9911796707
TMI Blog1995 (3) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenced to rigorous imprisonment for one years and to pay a fine of ₹ 500/and in default to undergo simple impris- ionment for a further period of one month for the offence under the prevention of Corruption Act and to rigorous imprisonment for one years for the offence under Sections 161 read with 12-B I.P.C. The substantive sentences of imprisonment were directed to run concurrently. The appeals filed by them were dismissed by the High Court. Since it was a common judgment of the High Court in two ap- peals, A-1 has chosen to file two appeals i.e. Criminal Appeals Nos. 451-52/91 and A-2 has chosen to file only one appeal i.e. Criminal Appeal No.553/91. Since, common questions arise in these appeals, they can be disposed of together by a common judgment. 2.At the relevant time A-1 was the Tehsildar and A-2 was village Assistant. One Kunjan, deceased father of P.W.1, Rajan applied for patta with regard to 55 cents of Sarkar Porambokhu land in Kalur Village. Kunjan had remitted the necessary amount on 25.1.1974 pursuant to a notice. The balance amount of ₹ 42/was also remitted some time in 1975. After satisfactory compliance of the required formalities, patta was dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that A-2 collected the money as directed by him. 4.A-2 stated that neither he conspired nor colluded with A-1 to obtain illegal gratification from P.W.1 and that he was not present in the office of A-1 on 9.6.1987. A-2, however, admitted that he received a sum of ₹ 500/- from P.W. 1 in the office room of A-1 on 10.6.87 as per the instructions of A-1 but added that the amount was accepted without knowing that it was bribe money. He further explained that on.9.5.87 he obtained a loan of ₹ 1980/- from his provident fund account which was sanctioned by A-1 and from that amount ₹ 500/- was taken by A- 1 as a loan stating that the same was required to meet his urgent necessities and he promised to return the same within two days and the balance of ₹ 1480/- alone was paid to him on 9.6.87. On 10.6.87 at about 4 P.M. while he was in the office of A-1 seeking permission to leave the office early, P.W.1 alongwith another person came to the office of A- 1 and P.W. 1 offered some amount to A- 1 who instructed A-2 to receive that amount from P.W. 1 telling him that the same was towards the amount of ₹ 500/- which he had taken as loan on the previous day. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in any manner demolish the evidence of P.W. 1. 8.Now the question is whether the inconsistencies found in the evidence of P.Ws. 1 and 2 do in any manner affect the prosecution case as such? P.W.1 in his chief examination deposed that P.W.2 who is his close relation, went to the office of A1 and found out that the patta was ready and the same would be given on spending some money. On 8.6.87 P.W.2 told him that patta would be given on giving bribe to A-1. On 9.6.87 both of them went to the office of A-1 and discussed with him but A-1 demanded ₹ 500/- and at that time A-2 was also present in the office Since P.W. 1 did not have the money with him on 9.6.87 he did not give the same. Then A-1 directed him to give the money the next day at the waiting shed near Swapna Theatre, Thrissoor in the morning of 10.6.87. P.W. 1 sent P.W.2 to the waiting shed who told A-1 that he (P.W.1) would bring the money after selling pep- per in the market. P.W. 1 further deposed that after realising the money he went to meet P.W.2 who told him that A-1 has asked P.W. 1 to go and meet him with the money at 4 P.M. At that stage P. W. 1 decided not to give bribe and decided to inform the vigilance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o which they told that they will pay directly to A-- 1 but A-2 told them that the money may be given to him and need not be paid directly to A-1. Accordingly P.W. 1 gave that tainted notes to A-2. Thereupon P.W. 1 gave the signal. He gave further details about the recovery of the money from A-2 and drawing of Mahazars etc. Towards tie end of the chief examination a specific question was put to him by the prosecutor asking whether it was not A-2 who demanded the money to which P.W.2 stated that it is only A-2 who demanded the money saying that it has to be given to A-1. Because of this answer, the witness was treated hostile and in the cross-examination he denied having mentioned certain facts in his earlier statement. 9. Learned counsel submitted that P.Ws. 1 and 2, the material witnesses are inconsistent in their versions regarding the demand of bribe and therefore it cannot be held that the prosecution has established that there was such a demand by A-1. Therefore he cannot be held guilty and that consequently A-2 who has received ₹ 500/- from P.W.1 cannot also be held to have conspired with A-1 in obtaining illegal gratification. 10. No doubt P. W. 2 has been treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Now confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous test which are generally applied to a case of an approver. Though bribe givers are generally treated to be in the nature of accomplices but among them there are various types and gradation. