and Keshar Mal was reliable and was amply corroborated by the recovery of
currency notes as well as the presence of phenolphthalein powder on the hands
of the accused. The learned Judge rejected the defence version that the
currency notes were planted when the appellant had gone into the bath room. The
learned Judge accordingly convicted and sentenced the appellant as mentioned
The appellant having unsuccessfully appealed
to the Rajasthan High Court, has filed this appeal by special leave.
574 Mr. Frank Anthony, learned counsel for
the appellant contended that there are certain features of this case which
would convincingly show that the prosecution case cannot be accepted. He
enumerated the circumstances as: (i) absence of name of the appellant in the
F.I.R. Ext. P-12; (ii) absence of evidence of demand as on November 20, 1974;
(iii) absence of any prior arrangement where and when the complainant was to
meet the appellant and, therefore, the trap could not be successfully arranged
which might permit an inference that the whole story of acceptance of bribe
money is concocted;
(iv) further two motbirs P.W. 1 Ram Babu and
P.W. 2 Keshar Mal were petty clerks specially selected by P.W. 3 Prahlad
Narayan; (v) in their evidence they have tried to improve upon the prosecution
version which shows their unconcealed interest in the success of the trap which
would render them partisan witnesses; (vi) there are certain omissions in the
evidence of the prosecution witnesses which may indicate that the defence
version of planting the currency notes when the appellant had gone to bath room
is probabilised; (vii) that no inference be drawn from the fact that when hands
of the appellant were dipped in the sodium carbonate solution it turned pink
because admittedly when hands of the accused were caught by the members of the
raiding party one or the other of them may have transmitted phenolphthalein
powder to the hands of the appellant.
Complainant Rajendra Dutt on whose complaint
a trap was arranged was dead by the time the case came up for trial and his
evidence was not available to the prosecution. However, the complaint Ext. P-12
filed by him was admitted in evidence because P.W. 7 Mahavir Prasad, the Dy SP
who recorded the same gave evidence about the same. The averments in the
complaint even in the background of these facts would not provide substantive
evidence and the only use to which it can be put is that a complaint of this
nature was filed which tends to explain the subsequent actions taken by the Dy
SP. High Court has examined the evidence of two motbirs P.W. 1 Ram Babu and
P.W. 2 Keshar Mal, and also the evidence of P.W. 7 Mahavir Prasad and agreed
with the findings recorded by the trial court. We need not examine the evidence
afresh but limit our examination to specific contentions raised by Mr. Anthony.
The first contention is that the name of the
appellant Kishan Chand Mangal is not to be found in Ext. P-12. That is true,
but 575 what is stated in Ext. P-12 is that a Factory Inspector accompanied by
his friend visited the factory of the appellant and demanded a bribe. Now, the
appellant in his evidence as DW 1 has stated that complainant Rajendra Dutt did
come to his house on November 22, 1974, around 4.30 p.m.
Appellant further proceeds to say that
Rajendra Dutt had some grievance against a clerk Singhal and appellant insisted
upon giving a written complaint at the time of the visit of Rajendra Dutt. If
Rajendra Dutt as is now contended wanted to falsely implicate the accused there
is no reason why he would not mention the name of the appellant in Ext.
P-12. On the contrary the absence of the name
of the appellant in Ext. P-12 would indicate that probably the appellant had
visited the factory of Rajendra Dutt after a long time and that is what
transpires from Ext. P-12 that the visit of the appellant was after a year and
half. It is reasonable to infer that Rajendra Dutt did not know the name of the
appellant but knew him by the designation of his office as Factory Inspector.
Therefore, the absence of name of Kishan Chand Mangal in Ext. P-12 is hardly of
It was next contended that once Rajendra Dutt
is not available for evidence there is no evidence as to the demand of bribe on
November 20, 1974, and it is not open to the Court to spell out the demand from
the contents of Ext. P- 12. It is undoubtedly true that Rajendra Dutt was dead
before the commencement of trial. It is equally true that the F.I.R. lodged by
him on November 22, 1974, cannot be used as substantive evidence nor the
contents of the report can be said to furnish testimony against the appellant.
