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PETITIONER: KHILLIRAM

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT30/10/1984

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DESAI, D.A.

CITATION:  1985 AIR   79            1985 SCR  (1)1136  1985 SCC  (1)  28        1984 SCALE  (2)679

ACT:      Constitution of  India 1950, Article 136, Special leave to appeal-Appreciation of evidence-Not a jurisdictional bar- Where serious injustice would be done evidence may be looked into/Indian Penal  Code 1860,  Section 161  & Prevention  of Corruption Act 1947, Sections 5(1)(d) and 5(2)      Offence under-trap arranged for giving bribe-Acceptance of gratification-Evidence and proof-powder treatment process with regard  to currency  notes-Not followed-Accused whether entitled to be acquitted.      Practice &  Procedure: Supreme  Court-Special leave  to appeal-Appreciation of evidence-When arises.

HEADNOTE:      The prosecution  alleged that  PW 2  had given  a First Information  Report   of  two   offences   but   appropriate investigation was  not being  done and  charge-sheet was not being furnished  to the  Court. When  PW.  2  contacted  the Appellant the  Head  Constable  of  the  Police  Station  he demanded money. PW. 2 thereupon informed the Anti-Corruption Department about the demand and the Deputy Superintendent of Police agreed to lay a trap. Details were fixed and the trap was laid.  An amount  of Rs.  50 was passed on as the bribe. Five currency  notes each of Rs. 10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. The  prosecution further  alleged that  the accused came pursuant to the request and the money was passed on and the payment of bribe was duly detected.      The  Special   Judge  accepted  the  prosecution  case, convicted the  Appellant under  section 161  of  the  Indian Penal Code  as also  section 5(1)(d) and section 5(2) of the Prevention  of   Corruption  Act,   1947   and   imposed   a consolidated sentence  of two  years’ rigorous imprisonment. The conviction  and sentence  were upheld  in appeal  by the High Court.      Allowing the Appeal, to this Court, ^      HELD: 1. The restriction on appreciation of evidence in an appeal  by special leave is a self-imposed one and is not a jurisdictional bar. Whileordnai 1137 rily this Court would refrain from re-examining the evidence

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in a  case where  serious injustice  would be  done  if  the evidence is  not looked  into it would not be proper for the Court  to  shun  attention  by  following  the  self-imposed restriction. [1140C]      Ram Prakash Arora v. State of Punjab, [1972] Crl. L. J. 1293 and  State of Bihar v. Basawan Singh [1959] S.C.R. 195; referred to.      In the  instant case,  certain important  features have been overlooked  both by the trial Court as also by the High Court. The two panch witnesses have not only turned hostile, but have  disclosed facts  which support the defence version of the  incident. PW.  2, the decoy witness has stated facts which probabilise  the  defence  stand.  Even  the  literate Constable-PW. 7  who  has  not  been  declared  hostile  has supported the  defence version.  The Place and the manner in which the  bribe is  said to  have been offered and received make the prosecution story totally opposed to ordinary human conduct. [1139 H; 1140 A B]      2. Sufficient  material has  been brought  out to merit interference. The  evidence of  the panchas is not available to support  the prosecution  case. There  is discrepancy  in many material  aspects. The  prosecution story is opposed to ordinary human  conduct. The discrepancies go to the root of the matter  and if  properly noticed would lead any court to discard the  prosecution version.  Without powder treatment, for the  absence of  which no  explanation has been advanced the prosecution  story becomes  liable to  be  rejected.  An overall assessment  of the  matter indicates  that the story advanced by  the prosecution  is not  true and  the  defence version seems  to be  more probable.  The conviction  of the appellant is  therefore set aside and he is acquitted. He is discharged from his bail bond. [1145 C-E]      Prakash Chand v. State (Delhi Administration), [1979] 2 S.C R.  330 and  Kishan Chand  Mangal v.  State of Rajasthan [1982] 3 S.C.C. 466; referred to.      3.  The  accused  was,  according  to  the  prosecution evidence, in  full uniform. He had been called up to the bus stand which  is a  public place.  There is  evidence to show that there  were many  people moving around and the area was crowded. There  is also  evidence that the place where PW. 2 met the  accused with  the money  was close to a hotel where people were  standing. In such a surrounding a police-man in uniform would  ordinarily not  accept a  bribe.  The  police station was  not far away and if the accused wanted actually to receive  the bribe  he  would  try  to  choose  a  better environment for  it than  the one where the bribe is said to have been given. Human compunction would not permit a man in the  position  of  the  accused  to  behave  in  the  manner prosecution has pictured him to have. There is also evidence that the  money had  not really been received by the accused and PW  I raised  shouts that  the bribe  had been  accepted before the  amount was  paid. PW.  3 has also stated that he did not  see anybody giving or taking illegal gratification. [1143 B-D]      4. There is no material at all on the record to explain why the  powder treatment  process  was  not  followed  even though the  detection is  alleged to  have been  handled  by experienced people  of the Anti-Corruption Department. It is difficult to accept the position that PW. 6 was not aware of the powder treat- 1138 ment. It  has been  in vogue for well over three decades. If such powder  treat ment  had been  made the  passing of  the bribe would  indeed not  have been  difficult to  be proved. [1145 A-B]