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be -a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving die trap cannot succeed. When there is such a demand by the public servant from person who is unwilling and if to do public good approaches the authorities and lodges complaint then in order that the trap succeeds he has to give the money. There could be another type of bribe giver who is always willing to give money in order to get his work done and having got the work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence This rule of practice has become virtually equivalent to a rule of law, and since the Court of Criminal Appeal came into operation this Court has held that, in the absence of such a warning by the judge, the conviction must be quashed If after the proper caution by the judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that die accomplice's testimony was uncorroborated. In Rameshwar v. The State of Rajasthan 1952 SCR 377, Bose, J., after referring to the rule laid down in Baskerville's case (supra) with regard to the admissibility of the uncorroborated testimony of an accomplice, held thus: That in my opinion, is exactly the law in India so far as accomplices are concerned and it is certainly not any higher in the case of sexual offences. The only clarification necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury. In these casesit is necessary that the judge should give some indication in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all .... It would not at all tend to show that the party accused participated in it. Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it was contended that the mother in this case was not an independent source. Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, many crimes which are usually committed between accomplices in secret, such as incest, offences with females (or unnatural offences) could never be brought to justice. (emphasis supplied) 14.We shall now refer to some of the judgments wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted; if they are not accomplices but are partisan or interested witnesses who are concerned in the success of the trap, their evidence must be tested in the some way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person. (emphasis supplied) It was further concluded thus: As was observed by Lord Reading in 1916-2 K B 658 (C) even in respect of the evidence of an accomplice, all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. In 1952 SCR 377 at p.385 : (AIR 1952 SC 54 at p.57 (B), to which we have referred in an earlier paragraph, the nature and extent of corroboration required, when it is not considered safe to dispense with it, have been clearly explained and it is merely necessary to reiterate that corroboration need not be direct evidence that the accused committed the crime; it is sufficient even though it is merely circumstantial evidence of his connection with the crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is cor- roborated in material particulars but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. But it may in appropriate case look for corroboration. In the instant case, the trial court and the High Court have fully accepted the evidence of Ramanlal, the Dy. S.P. Erulker and Santramji. That being so, it was open to them to convict the appellants solely on the basis of their evidence. That apart, their evidence is substantially corroborated by evidence of Dahyabhai, Sanghvi and Sendhalal. In the case of partisan wit- nesses, the corroboration that may be looked for is corroboration in a general way and not material corroboration as in the case of the evidence of accomplices. (emphasis supplied). In Dalpat Singh and another v. State of Rajasthan, AIR 1969 SC 17 this Court after referring to Basawan Singh's case (supra) observed thus: We are unable to accept the contention of the learned counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission of Shri Frank Anthony that he is the very Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no 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 by any precedential guidance. We are forced to say this because of late we have come across several judgments of Courts of Session of 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. 15.From above resume of various decisions the following principles are deducible. Section 133 of the Evidence Act lays ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual in a crime is not voluntary but is the result of pressure. In such a case the element of mens rea to commit the crime is not apparent and cannot strictly be classified as an accomplice and at any rate be treated as being on the same footing. Where bribe has already been demanded from a man and if without giving the bribe he goes to the police or magistrate and brings them to witness the payment it will be a legitimate trap and in such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the court depending upon the facts and circumstances of each case. However as a rule of prudence, the court has to scrutinise the evidence of such interested witnesses carefully. 17.Now coming to the nature of corroborating evidence that is required, it is well settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tainted money was recovered from A-2 while he was just going out of the office of A-1. Unless A-1 has demanded the money and has also directed him to hand over the same to A-2, there was no reason at all as to why P.W.1 should hand over the money to A-2. P.W. 1 has consistently stated that A-1 demanded the bribe and that A-2 received the amount as stated by him. Therefore it cannot be said that there is no corroboration regarding the demand. This is a case where each of the accused tried to throw the blame on the other but taking the overall circumstances into consideration in the light of the evidence of P.Ws. 3 and 4 alongwith the evidence of P.Ws. 1 and 2 both the courts below have consistently held that the evidence of these witnesses establish the guilt of the accused and we see no reason to come to a different conclusion. In this view of the matter it is not necessary to go into the question whether the statement made by A-2 which is in the nature of a confession by a co-accused be used against A- 1. 19. Coming to the sentence we find that there are good grounds to reduce the same. The offence itself is said to have been committed in the year 1987 and both the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
