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PETITIONER: HAZARI LAL

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT15/02/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J)

CITATION:  1980 AIR  873            1980 SCR  (2)1051  1980 SCC  (2) 390

ACT:      Prevention of  Corruption Act,  1947-Section 4(1)-Scope of-Accused  charged   with  demanding   and  taking  illegal gratification-Many  prosecution  witnesses  turned  hostile- Statements made by witnesses in the course of investigation- If could  be used as substantive evidence-Evidence of police inspector-If needs corroboration.      Panch   witnesses-Clerks-If   could   not   be   called independent witnesses.

HEADNOTE:      The accused  (appellant) who  was charged with offences under section  5(1) (d)  of the Prevention of Corruption Act and  section  161  of  the  Penal  Code  was  convicted  and sentenced  by   the  Special   Judge.  The  convictions  and sentences were confirmed by the High Court.      The prosecution  alleged that  the scooter  rickshaw of the complainant driven by his driver was one day involved in a traffic  accident and  the vehicle was taken to the police station by  the accused  who was  a  police  constable.  The complainant  obtained  orders  of  the  Magistrate  for  its release but  the accused  declined to  release  the  vehicle unless he  was paid a sum of Rs. 60. The complainant was not prepared to  pay the  sum  demanded.  He  then  went  to  an Inspector of  the Anti-Corruption  Department and  lodged  a complaint   that   the   accused   was   demanding   illegal gratification from  him  for  the  release  of  his  scooter rickshaw which was ordered by the Magistrate to be released.      The prosecution  further  alleged  that  the  Inspector called two panch witnesses and after noting down the numbers of six  ten rupee  currency notes  given by the complainant, treated them  with phenol  phthalene powder and gave them to the complainant. It was arranged that the complainant should hand over  the currency  notes to  the  accused  and  should thereafter make  a signal  at which  the Inspector and panch witnesses would  enter the room. The complainant carried out the plan  as  arranged  and  gave  the  call  on  which  the Inspector and  panch  witnesses  entered  the  room  of  the accused. On  seeing the  Inspector, the  accused removed the currency notes  from his  pocket and  flung them  across the wall into  the adjoining  room. The notes were collected and when compared  with the numbers noted earlier, they tallied.

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The  hands  of  the  accused  were  then  dipped  in  sodium bicarbonate solution which, colourless earlier, turned pink. Similarly the  handkerchief in  the right side pocket of the trousers of  the accused  was removed  and  also  dipped  in sodium bicarbonate solution. That too turned pink.      Before the  trial court  many of  the witnesses  turned hostile and  one of  the  panch  witnesses  became  mentally deranged.      In appeal  it was  contended before this Court that (1) the courts below had made free use of the statements made by the witnesses in the course of investigation as if they were substantive evidence and, if they were excluded, the rest of the evidence would not be sufficient to draw the presumption under 1054 section 4(1)  of the  Prevention of  Corruption Act, (2) the fact that the Inspector was the very police officer who laid the trap, should be sufficient to insist on corroboration of his evidence.      Dismissing the appeal, ^      HELD: 1(a) The courts below were clearly wrong in using as substantive  evidence statements made by witnesses in the course of investigation. [1059E]      (b) Section  162 of  the  Code  of  Criminal  Procedure imposes a bar on the use of any statement made by any person to a  police officer  in the  course of investigation at any enquiry  or   trial  in   respect  of   any  offence   under investigation at  the time  when such  statement  was  made, except for the purpose of contradicting the witnesses in the manner provided  by section  145 of  the Evidence Act. Where any part  of such  statement is so used any part thereof may also be  used in  the re-examination  of the witness for the limited purpose  of explaining any matter referred to in his cross-examination. The  only other exception to this embargo on  the   use  of  statements  made  in  the  course  of  an investigation relates  to the  statements falling within the provisions of section 32(1) of the Evidence Act or permitted to be proved under s. 27 of the Evidence Act. [1059A-C]      (c) The  contention of the prosecution that the earlier statements with  which witnesses  were  confronted  for  the purpose of  contradiction could  be taken into consideration by the  Court in  view of  the  definition  of  "proved"  in section  3  of  the  Evidence  Act  has  no  substance.  The definition of  the term  "proved" does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred. [1059G]      2(a)  The   evidence  of   the  Inspector  is  entirely trustworthy and  there is no need to seek any corroboration. [1059H]      (b) There  is no rule of prudence which has crystalized into a  rule of law, nor any rule of prudence which requires that the  evidence of such police officers should be treated on the  same footing  as evidence  of accomplices  and there should be  insistence on  corroboration. In  the  facts  and circumstances  of   a  particular   case  a   court  may  be disinclined to  act upon  the evidence  of such  an  officer without  corroboration,   but,  equally  in  the  facts  and circumstances of  another case  the court may unhesitatingly accept the  evidence of  such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard  and fast  rule nor  can there  be any  precedential guidance. [1060A-B].      In the  instant case  the proved  facts were  that  the complainant made  a report  to the  Inspector, and  currency