Such an F.I.R. would not be covered by any of the clauses of ss.
32 and 33 of the Evidence Act and would not
be admissible as substantive evidence. The question still remains whether there
is any evidence of demand of bribe on November 20, 1974, in this case. A fact
may be proved either by direct testimony or by circumstantial evidence If
appellant did not visit the Factory of Rajendra Dutt on November 20, 1974, and
made no overtures demanding the bribe, on what rational hypothesis can one
explain the visit of Rajendra Dutt to the office of Dy. SP, ACD on November 22,
1974, his producing currency notes worth Rs. 150; a superior officer like the
Dy SP, ACD, making all arrangements for the trap and the raiding party going to
the house of the accused on November 22, 1974. The visit of Rajendra Dutt soon
followed by the raiding party at the house of the accused on November 22, 1974,
is admitted. Coupled with this, the fact that Keshar Mal, P.W. 2 in his
evidence stated that after Rajendra Dutt entered the room in which appellant
was sitting, Rajendra Dutt on 576 entering the room asked the appellant,
'Hallo, how do you do'. He further stated that the appellant replied, 'I am
sick and suffering from cold'. He deposed that thereafter the appellant asked,
'Have you brought the money', whereupon complainant Rajendra Dutt replied, Yes,
I have brought the money'. He further stated that thereafter Rajendra Dutt took
out the amount of currency notes from his diary and gave the same to the
appellant who took the amount and kept it under the pillow on the cot. If there
was no prior demand the subsequent events remain unexplained as also the demand
as deposed to by P.W. 2 Keshar Mal. But Mr. Anthony urged that this part of the
evidence of Keshar Mal cannot be accepted because he has not stated this fact
in his statement recorded in the course of investigation. Simultaneously it was
pointed out that the other motbir Ram Babu is totally silent in his evidence
about this conversation between the appellant and the complainant. Undoubtedly,
the omission in the police statement of Keshar Mal and non-mentioning all these
facts by the co-motbir would raise some doubt in the mind of the court about
this conversation but as pointed out earlier there are tell-tale circumstances
which do indicate that there must have been a demand and, therefore, these
circumstances as herein before set out will render support to the statement of
Keshar Mal that the demand at the time of visit of Rajendra Dutt must be
pursuant to earlier demand by the appellant. Therefore, it is not proper to say
that there is no evidence of the demand of bribe as on November 20, 1974.
It was next contended that if a bribe is
demanded and agreed to be paid and if the complainant was contemplating not to
pay the bribe but was thinking of initiating action against the officer
demanding the bribe, obviously for the success of the trap to be arranged the
time and place of meeting would be arranged and if it be so it would be
mentioned in the F.I.R. It was said that the very absence of it would show that
there was neither a demand of bribe nor any action was contemplated on November
20, 1974, as is now sought to be made out and, therefore, the court should not
accept any evidence with regard to the trap. In view of the admission of the
appellant in his evidence that Rajendra Dutt followed by a raiding party came
to his house also used as residence-cum-office around 4.30 p.m. on November 22,
1974, omission to mention about the time and place of future meeting in the
F.I.R. Ext. P-12 loses all significance. It is equally possible that on the
very day when the appellant visited the factory of Rajendra Dutt and demanded
bribe, Rajendra Dutt may 577 not have immediately planned to rush to the Anti
Corruption Department. He had declined to give the bribe. In his view his
factory was not covered by the Factories Act. These are the averments in Ext.
P-12. They are not being relied upon as substantive evidence but are used to
explain the conduct of Rajendra Dutt which has evidentiary value. If Rajendra
Dutt did not negotiate giving the bribe and did not agree to give the bribe
though the appellant persisted in the demand and threatened to involve him in
court cases the question of any arrangement for any time and place for giving
the bribe does not arise and obviously it could not have found its place in the
F.I.R. Such things find mention in a F.I.R.
only when the victim agrees to grease the
palms of the officer. Absence in such a situation of such averments in Ext.