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    Raghbir Singh  v. State  of Punjab  1976 Crl.  L J 172, referred to.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 50 of 1976.      Appeal by  Special leave  from the  Judgment and  order dated the  2nd October,  1975 of the Rajasthan High Court in S.B. Criminal Appeal No. 850 of 1971.      V.B. Raju and N.N. Sharma for the Appellant.      Badri Das Sharma for the Respondent      The Judgment of the Court was delivered by      RANGANATH MISRA  J. This  appeal by special leave seeks to assail  the conviction of the appellant under section 161 of the  Indian Penal  Code as  also  section  5(1)  (d)  and section 5(2)  of the  Prevention  of  Corruption  Act,  1947 (’Act’ for short), and a consolidated sentence of two years’ rigorous imprisonment. Appellant’s conviction by the Special Judge has been upheld in appeal by the Rajasthan High Court.      Appellant at  the relevant  time was  a Head  Constable attached to  the Bhusawar Police Station within the District of Bharatpur. Prosecution alleged that PW. 2 Ram Swaroop had given  first   Information  Report   of  two   offences  but appropriate investigation  was not  being furnished  to  the Court.  He   had  approached  Shanker  Lal,  Head  Constable attached to  the Police Station and had, on demand, paid him some money  by way  of bribe  to expedite  submission of the charge-sheet, Shanker Lal got transferred and appellant came in his place. When contacted, appellant also demanded money. PW. 2  thereupon informed  the  Anti  Corruption  Department about the  demand and  Kastoori Lal,  Dy. Superintendent  of Police attached  to the Anti Corruption Department at Jaipur agreed to lay a trap. Details were fixed up and the trap was laid on March 30, 1969. An amount of Rs. 50 was to be passed on as  the  bribe.  Five  currency  notes  each  of  Rs.  10 denomination with marked initials were made over to PW. 2 to be given as bribe to the accused. For that purpose 1139 Ram Swaroop,  PW. 2,  Kastoori Lal,  PW. 6,  Prabhu Dayal, a literate  Constable   attached  to   the   Anti   Corruption Department,  PW.  1,  accompanied  by  two  Panch  witnesses Girdhari, PW.  3 and  Gulji, PW.  4 came  to  Bhusawar.  Ram Swaroop came  to  the  bus  stand  adjacent  to  the  Police Station. Banshi Kumar, the waterman at the bus stand (DW. 1) was requested  by PW.  2 to inform the accused at the Police Station that  he (Ram  Swaroop) had  come prepared  for  the purpose as  arranged earlier  and accused  should  came  and contact him.  Prosecution further  alleged that  the accused come pursuant to the request and the money was passed on and the payment  of bribe  was  duly  detected.  In  due  course sanction was  obtained and the case came up for trial before the Special  Judge. Prosecution led evidence of 8 witnesses- five as  indicated above  and PW.  5, the  Superintendent of Police (Intelligence),  Jaipur; PW. 7 Kedar Nath, a literate Constable attached  to the Bhusawar Police Station and PW. 8 the Superintendent of Police, Bharatpur, who proved sanction for the prosecution. Certain documents were also produced to support the  charge.  Defence  examined  four  witnesses  in support of  its stand  that the accused had not received any bribe and  he was  falsely implicated without any basis. The Special Judge  accepted the  prosecution case  and convicted the appellant in the manner already indicated. His appeal to the High Court has failed.