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notes whose  numbers were  noted and which were treated with phenol phthalene powder were handed over to the complainant. The complainant  went into  the accused’s  room and came out after a  short while  giving the  agreed  signal.  When  the Inspector rushed  in, the  accused threw  the currency notes across the  wall into  the adjoining room. His hands and the handkerchief when  dipped  in  sodium  bicarbonate  solution turned  pink  and  lastly  instead  of  giving  a  plausible explanation as  to how  the phenol  phthalene powder came to his hands  and the  handkerchief in  his pocket  all that he could say  was that  he "knew  nothing about  it". From  all these facts the only inference that follows is that currency notes were  obtained by the accused from the complainant. It is not necessary that the passing of 1055 money should  be proved  by direct  evidence, it may also be proved by circumstantial evidence. The events which followed in quick  succession in  the present  case led  to the  only inference that  the money  was obtained  by the accused from the complainant.      3. Under  section 114 of the Evidence Act the Court may presume the  existence of  any fact  which is likely to have happened regard  being had  to the  common course of natural events, human  conduct and  public and  private business, in their relation  to facts  of the particular case. One of the illustrations to  this section is that the Court may presume that a  person who  is in  possession of  stolen goods  soon after the  theft is  either the  thief or  has received  the goods knowing  them to  be stolen, unless he can account for his possession. So too in the facts and circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall  had obtained  them from the complainant who, a few minutes earlier, was shown to have been in possession of the notes. Once  it is  found that  the accused had obtained the money from  the complainant  the presumption under section 4 (1) of  the Prevention  of  Corruption  Act  is  immediately attracted. The presumption is rebuttable, but in the present case there  is no  material to  rebut the  presumption.  The accused was,  therefore,     rightly convicted by the courts below. [1061D-F]      Sita Ram  v. The  State of  Rajasthan AIR 1975 SC 1432; Suraj Mal  v. The  State (Delhi  Administration) AIR 1979 SC 1408 held inapplicable.      4. There  is no  force in  the contention  that persons holding clerical  posts  could  not  be  called  independent witnesses on  the ground  that they  would be  under fear of disciplinary action  if they did not support the prosecution case. The  respectability and  verasity of  a witness is not necessarily dependent  upon his status in life and it cannot be said  that clerks  are less  truthful and  amenable  than superior officers. [1060E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 211 of 1974.      Appeal by  special leave  from the  Judgment and  order dated 19-4-1974  of the  Delhi High  Court in  Crl.  A.  No. 186/72.      Frank Anthony,  S. K  Dholakia and R. C. Bhatia for the Appellant.      H. S. Marwah and R. N. Sachthey for the Respondent.      The Judgment of the Court was delivered by

