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PETITIONER: BADRI RAI & ANOTHER

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 18/08/1958

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER

CITATION:  1958 AIR  953            1959 SCR 1141

ACT:        Evidence-Conspiracy to bribe a public servant-Statements  of        co-conspirator-When  admissible against others-Indian  Penal        Code (Act 45 of 1860), ss. 120B, 165A-Indian Evidence Act (1        of 1872), s. 10.

HEADNOTE: The appellants were prosecuted on charges under s. 120B read with s. 165A of the Indian Penal Code, for having  conspired to  commit  the  offence  of bribing  a  public  servant  in connection  with  the discharge of his public  duties.   The case  against  them was that on August 24,  1953,  when  the Inspector  of Police who was in charge of the  investigation of a case in which the second appellant was involved, was on his  way to the police station, the appellants accosted  him on  the road and the second appellant asked him to  hush  up the  case for valuable consideration.  Some days  later,  on August  31 the first appellant offered to the  Inspector  at the  police station a packet containing Rs. 500 in  currency notes  and told him that the second appellant had  sent  the money  through  him in pursuance of the talk that  they  had with him on August 24, as a consideration for hushing up the case.   The  courts below accepted the evidence  adduced  on behalf of the prosecution and convicted the appellants.   On appeal by special leave it was contended that the court  had no  reasonable  grounds to believe that the  appellants  had entered into a conspiracy to commit the offence and that the statement  of  August  3 I was not  admissible  against  the second  appellant because (1) the charge under s.  120B  had been  deliberately added in order that the act or  statement of  the one would be admissible against the other,  and  (2) the object of the conspiracy, namely the payment of the hush money,  had  been  accomplished  before  the  statement   in question was made: Held,  (1) that the incident of August 24 was evidence  that the intention to commit the offence had been entertained  by both  the appellants on or before that date showing a  clear indication of the existence of the conspiracy, and that  the statement  made  by  the first appellant on  August  31  was admissible  not only to-prove that the second appellant  had constituted   the   first  appellant  his   agent   in   the perpetration of the crime but also to prove the existence of

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the  conspiracy  ;  the court  was  therefore  justified  in drawing up the charge under S. 120B along with that under s. 165A of the Indian Penal Code. (2)that  the  payment of the bribe and  the  statement  of August   31   accompanying  it,  were  part  of   the   same transaction,   having  been  made  in  the  course  of   the conspiracy, and the 1142 statement  in question was therefore admissible under s.  10 of the Indian Evidence Act. Mirza  Akbar v. The King Emperor, (1940) L. R. 67 I. A.  336 and R. v. Blake, (1844) 6 Q. B. 126, relied on.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 79  of 1956. Appeal  by special leave from the judgment and  order  dated September  7,  1955,  of the Patna High  Court  in  Criminal Appeal  No.  370 of 1954, arising out of  the  judgment  and order dated July 26, 1954, of the Court of the Special Judge at Bhagalpur in Special Case No. 14 of 1954. B.   R. L. Iyengar, for appellant No. 1. S.   P. Sinha and P. C. Agarwala, for appellant No. 2. R. C. Prasad, for the respondent. 1958.   August 18.  The Judgment of the Court was  delivered by SINHA  J.-This appeal by special leave is  directed  against the  concurrent  judgments and orders of the  courts  below, convicting  the  two appellants under S. 120B read  with  s. 165A,  Indian  Penal Code, and sentencing them  to  rigorous imprisonment  for  18 months, and to pay a fine of  Rs.  200 each, and in default of payment of fine, to undergo  further rigorous  imprisonment for 6 months.  A separate  conviction under  S.  165A has been recorded in respect  of  the  first appellant, Badri.  Under this head, he has been sentenced to rigorous  imprisonment  for 18 months, the sentence  to  run concurrently with the sentence under the common charge. The  facts as found by the courts below, which could not  be successfully challenged before us, areas follows: The second appellant,  Ramji  Sonar, is a goldsmith by  profession  and runs  a shop on the main road in the village Naogachia.   In that  village  there  is a police station and  the  shop  in question is situated in between the police station  building and the residential quarters of the Inspector of police, who was  the  First  Informant in the  case,  resulting  in  the conviction and 1143 sentences  of  the appellants as stated  above.   The  first appellant,  Badri, runs a school for small boys in the  same village about 50 yards away from the shop a foresaid of  the second  appellant.  On August 22,1953, the First  Informant, who, holding the position of an Inspector of police, was  in charge  of  the police station, made a  seizure  of  certain ornaments and molten silver from a vacant building in  front of  the  house  of  the  second  appellant,  Ramji.    Those ornaments  were being melted by six strangers  coining  from distant  places, with implements for melting, said  to  have been  supplied  by  Ramji.   The seizure  was  made  on  the suspicion  that  the ornaments and the  molten  silver  were stolen  property, which were to be sold to Ramji in a  shape which  could  not be identified with  any  stolen  property. After  making  the  seizure-list of’  the  properties,  thus seized, the police officer arrested Ramji, as also the other