P-12 in this case is both natural and obvious.
The next contention is that once Rajendra
Dutt is not available to give evidence not only of the first demand but also
the payment of bribe pursuant to the demand, the evidence of two motbirs
assumes considerable importance. It was urged that both the motbirs are some
petty clerks and it would be both unwise and dangerous to place implicit
reliance on their testimony to convict the Government servant. Factually it is
not correct to say that both the motbirs are petty clerks. Ram Babu was serving
as a clerk in the Central Bank of India and Keshar Mal was serving as a teacher
in Middle School at the relevant time. It is unfortunate that thirty five years
after independence and in this age of common man, there is still not the
eclipse of the high brow. Sanctity of word made dependent upon the office held
or wealth acquired is a nauseating phenomenon.
Truth is neither the monopoly nor the
preserve of the affluent or of highly placed persons. In a country where
renunciation is worshipped and the grandeur and wild display of wealth frowned
upon, it would be the travesty of truth if persons coming from humble origin
and belonging to officewise, wealthwise lower strata of society are to be
disbelieved or rejected as unworthy of belief solely on the ground of their
humble position in society. The converse unfortunately appears to be true. The
submission was sought to be buttressed by reference to Khairati Lal v. The
State(1). A learned single judge of the High Court rejected the testimony in
that case of P.W. 2 Brij Nandan and P.W. 3 Krishan Kumar observing that they
are petty clerks and cannot be styled as independent witnesses. We have moved
far away in seventeen years and this 578 approach does not commend to us. We
say no more. Therefore, without further discussing this aspect, we are utterly
disinclined to reject the testimony of the two motbirs accepted as wholly
reliable by the learned Special Judge and the High Court on the sole ground
that they are petty clerks as if that by itself is sufficient to reject their
testimony. That is a wholly irrelevant consideration.
As a second string to the bow it was urged
that Ram Babu was serving at the relevant time as a Clerk in the Central Bank
of India and Keshar Mal was a teacher in the middle school at Ajmer and both of
them were, therefore, by virtue of their service, likely to be under the police
influence. It is difficult to appreciate this contention.
Undoubtedly Ram Babu was a Clerk in a
nationalised bank and it may be that officers of Anti Corruption Department may
have jurisdiction to investigate lapses on the part of clerks in nationalised
banks. It is not clear whether Keshar Mal who was serving in a Middle School
was a Government employee or the school itself was a Government School. It may
be that the school may be receiving grant but if all institutions which receive
grant from Government and are, therefore, styled as Government Departments, and
have to be treated under the police influence then the net will have to be
spread so wide not to exclude any one as independent of police influence. We
find no justification in the submission that the two motbirs were persons not
likely to be independent of police influence. Both of them have been accepted
as independent witnesses and they do satisfy the test of witnesses independent
of police influence. Reference in this connection was made to Raghbir Singh v.
State of Punjab(1), wherein this Court adversely commented upon selecting one
Makhan, a sweeper in the whole time employment of police, as a witness in a
trap case observing that the Anti Corruption Department should insist on
observing the safeguard of selecting independent persons as witnesses as
scrupulously as possible for the protection of the public servants against whom
a trap may have to be laid. Makhan, a sweeper in the whole time employment of
police can obviously not be said to be independent of police influence but how
does he compare with a clerk in a nationalised bank and a teacher in a middle
school ? It, therefore, cannot be said that the two motbirs could not be styled
as independent witnesses. In passing it was submitted that Rajendra Dutt and
Ram Babu must have intimately known each other because Rajendra Dutt had an
account in the same branch in which Ram Babu was working as 579 clerk. If a
Bank Clerk is supposed to be intimately connected with each account holder in
the bank, banking service would receive encomiums from the society. But it is
difficult to accept the submission that on this account Ram Babu could not be
said to be independent witness and let it be recalled that by the time Ram Babu
came to give evidence Rajendra Dutt was already dead.
