14 October 1982
Supreme Court


Bench: DESAI,D.A.
Case number: Appeal Criminal 45 of 1980








CITATION:  1982 AIR 1511            1983 SCR  (1) 569  1982 SCC  (3) 466        1982 SCALE  (2)879  CITATOR INFO :  D          1985 SC  79  (13)

ACT:      Evidence-Of persons  belonging to  office-wise, wealth- wise lower  strata of  society-Rejection on  sole ground  of humble origin-Not justified.      Evidence-Witnesses  independent  of  police  influence- Employees of  nationalised banks  and institutions receiving grants from government-Position of.

HEADNOTE:      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, I.P.C. 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, distinguished.

JUDGMENT:      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 Appellant.      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 hereinbefore.      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  any significance.      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 pillow.      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 case. 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. 584