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    CHINNAPPA  REDDY,  J.  The  appellant  Hazari  Lal  was convicted by  the learned  Special Judge, Delhi, of offences under section  5(2)  read  with  section  5(1)  (d)  of  the Prevention of  Corruption Act,  1947, and Section 161 of the Indian Penal  Code. On  the first  count he was sentenced to suffer rigorous  imprisonment for  a period of two years and to pay  a fine  of Rs.  500. On  the  second  count  he  was sentenced to  suffer rigorous  imprisonment for  a period of two  years.   The  two   sentences  were   directed  to  run concurrently. The  convictions and  sentences were confirmed by the High Court of Delhi. 1056      The case  which the prosecution set out to prove before the Trial Judge was briefly as follows:      The scooter  rickshaw belonging  to Sri Ram (P.W.3) and driven by his driver Ram Lubhaya (P.W. 6) was involved in an accident on  July 12, 1969. The scooter rickshaw and a tonga which were involved in the accident were taken to the Police Station, Kashmere  Gate by  the accused,  a Police constable attached to  that station.  P.W. 3  obtained orders from the Magistrate for  the release  of his  vehicle and went to the Police Station  to  obtain  delivery  of  the  vehicle.  The accused, who  was present took him outside and told him that the vehicle would be given to him only if he paid a bribe of Rs. 60.  P.W.  3  then  went  away.  He  went  to  the  Anti Corruption Department  and made statement to Inspector Paras Nath, P.W.  8. After recording the statement of P.W. 3, P.W. 8 sent  for two  persons Davinder  Kumar (P.W.  4) and Kewal Krishan. The  statement of  P.W. 3 was read out to P.W. 3 in the presence  of the  two Panch witnesses Davinder Kumar and Kewal Krishan.  P.W. 3  then produced  six currency notes of the value  of Rs.  10 each.  The numbers  of the  notes were noted and  they were  treated with  phenol phthelene powder. After the  usual instructions  were given  to P.W. 3 and the panch  witnesses,   the  raiding   party  proceeded  towards Kashmere Gate.  P.W. 3,  P.W. 6  and Kewal Krishan went into the Police  Station, while P.W. 8 and others stayed outside. The money was handed over to the accused who took it and put it inside  the right hand pocket of his trousers. P.W. 6 and Kewal  Krishan  then  came  out  and  signalled  to  P.W.  8 whereupon P.W.  8 and  the Panch  witnesses went  inside the Police Station.  The accused  was present inside. As soon as he saw  the party  led by  P.W. 8  he took  out the currency notes from  the right  side pocket of his trousers and threw them across  the  wall  into  the  adjoining  room.  P.W.  8 instructed some  of the  police officers accompanying him to rush to  the adjoining  room and  to keep  a watch  over the notes which  must have  fallen  there.  He  then  introduced himself to  the accused  and took him to the adjoining room. Some of  the notes  were lying  on the  table  of  the  Duty Officer in  that room  while others had fallen on the ground near the  chair of  the Duty  officer. The  six  notes  were collected in the presence of the witnesses and their numbers were compared  with the  numbers noted before they proceeded on the raid. The numbers tallied. The accused was questioned by the  Inspector and  he denied  that he  had demanded  any bribe and  kept silent  about the  acceptance of  the bribe. Both  the  hands  of  the  accused  were  dipped  in  sodium carbonate solution  and the  solution which  was  previously colourless turned pink. The same test was repeated 1057 with the  handkerchief which was taken out of the right hand side pocket of the accused and also with the trousers of the accused. Each  test resulted  in  the  bicarbonate  solution turning  pink.  After  completion  of  the  investigation  a