The next contention is that even if Ram Babu
and Keshar Mal are independent witnesses there are certain inherent infirmities
in their evidence which would render their evidence untrustworthy of belief.
Before we examine this submission in detail let it be reiterated that the
learned special judge who tried the case and had seen both these witnesses
giving evidence has observed that P.W. 1 Ram Babu and P.W. 2 Keshar Mal are
independent witnesses and there is nothing in their testimony which may induce
any distrust about the facts stated by them and their evidence was relied upon.
The learned judge of the High Court observed that both the witnesses are independent
witnesses and there is no reason why their evidence should not be relied upon.
It is now time to briefly refer to some of
the omissions and contradictions brought to our notice with a view to
persuading us to reject the testimony of both these witnesses. It was pointed
out that according to Ram Babu both he and Keshar Mal told the Dy SP that the
currency notes were under the pillow while according to Keshar Mal it was Ram
Babu who pointed out that the currency notes were under the pillow. We find no contradiction
in this statement because if plural used by Ram Babu was to be relied upon as a
contradiction, cross-examination ought to have been directed on this point. It
is necessary to point out that the cross-examination of both the witnesses is
scrappy, jumpy and not pursuant to any set theory of defence. It is worthwhile
to note that there is not the slightest challenge to the statement of both
these witnesses that while waiting in the lobby outside the room both of them
saw Rajendra Dutt giving marked currency notes to the appellant and appellant
accepting the same and keeping them underneath the pillow.
It was also urged that both the witnesses in
their respective statements in the course of investigation have not referred
that they pointed out that the currency notes were kept under the pillow. A
further omission was pointed out that while Mahavir Prasad has stated that
accused started quarrelling with him which necessitated summoning additional
police help, both the witnesses while referring to the 580 quarrel picked up by
the appellant so as to support the evidence of Mahavir Prasad have failed to
refer to this aspect in their statements in the course investigation.
These are omissions of trivial details and
have hardly any bearing on the main part of the prosecution case. Along with
this the earlier omission in the statement of Keshar Mal already discussed was
reiterated. In our opinion the so- called inner variations between the evidence
of these two witnesses and omissions of trivial details would not cause any
dent in the testimony of these two witnesses. Mr. Anthony after referring to
Darshan Lal v. Delhi Administration(1), urged that if Mahavir Prasad took
search of the appellant for recovering the bribe it would show that neither Ram
Babu nor Keshar Mal had seen appellant keeping marked currency notes under the
pillow. Such an inference cannot be drawn. Ordinarily the police officer would
start searching the person of appellant and while he was doing that act, he was
told where the currency notes were kept by the appellant. Therefore, no such
inference is permissible.
It was lastly urged that the court should not
be influenced by the fact that when the hands of the appellant were dipped in a
solution of sodium carbonate it turned pink which would affirmatively show the
presence of phenolphthalein powder on the tips of fingers of the hands of the
appellant. The fact remains that the solution did turn pink when the hands of
the appellant were dipped in it.
The explanation of the appellant is that both
his hands were caught by the members of the raiding party and it is possible
that the members of the raiding party whose hands must have already been soiled
with the phenolphthalein powder when the arrangements were being made for
laying the trap they must have transmitted the same to the hands of the
accused. This contention stands belied by the evidence on record. Mahavir
Prasad has deposed that he asked one Ganga Singh to demonstrate the
phenolphthalein powder test. After that he was directed to wash his hands. No
other member of the raiding party touched the phenolphthalein powder at the
time of demonstration. Ganga Singh was a member of the raiding party but when
the hands of the accused were sought to be dipped in the solution this task was
assigned to SI Satya Narain. Undoubtedly there is nothing to show that his
hands were soiled with phenolphthalein powder. The hands of Rajendra Dutt must
have been soiled with 581 phenalphthalein powder because he took out the
currency notes from his diary and passed them on to the appellant.