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    Ordinarily the  Supreme Court  does not  enter into re- appreciation of  evidence in  exercise of  its  jurisdiction under Article 136 of the Constitution (see Ram Parkash Arora v. State  of Punjab).  It is  also true  that in the case of State of  Bihar v.  Basawan Singh a five Judge Bench of this Court has  laid down  that  if  any  of  the  witnesses  are accomplices, their  evidence is  admissible in  law but  the Judge should  indicate in  his judgment that he had the rule of caution  in mind-namely,  the danger  of  convicting  the accused on the uncorroborated testimony of an accomplice and give reasons  for  considering  it  unnecessary  to  require corroboration;  if,   however,   the   witnesses   are   not accomplices but are merely partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be  tested, in  the same  way as  any other  interested evidence is tested, and in a proper case, the Court may look for independent  corroboration before convicting the accused person.      There are certain features in this case which appear to have been  overlooked both  by the  trial Court  as also the High Court. The 1140 two panch  witnesses have  not only turned hostile, but have disclosed fact  which support  the defence  version  of  the incident. PW.  2, the  decoy witness  has stated facts which probabilise the  defence stand.  Even the literate Constable PW. 7  who has  not been  declared hostile has supported the defence version. The place and the manner in which the bribe is  said   to  have  been  offered  and  received  make  the prosecution story totally opposed to ordinary human conduct- a feature  which the  two Courts  have overlooked. We are of the opinion that this is a case where the evidence has to be looked  into   with  a  view  to  finding  out  whether  the prosecution case  can at all be accepted. The restriction on appreciation of  evidence of an appeal by special leave is a self-imposed one  and is  not a jurisdictional bar. While we reiterate that  ordinarily this  Court  would  refrain  from reexamining the  evidence, in a case where serious injustice would be  done if  the evidence  is not looked into it would not be  proper for  the Court to shun attention by following the self-imposed restriction.      Prosecution has  examined 8 witnesses in all. PW. 5, as already   noted,    is   the    Superintendent   of   Police (Intelligence) at  Jaipur who  is not  a material witness at all. Similarly,  PW.8 being  the Superintendent of Police of Bharatpur, is connected with sanction for prosecution and is not  material   for  any  other  purpose.  This  leaves  six witnesses in  the field.  Of them,  PWs. 1  and 6 are of the Anti Corruption Department, PW. 1 being a literate Constable attached to  that establishment  and PW.  6  being  the  Dy. Superintendent of  Police under whose active supervision the trap was  laid. PW.  2 is the decoy witness himself on whose report the  trap was  laid. PWs.  3  and  4  are  the  Panch witnesses and  PW. 7 is a literate Constable attached to the Police Station.      PW. 2  is a supplier of water at the bus stand like DW. 1. From  his own  evidence  it  appears  that  he  has  been involved in laying of traps. In his cross-examination he has admitted: "before  this occurrence, I took the Dy. S. P. for arresting another  employee Shankerlal. The statement A V in Ex. P.  8 was  given by  me in  the presence  of the  Deputy Sahib." He  seems to  have made  two other complaints before the police  and those  were found to be false and police had already decided  to prosecute him under s. 182, I.P.C. It is after that  incident that present move had been taken. PW. 2

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has admitted in his cross-examination: "Prior to this I took the Deputy  Sahib to  get Shankerlal  caught but  Shankerlal could not  be caught  and the  Deputy  said  that  you  have harassed me  for nothing." It is the case of the prosecution that Shankerlal was the Head Constable 1141 attached to the police station and that PW. 2 had negotiated with him.  PW. 3  who is a Panch witness has stated that the Deputy Superintendent  of  Police  had  told  him  that  Ram Swaroop was  giving illegal gratification to Shankerlal. PW. 3 was  previously employed in the Police Department, and had been discharged.  According to  him, the name of the accused was never  discussed and  even at the time of payment it was Shankerlal who  was supposed to receive the bribe. PW. 3 has said that  he is not a literate person and his statement and signature had been extracted from him under pressure. PW. 4, the other  Panch witness  has similarly  stated that  he had been told  that Shankerlal  was to  be bribed and he made no statement with  reference to  the accused.  In view  of this evidence it becomes doubtful whether the Panch witnesses had really anything to do with the offer of bribe to the present accused. Since  PW. 2  admitted the position that the Deputy Superintendent  of  Police  had  been  taken  previously  in respect of a bribe to Shankerlal and the two Panch witnesses have referred  to that incident, it appears logical to infer that these  two witnesses were really referring to the other incident. The  defence version seems to be that the trap had been arranged  with reference  to Shankerlal. Ram Swaroop on reaching the  bus stand requested DW. 1 to ask Shankerlal to come  but  since  Shankerlal  was  absent  from  the  Police Station, the accused who was the senior-most of the lot then available within  the police  station came out. This part of the defence  story has been supported by PW. 7 Kedar Nath, a Constable attached  to the  Police Station. He in his cross- examination has  stated: "Banshi  Kumar said that Shankerlal Head Constable  is being  called at the stand. There I, Babu Ram, Constable  and Khilli  Ram (accused)  were present.  We said, ’Khilli  Ram, you  being the Head may go’. Accordingly he went."  To that  effect is  the evidence  of DW.  I,  the person whose  services Ram  Swaroop had  admittedly taken to call  the  accused  from  the  police  station.  He  stated: "Shankerlal was sent for from the police station at 6 p.m. 2 years 20 days ago. Then one more person was with him. I went to the  Police station  Bhusawar. Shankerlal  was not  found there. The  two constables  and the  accused present  in the Court were there. On the advice of the police constables the accused accompanied  me to  the bus  stand." The evidence of PW. 7  and DW.  1 thus  clearly support the position we have indicated above. It is quite probable, therefore, that PW. 2 had negotiated  with Shankerlal  only  and  so  far  as  the accused is  concerned there  was no  negotiation and  he had come out  to the  bus stand after being told by DW. 1 in the manner and  circumstances indicated  by PW.  7 and DW. 1. If that be so, 1142 implicating the  accused for  the offence of receiving bribe would be without any basis.      PW. 2  stated in  his evidence  that the  appellant had demanded a  sum of Rs. 100. When this was pointed out to him in cross-examination he stated that the accused demanded Rs. 100 from  him for  taking out  the application  and this was settled between  to be paid to the accused. This part of the story runs  counter to  the deposition  of PW. 6 who stated: "Ram Swaroop  came to  my office  on 30.3.69  and said  that Shankerlal has been transferred and in his place Khilli Ram,