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charge-sheet was laid against the accused being for offences under s.  5(2) read  with s.  5(1) (d)  of the Prevention of Corruption Act and s. 161 of the Indian Penal Code.      All that  has been  mentioned in the previous paragraph was what  the prosecution  set out to prove before the Trial Court. But  many of  the witnesses turned volte face. P.W. 3 stated in  his evidence  that on  the first occasion when he went to the Police Station to obtain delivery of his scooter rickshaw it  was not  the accused  that was  present but one Hawaldar. It  was the  Hawaldar and  not  the  accused  that demanded the  bribe of  Rs. 60 from him. According to him at the time of the raid, when he, P.W. 6 and Kewal Krishan went inside the  Police Station  they found the accused there and asked him  to take  the sum of Rs. 60 and return the scooter rickshaw. P.W.  3 stretched  his hand with the money towards the pocket  of the  accused’s trousers  but the accused said the money might be paid to the person for whom it was meant. He refused  to receive  the money  and jerked  P.W. 3’s hand with his  hand as  a result  of which  the notes  came to be flung across  the wall  into the  neighbouring room. He told the Inspector  that the notes had been flung across the wall and that  the accused  had neither  demanded the amount from him nor  accepted the  money from him. On the other hand the accused  had  refused  to  take  the  money  from  him.  The Inspector recovered  the notes  from the  neighbouring room, placed them  on  the  table  and  thereafter  subjected  the handkerchief and the pocket of the accused’s trousers to the phenol phthelene  test. The  implication of this part of the evidence was  that it  was as  a result  of the  handling of these articles  by the  Inspector that  they  came  to  have phenol phthelene  powder and  that was  the reason  why  the solution turned  pink. P.W.3  was  treated  as  hostile  and cross-examined by  the prosecution  with  reference  to  the earlier statements  made by him. P.W. 6 followed suit and he too  was   declared  hostile   and  cross-examined   by  the prosecution with reference to his earlier statements.      Of the  two  panch  witnesses  Kewal  Krishan  was  not examined as he had become mentally deranged before the trial of the  case. Davinder  Kumar was  examined as  P.W. 4. This witness supported  the prosecution  case in some particulars but in  regard  to  other  particulars  he  made  statements contrary to  his earlier  statements. He was also treated as hostile and  cross-examined by the prosecution. In substance his chief-examination  was to  the affect  that P.W.3, P.W.6 and 1058 Kewal Krishan  went inside  the  Police  Station,  while  he stayed outside  with the  Inspector P.W. 8. P.W.3, P.W.6 and Kewal Krishan  came out  after sometime  and stated that the accused had  accepted the bribe. The raiding party then went inside. On  seeing the  Inspector the accused got suspicious and threw  away the  currency notes across the wall into the neighbouring room.  In examination-in-chief  he also  stated that before  they proceeded  to the  Police Station  for the raid, statement  of both  P.W.3 and P.W.6 had been recorded. He stated that after the bribe was given P.W.3 also came out and signalled  to P.W.8  that  the  bribe  had  been  given. Another statement  made by him in chief-examination was that he was  unable to  remember if  the Inspector questioned the accused at  the time  of the  raid. As these statements were contrary to  his earlier statements he was cross-examined by the prosecution.      Paras Nath,  (P.W.8) spoke to the complaint made to him by P.W.3.,  the action that he took, the raid etc. Regarding the actual  raid he  stated  that  P.W.3,  P.W.6  and  Kewal

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Krishan  first   went  inside   the  Police  Station.  After sometime, P.W.6  and Kewal  Krishan came  out and  signalled that P.W.3 had passed the bribe money and that P.W.3 and the accused were  in the room. When he went in, the accused took out the notes from the right side pocket of his trousers and threw them  across the wall into the adjoining room. He then spoke to the test made by him etc.      On this  evidence both  the learned  Sessions Judge and the High  Court found the accused guilty of the two offences with which  he was  charged.  Shri  Frank  Anthony,  learned counsel for  the appellant  submitted that  the Courts below had made free use of the statements made by the witnesses in the course  of the  investigation as if such statements were substantive evidence. If those statements were excluded from consideration there  would be  no evidence  of any demand or acceptance of bribe by the accused. All that the prosecution would be  left with  would be  the evidence of the Inspector and P.W.4  to the  effect that  the  accused  took  out  the currency notes  from the  right side  pocket of his trousers and flung them across the wall into the adjoining room. That evidence according  to the  learned  counsel  would  not  be sufficient, even  if accepted, to draw the presumption under s. 4(1)  of the  Prevention of  Corruption Act. Reliance was placed upon  the decision  of this  Court in Sita Ram v. The State of  Rajasthan,(1) and  Suraj Mal  v. The  State (Delhi Administration (2). 1059      The learned  counsel was  right in his submission about the free  use made  by the  Courts below  of  statements  of witnesses  recorded  during  the  course  of  investigation. Section 162  of the Code of Criminal Procedure imposes a bar on the  use of  any statement made by any person to a Police Officer in  the course  of investigation  at any  enquiry or trial in  respect of  any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by s.145 of the Indian Evidence Act. Where any part of such statement is so used  any part  thereof may  also  be  used  in  the  re- examination of  the  witness  for  the  limited  purpose  of explaining any  matter referred to in his cross-examination. The only  other exceptions  to this  embargo on  the use  of statements made  in the  course of an investigation, relates to the  statements falling within the provisions of s. 32(1) of the  Indian Evidence  Act or permitted to be proved under s. 27  of the Indian Evidence Act. S.145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made  by him  in writing and reduced into writing and relevant  to matters  in question,  without such writing being shown  to him  or being  proved but,  that  if  it  is intended to  contradict him  by the  writing, his  attention must, before  the writing  can be proved, be called to those parts of  it which  are  to  be  used  for  the  purpose  of contradicting him.  The Courts  below were  clearly wrong in using as  substantive evidence  statements made by witnesses in the  course of  investigation. Shri H. S. Marwah, learned counsel for  the Delhi Administration amazed us by advancing the  argument   that  the   earlier  statements  with  which witnesses were  confronted for  the purpose of contradiction could be  taken into  consideration by  the Court in view of the definition  of "proved" in section 3 of the Evidence Act which  is,  "a  fact  is  said  to  be  proved  when,  after considering the matters before it, the Court either believes it to  exist or  considers its  existence so probable that a prudent man,  ought, in  the circumstances of the particular case to  act upon  the supposition  that it exists." We need