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six  strangers. -Ramji was .released on bail that very  day. Police investigations into the case, thus started, followed. During that period, on August 24, 1953, at about 7-30  p.m., the  Inspector was on his way from his residential  quarters to the police station, when both the appellants accosted him on  the road, and Ramji asked him to hush up the case for  a valuable  consideration.   The Inspector told them  that  he could  not  talk to them on the road, and that  they  should come  to  the  police station.   Thereafter,  the  Inspector reported  the  matter to his superior  officer,  the  D.S.P. (P.W. 8), and to the sub-inspector, P.W. 9, attached to  the same police station.  On August 31, the same year, the first appellant,  Badri,  came  to the police  station,.  saw  the Inspector  in the central room of the thana, and offered  to him a packet wrapped in a piece of old newspaper, containing Rs.  500 in currency notes.  He told the Inspector, (P.  W. 1), that the second appellant, Ramji, had sent the     money through him in pursuance of the talk that they had with  him in the evening of August 24, as a consideration for  hushing up the case that was pending against Ramji.  At the time the offer was made, a number of police officers besides a  local merchant,  (P.W. 7), were present there.  The  Inspector  at once 1144 drew  up  the first information report of the offer  of  the bribe  on his own statement and prepared a  seizure-list  of the money, thus offered, and at once arrested Badri and  put him in the thana lock-up.  After the usual investigation the appellants  were  placed  on their trial,  with  the  result indicated above. Both the courts below have found that the prosecution  case, a summary of which has been given above, has been proved  by good  and reliable evidence, and that the defence case  that the  prosecution was started by the inspector out  of  spite and  in order to defend himself against the consequences  of wrongfully  arresting  Ramji,  was unfounded.   We  are  not impressed with the halting criticism of the evidence adduced in  this case on behalf of the prosecution and  accepted  by the courts below.  Ordinarily, this Court does not interfere with concurrent findings of fact. The only serious question raised in this appeal is the point raised  on  behalf  of the second appellant,  Ramji,  as  to whether the statement made by the first appellant, Badri, on August  31,  1953,  that  he had been  sent  by  the  second appellant  with the money to be offered by way of  bribe  to the police officer, was admissible against him.  The learned counsel for the appellant was not able clearly to  formulate his grounds of objection to the admissibility of that  piece of  evidence, which is the basis of the charge against  both the accused persons.  Section 10 of the Indian Evidence Act, is  a complete answer to this contention. The section is  in these terms:- " 10.  Where there is reasonable ground to believe that  two or more persons have conspired together to commit an offence or  an actionable wrong, anything said, done or  written  by any  one  of  such  persons in  reference  to  their  common intention,  after  the time when such  intention  was  first entertained  by  any  one of them, is  a  relevant  fact  as against each of the persons believed to be so conspiring, as well  for  the  purpose  of proving  the  existence  of  the conspiracy  as  for  the purpose of showing  that  any  such person was a party to it.  " The incident of August 24, when both the appellants 1145 approached  the inspector with the proposal that  he  should