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Head Constable  has came  and the latter has settled with me to accept  bribe of  Rs. 50."  The discrepancy  is indeed  a material one in the facts of the case.      The defence  of the  appellant has  all throughout been that he  never received  any bribe. PW. 1 in his evidence in chief has  stated that  the Deputy  Superintendent of Police demanded the  bribe amount  to be  taken out and the accused stated that  he had  not received  the amount.  To the  same effect is the evidence of PW. 2. This evidence of PWs. 1 and 2 makes it clear that the first reaction of the accused when accosted was  a denial  of receipt  of any  bribe. That  has reiterated the  same in his examination under s. 342, Cr. P. C. According  to the defence version of the matter there was really no  passing  of  any  money.  PW.  1,  the  Constable accompanying the  Dy. Superintendent of Police, according to the prosecution,  searched the  person of  the  accused  and found the  five  currency  notes.  There  is  no  acceptable evidence that  the Constable  had given search of his person before he  started searching  the person of the accused. PW. 6, the  Dy. Superintendent  of Police  was at a distance. He had not  seen the  actual passing  of the money. Once PWs. 3 and 4  the Panch  witnesses did  not support the prosecution case, the  only evidence for the passing of the money has to rest is  of  PWs.  1  and  2.  Both  of  them  were  vitally interested  in  the  fate  of  the  prosecution  and  would, therefore, be  disposed to  support the prosecution case. We have already indicated that PW. 2 was anxious to satisfy the police as he was about to face the prosecution under s. 182, I.P.C. for  having made  false allegation  in two cases. The Deputy Superintendent of Police has stated that he had taken PW. 2 to task for having brought him once to Bhusawar on the allegation that Shankerlal was to receive the bribe and that had failed.  In these  circumstances it is quite likely that these two witnesses would go out of their way to support the prosecution version. 1143      If Shankerlal  was the  person  with  whom  PW.  2  had negotiated in  the matter  of taking  of the bribe, it would indeed be difficult to accept, the position that the accused readily agreed  to receive  the  amount  when  offered.  The accused was,  according to the prosecution evidence, in full uniform. He  had been  called up to the bus stand which is a public place. There is evidence to show that there were many people moving around and the area was crowded. There is also evidence that the place where PW. 2 met the accused with the money was  close to  a hotel  where people were standing. In such a  surrounding a police man in uniform would ordinarily not accept  a bribe. The police station was not far away and if the accused wanted actually to receive the bribe he would try to  chose a better environment for it than the one where the bribe  is said  to have  been given.  Human  compunction would not  permit a  man in  the position  of the accused to behave in  the manner  prosecution has pictured him to have. There is  also evidence  that the  money had not really been received by  the accused  and PW.  1 raised  shouts that the bribe had  been accepted  before the  amount was paid. PW. 3 has narrated this part of the story thus.           "There the  Deputy Sahib  and we  all stood  at on      place and  Ram Swaroop (PW. 2) and Prabhu Dayal (PW. 1)      went towards  the police  station. Both had some talks.      Prabhu Dayal  remained this  side and  Ram Swaroop went      inside the  police station.  Ram Swaroop  returned  and      looked here  and there.  In the  meantime Prabhu  Dayal      constable shouted  that the  money has been found, come      on; come on..."