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say no more on the submission of Shri Marwah except that the definition of  proved does  not enable  a Court to take into consideration matters,  including statements,  whose use  is statutorily barred.      After excluding  irrelevant material  we are  left with the evidence  of P.W.8  and that  of  P.W.4  whose  evidence corroborates that  of P.W.8 in several material particulars. We, however,  wish to  say that  the evidence  of  P.W.8  is entirely trustworthy  and there  is  no  need  to  seek  any corroboration. We  are not prepared to accept the submission of Shri  Frank Anthony  that the  fact that  he is  the very Police Officer who laid the trap should be sufficient for us to insist upon 1060 corroboration. We  do wish  to say  that there is no rule of prudence which  has crystallized  into a  rule of  law,  nor indeed  any  rule  of  prudence,  which  requires  that  the evidence of  such officers  should be  treated on  the  same footing as  evidence of  accomplices  and  there  should  be insistence on  corroboration. In the facts and circumstances of a  particular case a Court may be disinclined to act upon the evidence  of such an officer without corroboration, but, equally, in  the facts and circumstances of another case the Court may  unhesitatingly accept  the evidence  of  such  an officer. It  is all a matter of appreciation of evidence and on such  matters there can be no hard and fast rule, nor can there be  any precedential  guidance. We  are forced  to say this because  of late  we have come across several judgments of Courts of Session and sometimes even of High Courts where reference is  made to  decisions of this Court on matters of appreciation of  evidence and  decisions of pure question of fact. While  on this  subject of appreciation of evidence we may also refer to an argument of Shri Frank Anthony based on the observations  of a  learned single judge in Kharaiti Lal v. The State,(1) that persons holding clerical posts and the like should  not be  called  as  panch  witnesses,  as  such witnesses could  not really  be called independent witnesses as they would always be under fear of disciplinary action if they did  not support  the prosecution case. We do not think we can  accept the  submission of  Shri Frank  Anthony.  The respectability  and   the  veracity  of  a  witness  is  not necessarily dependent upon his status in life and we are not prepared to  say that  Clerks are  less  truthful  and  more amenable than their superior officers.      From the  evidence of  P.W.8 and  that of  P.W.4 we may take the following facts as established: P.W.3 made a report to P.W.8. He produced six currency notes of the denomination of ten  rupees whose  numbers  were  noted  and  which  were treated with  phenol phthelene  powder. Thereafter the notes were handed  over to  P.W.3. P.W.3,  P.W.6 and Kewal Krishan went inside  the Police  Station. After  sometime P.W.6  and Kewal Krishan  came out  and gave  a signal. P.W.8 then went inside the Police Station. On seeing him the accused who was inside the  Police Station with P.W.3 took out some currency notes from  the right  side pocket of his trousers and threw them across  the partition wall into the adjoining room. The notes which were so thrown out by the accused, were found to be the  same  notes  which  had  been  treated  with  phenol phthelene and  handed over  to P.W.3  before the  raid.  The handkerchief which was taken out of the right side pocket of the trouser of the accused as well as the 1061 right side  pocket itself  were subjected  to a  test  which showed that  they too  had come  into  contact  with  phenol phthelene powder. It may be noted that the circumstance that