But it is not suggested that Rajendra Dutt
caught the hands of the appellant. Therefore, it is not possible to accept the
submission that when the hands of the appellant were caught in the ensuing
quarrel between him and the Dy SP Mahavir Prasad, phenolphthalein powder must
have been transmitted by persons holding the hands of the appellant.
This tell-tale circumstance would lend ample
independent corroboration if there be any need to the evidence of Ram Babu and
Keshar Mal that they saw Rajendra Dutt giving marked currency notes to the
appellant and the appellant accepting the same and putting them underneath the
Mr. Anthony urged that there are certain
tell-tale circumstances in the case which would render the defence plausible.
It was urged that the appellant did not disclose any guilty syndrome when the
raiding party entered his room and at the first question he denied having
accepted any bribe from Rajendra Dutt. How would these two circumstances be
sufficient to reject the otherwise reliable testimony ? A person with a strong
will would not be upset and may remain cool and collected. The appellant did
pick up a quarrel with the Dy SP. Why ? His suggestion that he insisted on two
independent witnesses being kept present appears to be an afterthought. The
fact that the appellant picked up a quarrel is borne out from the evidence of
the persons present there and by the action of the Dy SP in summoning
additional police help. Therefore, we find no circumstances which would impinge
upon the prosecution case.
We read the entire evidence of two motbirs
Ram Babu and Keshar Mal, evidence of Dy SP Mahavir Prasad, Ext. P-12, the
F.I.R., and we are in agreement with the High Court that the case has been
proved beyond a shadow of reasonable doubt.
The evidence of appellant himself does not
raise a plausible defence and has been rightly negatived.
Mr. Anthony further urged that the appellant
did not demand bribe because there is no such evidence and that even if
Rajendra Dutt appears to have given some currency notes the appellant was an
unwilling victim and the court must frown upon such attempts of the police to
make government servants commit offence. He relied 582 upon the oft quoted
passage in Brannan v. Peek (1). In that case the finding was that when the
second time the police constable attempted to give a bet the accused showed his
reluctance to accept the same. That was also the finding of the justices. The
Court frowned upon the police officers in the absence of an Act of Parliament
going to the place of the accused so as to induce him to commit an offence. We
fail to see how this observation has any relevance in the facts of this case.
Once the suggestion that there was a demand of bribe is accepted the appellant
could not be said to be an unwilling victim nor a fence sitter who was induced
to fall a victim to the trap.
Lastly it was urged that the court would not
be justifiedni raising a presumption under S. 4 (1) of the Prevention of
Corruption Act, 1947. In the facts of this case and in the absence of
presumption even if Rajendra Dutt gave some money to the appellant that by
itself would not establish the offence and the case must fail. Reliance was
placed on Bansi Lal Yadav v. State of Bihar(2). In that case the defence of the
accused was that currency notes were thrust in his pocket. Taking cue from this
statement, the court held that the acceptance of an amount other than legal
remuneration having been admitted the presumption would arise under S. 4(1) and
the burden would shift to the accused. It is in this context that this court
held that where the accused says that involuntarily the amount was thrust in
his pocket he could not be said to have accepted or obtained for himself any
gratification other than legal remuneration which alone permits the presumption
to be raised. Facts in this case being a demand and voluntarily acceptance, the
presumption would squarely arise and has been rightly raised.
Reliance was also placed on the decision of
this Court in Sultan Singh v. State of Rajasthan (3). In that case the
explanation of the appellant was that Rs. 100 was paid to him towards the
arrears of revenue and in the absence of reliable evidence to the contrary the
explanation was held acceptable. This is a decision on the facts of that case
and would be hardly of any assistance in dealing with the points raised in this
583 Therefore, the charge is brought home to
the accused and he has been rightly convicted and the sentence awarded being
the minimum, no case is made out for interfering with the same.
Accordingly this appeal fails and is
dismissed. The bail bond of the appellant is cancelled and he must surrender to
serve out the sentence.
H.L.C. Appeal dismissed.