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    PW. 4  stated that  he did  not see  anybody giving  or taking illegal gratification. DW. 1 has stated:           "I  told  pointing  toward  Ram  Swaroop  and  his      companions  that  they  are  summoning.  Thereupon  the      companion of  Ram Swaroop  (refereeing to Prabhu Dayal)      shouted near  the ’Imli’ tree that ’caught, caught’. He      took out  from the  pocket of  his pant  notes like and      putting them in his hand shouted, ’caught, caught’."      DW. 3  the hotelier  has stated:  "I and  the Inspector went together,  then  the  notes  were  in  the  hand  of  a Constable." He  has further  said  that  the  Constable  was shouting that the amount had been recovered from Khilli Ram. DW. 4, an independent witness 1144 described this  part of  the story  thus: "At the same time, Banshi waterman  and Killi  Ram accused present in the Court came from  the side of Police Station. The man standing near Ram Swaroop  (obviously  Prabhu  Dayal),  shouted:  ’caught, caught’. He  took out  the currency notes of Rs. 50 from his (witness’)  pocket   and  raised   this  alarm."  In  cross- examination this  witness stated  that the person who raised the cry  said that the notes have been recovered from Khilli Ram but  Khilli Ram  was saying  that he  did not  take  the notes.      Two other  aspects are  relevant to  be indicated here. According to  PW. 1, Kastoori Lal, the Deputy Superintendent of Police  ordered him  to take  the search  of the  accused whereupon he  proceeded to  do the  needful. PW. 2, however, stated that  it was  the Dy.  Superintendent of  Police  who recovered the  notes from  the accused.  PW. 6 has, however, indicated that  under his orders search was conducted by PW. 1. There  is again material discrepancy as to from where the amount was recovered. PW. 2 has stated that the accused kept the notes  of Rs. 50 given by him in the left side pocket of his shirt.  PW. 6  has stated:  "When Prabhu Dayal conducted the search  of the accused, Ext. P-1, 2, 3, 4 and 5 notes of the denomination  of Rs.  10 each  were found  out from  the right side  pocket of the shirt of the accused." Ext. P-1 is the recovery  memo purported  to have  been prepared  att he spot. It indicates: "Then the settled five currency notes of the denomination  of Rs.  10 each  were recovered  from  the right hand pocket of the worn shirt of khaki uniform." There is thus  a discrepancy  as to  the place from where recovery was made.      It was  pointed out  by this  Court in Raghbir Singh v. State of Punjab:           "Where a  trap is laid for a public servant, it is      desirable that the marked currency notes which are used      for   the   purpose   of   trap,   are   treated   with      phenolphthalein powder  so that  the handling  of  such      marked currency  notes by  the public  servant  can  be      detected by  chemical process  and the  Court does  not      have to  depend on  oral evidence which is sometimes of      dubious character  for the purpose of deciding the fate      of the public servant."      Ordinarily in  cases of  this type the powder treatment is made.  There is  no material  at all  on  the  record  to explain why such a 1145      process was  not followed  in  the  instant  case  even though  detection   is  alleged  to  have  been  handled  by experienced people  of the Anti Corruption Department. PW. 6 was a  very senior officer and in fact by the time the trial took place  he had retired from service. It is difficult for us to  accept the  position that  he was  not aware  of  the

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powder treatment.  It has  been in vogue for well over three decades now.  If such  powder treatment  had been  made, the passing of the bribe would indeed not have been difficult to be proved.      We are  prepared to  agree with counsel to the State of Rajasthan that  ordinarily a  case of  type is  difficult to prove and  the law  is settled  that even the uncorroborated testimony of  trap witnesses  can be acted upon as indicated by this  Court in  the case of Prakash Chand v. State (Delhi Administration),  and   Kishan  Chand  Mangal  v.  State  of Rajasthan, but  in the  present case  the  evidence  of  the panchas is  not available  to support  the prosecution case. There  is   discrepancy  in   many  material   aspects.  The prosecution story  is opposed to ordinary human conduct. The discrepancies go  to the  root of the matter and if properly noticed would  lead any  court to  discard  the  prosecution version. Without  powder treatment, for the absence of which no explanation  has been  advanced,  the  prosecution  story becomes liable to the rejected. An overall assessment of the matter indicates  that the story advanced by the prosecution is not  true and  the  defence  version  seems  to  be  more probable. In  these circumstances  we are  of the  view that sufficient  material   has  been   brought  out   to   merit interference in  this appeal. We allow the appeal, set aside the conviction  of the  appellant  and  acquit  him.  He  is discharged form his bail bond. N.V.K.                                       Appeal allowed. 1146