2015 (1) TMI 1357 - SC - Indian Laws

Offence registered under the Prevention of Corruption Act - Testimony of a hostile evidence - Held that - In the instant case, PW-8, who was a member of the raiding party had sent the report to the police station and thereafter carried the formal investigation. In fact, nothing has been put to him to elicit that he was anyway personally interested to get the appellant convicted. Even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross-examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the public prosecutor this witness has accepted about the correctness of his statement in the court on 13.9.1999. He has also accepted that he had not made any complaint to the Presiding Officer of the Court in writing or verbally that the Inspector was threatening him to make a false statement in the Court. It has also been accepted by him that he had given the statement in the Court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13.9.99 after going through and admitting it to be correct. It has come in the re-examination that he had not stated in his statement dated 13.9.99 in the Court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos. Reading the evidence in entirety, his evidence cannot be brushed aside. The delay in cross-examination has resulted in his pre-varication from the examination-in-chief. But, a significant one, his examination-in-chief and the re-examination impels us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross-examination he has stated that he had not gone with Baj Singh to the vigilance department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the re-examination. The evidence of PW6 and PW7 have got corroboration from PW8. He in all material particulars has stated about the recovery and proven the necessary documents pertaining to the test carried with phenolphthalein powder. The fact remains that the appellant s pocket contained phenolphthalein smeared currency notes when he was searched. It is apt to take note of the fact that the currency notes that have been recovered from the right side of the pant pocket were actually prepared by PW8 by smearing them with phenolphthalein powder. The appellant was caught red-handed with those currency notes. Hence, we are inclined to hold that the learned trial Judge and the High Court have appositely concluded that the charges leveled against the accused have duly been proven by the prosecution. It is not a case that there is no other evidence barring the evidence of the complainant. On the contrary there are adequate circumstances which establish the ingredients of the offences in respect of which he was charged.

Summary

Issues Involved:
1. Procrastination of trial due to non-availability of witnesses and unwarranted adjournments.
2. Witnesses turning hostile and its impact on the trial.
3. The role and reliability of trap witnesses.
4. The validity of an investigation conducted by an interested party.
5. The sufficiency of evidence for conviction under the Prevention of Corruption Act.

Issue-wise Detailed Analysis:

1. Procrastination of Trial:
The court highlighted the chronic issue of trial delays due to the non-availability of witnesses and unwarranted adjournments sought by counsel. Despite statutory commands under Section 309 of the CrPC and various pronouncements by the Supreme Court, this problem has worsened over time, affecting the fundamental purpose of trials, which is to arrive at the truth based on evidence. The court expressed concern over the passive role of trial judges in adhering to statutory commands and the necessity of timely justice.

2. Witnesses Turning Hostile:
The case illustrated how a witness, despite being firm during examination-in-chief, later turned hostile, undermining the trial's integrity. The court reiterated that even if a witness is declared hostile, their testimony remains admissible and can be relied upon if corroborated by other reliable evidence. This principle was supported by citing previous judgments, emphasizing that the evidence of a hostile witness should not be completely disregarded but scrutinized carefully.

3. Role and Reliability of Trap Witnesses:
The court discussed the status of trap witnesses, who are considered interested but not accomplices. Their testimony requires corroboration, which depends on the case's facts and circumstances. The court referred to various judgments to underline that while the evidence of trap witnesses must be tested rigorously, it can be sufficient for conviction if found reliable and corroborated by other evidence.

4. Investigation by Interested Party:
The court examined whether the investigation conducted by an interested party (PW-8, who was part of the raiding party and lodged the FIR) was vitiated. It concluded that an investigation by such a party is not inherently unfair or biased unless specific prejudice or bias is demonstrated. The court cited previous rulings to support that an officer who initiates an FIR can also conduct the investigation, provided there is no personal interest in the case's outcome.

5. Sufficiency of Evidence for Conviction:
The court assessed whether the evidence presented was sufficient to convict the accused under Sections 7 and 13(2) of the Prevention of Corruption Act. It found that despite the complainant turning hostile, the testimonies of other witnesses (PW-6 and PW-7) and the recovery of tainted money provided adequate corroboration. The court emphasized that mere recovery of money is insufficient for conviction; there must be evidence of demand and acceptance of the bribe. In this case, the testimonies and circumstances established these elements, justifying the conviction.

Conclusion:
The court dismissed the appeal, affirming the conviction and sentence. It criticized the trial court's laxity in handling cross-examination delays, urging adherence to the principles of a fair trial. The judgment was directed to be circulated among trial judges to prevent such delays and ensure proper trial conduct. The appellant was ordered to be taken into custody to serve the sentence.