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hush up the case against the second appellant, for which  he would  be  amply  rewarded, is clear  evidence  of  the  two persons having conspired to commit the offence of bribing  a public  servant  in  connection with the  discharge  of  his public duties.  There cannot, therefore, be the least  doubt that  the court had reasonable grounds to believe  that  the appellants  had  entered  into a conspiracy  to  commit  the offence.   Therefore,  the  charge under s.  120B  had  been properly  framed  against  both of  them.   That  being  so, anything said or done by any one of the two appellants, with reference to the common intention, namely, the conspiracy to offer  bribe, was equally admissible against both  of  them. The statement made by the first appellant on August 31, that he  had been sent by the second appellant to make the  offer of  the  bribe in order to hush up the case which  was  then under  investigation,  is admissible not  only  against  the maker of the statement-the first appellant-but also  against the  second  appellant,  whose  agent  the  former  was,  in pursuance  of the object of the conspiracy.  That  statement is  admissible not only to prove that the  second  appellant had  constituted  the  first  appellant  his  agent  in  the perpetration of the crime, as also to prove the existence of the  conspiracy  itself.   The incident  of  August  24,  is evidence  that  the intention to commit the crime  had  been entertained  by  both  of  them  on  or  before  that  date. Anything  said  or  done or written by any one  of  the  two conspirators on and after that date until the object of  the conspiracy  had been accomplished, is evidence against  both of them. It was faintly suggested on behalf of the second  appellant, that the charge under s. 120B of the Indian Penal Code,  had been deliberately added by the prosecution in order to  make the  first  appellant’s statement of August  31,  admissible against the second appellant, as otherwise it could not have been  used as evidence against him.  As  already  indicated, the  incident  of August 24, is a clear  indication  of  the existence  of  the conspiracy, and the court  was  perfectly justified  in drawing up the charge under s. 120B also.   It is no 1146 answer  in  law  to say that unless the  charge  under  that section  had been framed, the act or statement of one  could not  be  admissible against the other.  Section  10  of  the Indian Evidence Act, has been deliberately enacted in  order to  make  such  acts  and  statements  of  a  co-conspirator admissible  against the whole body of conspirators,  because of  the  nature of the crime.  A conspiracy  is  hatched  in secrecy and executed in darkness.  Naturally, therefore,  it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts or  statements of the others, unless there is a common bond linking all  of them  together.  Ordinarily, specially in a  criminal  case, one  person  cannot  be made responsible  for  the  acts  or statements of another.  It is only when there is evidence of a concerted action in :furtherance of a common intention  to commit  a  crime, that the law has introduced this  rule  of common  responsibility,  on  the principle  that  every  one concerned in a conspiracy is acting as the agent of the rest of  them.   As soon as the court has reasonable  grounds  to believe  that there is identity of interest or community  of purpose  between a number of persons, any act done,  or  any statement  or  declaration  made,  by any  one  of  the  co- conspirators is, naturally, held to be the act or  statement of the other conspirators, if the act or the declaration has any  relation to the object of the  conspiracy.   Otherwise,

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stray  acts  done in darkness in prosecution  of  an  object hatched  in  secrecy, may not  become  intelligible  without reference to the common purpose running through the chain of acts or illegal omissions attributable to individual members of the conspiracy. It  was also suggested that the statement made by the  first appellant  on August 31, about the purpose of  the  payment, having  been made after the payment, was not  admissible  in evidence  because  the  object of the  conspiracy  had  been accomplished  before  the statement in  question  was  made. Reliance was placed in this connection upon the decision  of their Lordships of the Judicial Committee in Mirza Akbar  v. The King Emperor.(1). But that decision is itself an  answer to the (1) (1940) L.R. 67 I.A. 336. 1147 contention raised.  The payment was made, and the  statement that  it was being made with a view to hushing up  the  case against  the  second  appellant  is  a  part  of  the   same transaction,  that is to say, the statement accompanied  the act of payment of the bribe.  Hence, it cannot be said  that the  statement was made after the object of  the  conspiracy had already been accomplished.  The object of the conspiracy was  the hushing up of the criminal case against the  second appellant by bribing the public servant who was in charge of the investigation of the case.  The object of the conspiracy was  yet far from being accomplished when the  statement  in question was made.  The leading case on the subject is  that of R. v. Blake (1).  That decision is an authority both  for the  positive and the negative aspects of the question.   It lays down what is admissible and what is not admissible.  It held  that the documents actually used in  effectuating  the objects  of the conspiracy, were admissible, and that  those documents which had been created by one of the  conspirators after  the object of the conspiracy had been achieved,  were not admissible. section 10 of the Indian Evidence Act is  on the  same  lines.   It is manifest  that  the  statement  in question in the present case was made by the first appellant in the course of the conspiracy, and accompanied the act  of the  payment  of the money, and is clearly  covered  by  the provisions  of s. 10, quoted above.  It must, therefore,  be held that there is no substance in the only question of  law raised in this appeal.  It is, accordingly, dismissed. Appeal dismissed. (1) (1844) 6 Q.B. 126 ; 115 E.R. 49. 146 1148