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the handkerchief  (Ex.P-4) recovered  from  the  right  side pocket of  the  pant  on  the  person  of  the  accused  was subjected to the colour test which indicated the presence of phenol phthelene  powder on that handkerchief was put to the appellant in  his examination  under section  313,  Criminal Procedure Code.  Instead of giving any explanation as to how this phenol  phthelene powder came on the handkerchief lying in his  pocket, the appellant replied. "I know nothing about it."  From  these  facts  the  irresistible  inference  must follow, in  the absence of any explanation from the accused, that currency notes were obtained by the accused from P.W.3. It is  not necessary  that the  passing of  money should  be proved  by  direct  evidence.  It  may  also  be  proved  by circumstantial evidence.  The events which followed in quick succession in  the present  case lead  to the only inference that the money was obtained by the accused from P.W.3. Under s.114  of  the  Evidence  Act  the  Court  may  presume  the existence of  any  fact  which  it  thinks  likely  to  have happened, regard  being had  to the common course of natural events, human  conduct and  public and  private business, in their relation  to facts  of the particular case. One of the illustrations to s.114 of the Evidence Act is that the Court may presume that a person who is in possession of the stolen goods soon  after the  theft, is  either the  thief  or  has received the  goods knowing them to be stolen, unless he can account for  his  possession.  So  too,  in  the  facts  and circumstances of the present case the Court may presume that the accused  who took out the currency notes from his pocket and flung them across the wall had obtained them from P.W.3, who a  few  minutes  earlier  was  shown  to  have  been  in possession of  the notes. Once we arrive at the finding that the  accused   had  obtained   the  money  from  P.W.3,  the presumption under s.4(1) of the Prevention of Corruption Act is immediately  attracted.  The  presumption  is  of  course rebuttable but  in the  present case there is no material to rebut the  presumption. The  accused was, therefore, rightly convicted by the Courts below.      We will now refer to the two decisions of this Court on which Shri Frank Anthony relied. In Sita Ram v. The State of Rajasthan, (supra)  the  evidence  of  the  complainant  was rejected and  it was  held that  there was  no  evidence  to establish that  the accused  had received  any gratification from any  person. On  that  finding  the  presumption  under s.4(1) of  the Prevention  of Corruption  Act was not drawn. The question whether the rest of the evidence was sufficient to establish  that the  accused had  obtained the money from the complainant 1062 was not  considered. All  that was  taken as established was the recovery of certain money from the person of the accused and it  was held  that mere recovery of money was not enough to entitle  the drawing  of the  presumption under s.4(1) of the Prevention of Corruption Act. The Court did not consider the further question whether recovery of the money alongwith other circumstances  could establish  that the  accused  had obtained gratification  from any person. In the present case we have  found that  the circumstances  established  by  the prosecution entitled  the Court  to hold  that  the  accused received the  gratification from  P.W.3. In Suraj Mal v. The State (Delhi  Administration) (supra)  also it was said mere recovery of  money divorced  from  the  circumstances  under which it  was paid  was not  sufficient when the substantive evidence in  the case  was not  reliable to prove payment of bribe or  to show  that the accused voluntarily accepted the money. There  can be  no quarrel  with that  proposition but

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where  the   recovery  of   the  money  coupled  with  other circumstances leads  to  the  conclusion  that  the  accused received gratification  from some  person  the  Court  would certainly be  entitled to  draw the presumption under s.4(1) of the  Prevention of  Corruption Act.  In our view both the decisions are  of no  avail to  the appellant and as already observed by  us conclusions  of fact  must be  drawn on  the facts of  each case  and not on the facts of other cases. In other words  there can  be no  precedents  on  questions  of facts. The appeal is, therefore, dismissed. P.B.R.                                     Appeal dismissed. 1063