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TMI Blog1975 (9) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... they had come to receive one Mst. Mumtaz, who was expected from Bombay by train at about 1.45 P. M, The appellant questioned if Mumtaz was being brought to Delhi for prostitution. Ramesh and his companions refuted the insinuation and informed the appellant that Mumtaz was a dancing girl and not a prostitute. The appellant then demanded a bribe of Rs. 100/- from Ramesh and party, warning that in the event of non-payment, they would be implicated in some case. Ramesh paid Rs. 30/- there and then to the appellant. The latter insisted that they would not be released unless they paid the balance of Rs. 70/-. On the suggestion of the women, the appellant detained Ramesh but let off the women with the direction to send the balance of Rs. 70/-. Mst. Maya and Mst. Jayna returned to their residence on G. B. Road and informed Dal Chand (FW 7) all about the incident. Mst. Maya then handed over Rs. 70/- to Dal Chand for securing the release of Ramesh. Dal Chand, instead, went to the office of the Anti-Corruption Police where Inspector Paras Nath recorded his statement, Ex. PW 3/A. The Inspector organized a raiding party. He summoned Surinder Nath (PW 3) and Sohan Pal Singh (PW 4), two clerks f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant were then dipped in a solution of sodium carbonate which turned pink. After preparing the seizure memo and the raid report (PW 9/A), the Inspector sent the same to the Police Station for registration of the formal First Information Report. 3. After completing the investigation and securing the necessary sanction for prosecution of the appellant, he laid a charge-sheet against him in the court of the Special Judge, Delhi. 4. Examined under Section 342, Cr. P.C., the appellant denied the 1 prosecution case, and gave this version of the occurrence: I left the Police Post at 4.15 p. m. in uniform for patrol duty at the New Delhi Railway Station platforms because there is a heavy rush of trains at that time. I was sent for by the Incharge Police Post through Dev Raj Constable. I came to the Police Post through an entrance towards the platform. At that time in-charge, Police Post was busy in a conversation on telephone. I was carrying a baton in my hand. I entered my room and placed the baton on the table. My room is hardly 8' x 4 1/2'. Just at that time Inspector Paras Nath came there and secured me near the door of my room. On a few occasions I did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police Post for patrol dirty at 4.15 P.M. He stated that there was a Standing Order according to which, all Police Officers going on patrol were peremptorily required to go in uniform. 7. Om Prakash Sahni DW 5, is an important witness examined by the defence. He is a Sub-Inspector who, at the relevant time, was In-charge of the Police Post of New Delhi Railway Station. His room in the Police Post is on one side of the verandah and that of the accused on the other side at a distance of hardly six feet. The dimensions of the room of the accused are 7' x 6' and it has only one door which opens into the verandah. DW 5 completely discounted the prosecution version. According to him, on 16-1-1970, he was throughout present in his room from 1.30 P.M. to 5.55 P.M. During this period he did not see any stranger, or suspect in the room of the accused. The witness swore that between 5.30 P.M. and 6 P.M., the accused was on patrol duty. He further stated that at about 5.45 P.M., a telephone call was received from the sister of the accused from Kirti Nagar, whereupon he sent Constable Dev Raj to inform the accused about it. In response to the message sent by the witness, Sat Pal acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cteristics fall easy victims to the illegal exploits of unscrupulous and dishonest officers. The Judge was further of the opinion that the testimony of the Panch witness. Surindernath (PW 3), also cannot be discarded straightway on account of his having been cross-examined by the prosecution. He rejected the defence version propounded by DWs 3 and 5 and concluded that the evidence given by the PWs, including Dal Chand, and Inspector Paras Nath, coupled with the 'compelling' circumstantial evidence was sufficient to establish the passing of the tainted notes to the accused and the subsequent recovery of the same from him. Calling in aid the presumption under Section 4 of the Prevention of Corruption Act, be convicted the appellant under Section 5(2) read with Section 5(1)(d) of the Act and under Section 161, Penal Code. 11. In appeal the High Court affirmed the findings of the trial Court In seeking support for the prosecution case from the evidence of the hostile witnesses, it went far ahead of the trial court The High Court sought assurance from the statements of PWs 3 and 4, thus: After a detailed reference to the evidence adduced in this case it becomes clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to impeach their credit, and indeed their evidence stood thoroughly discredited. (For this proposition reliance has been placed on a recent decision of this Court in Jagir Singh v. The State 1975CriLJ1009 (c) that the High Court has erred in using the police statements of P. Ws. 3 and 4 for seeking assurance and corroboration of the prosecution story. Such user is not permissible under the proviso to Section 162, Cr.P.C. (d) (i) that it was clear from the record that P. Ws 1, 2, 7 and 8 are persons of low moral character and were haunting the Railway Station in connection with their immoral trade, that the appellant was a stumbling block in the way of their immoral pursuits, and consequently, these PWs. had a motive to falsely implicate the appellant, (ii) PW9, who was an Inspector of Anti-Corruption Police was also highly interested witness. His overzeal can be gauged from the fact that he investigated this offence under Section 161, Penal Code, although he was not duly empowered to do so. (iii) The evidence of these interested witnesses is replete with material discrepancies and, as a rule of prudence, could not, in the absence of corroboration from independent sources, be ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is true that ordinarily, as a matter of practice, this Court does not review the evidence and disturb concurrent findings of fact unless those findings are clearly unreasonable or are vitiated by an illegality or material irregularity of procedure or are otherwise contrary to the fundamental principles of natural justice and fair-play. The instant case is one which falls within the exception to this rule. As shall be presently discussed, the courts below have adopted a basically wrong approach. They have not only used the statement of certain witnesses in a manner which is manifestly improper or impermissible under the law, but have also erred in accepting the testimony of the interested witnesses without due caution and corroboration, requisite in the peculiar circumstances of the case. It is therefore, necessary to have another look at the evidence and the salient features of the case. 16. We will begin with the evidence of the trap witnesses. They are Ramesh PW 1, Dal Chand, PW 7, and Inspector Parasnath, PW 9. It cannot be gainsaid that all the three were concerned with the success of the trap, and, as such, were interested witnesses. What the courts below appear to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under the Gambling Act, also. 19. Viewed against this background, the suggestion made by the defence in cross-examination, to these witnesses, that they were loitering at the Railway Station to procure customers for their immoral business, could not be said to be devoid of substance. The purpose of their visit to the Railway Station at that busy hour, according to them, was to see Mst. Mumtaz who was then expected to arrive from Bombay by train. This Mumtaz was not produced by the prosecution, though she was repeatedly summoned. In the circumstances, the defence version, that these persons were roaming there to hawk their wares does not fall beyond the orbit of reasonable probability. The above circumstances further lend assurance to the appellant's plea that he had on several occasions, previously, reprimanded these witnesses for visiting the Railway Station for immoral trade. Even, according to the prosecution, the appellant had rounded up Ramesh and party on the accusation that they were soliciting; customers for their immoral business. Dal Chand stated that on being questioned by Inspector Parasnath, the appellant, explained that since Ramesh was found loiteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Jayna, according to whom, it was Mst. Maya and not PW 1 who had given this money to the appellant. In the context, it may be noted that apart from Rupees 70/- in tainted notes the further sum of Rs. 30/- was not recovered from the appellant or from anywhere in fee Police Post The story of the advance payment of Rs. 30/-, therefore, does not inspire confidence. Further, the conduct of the appellant in not releasing Ramesh forthwith even after the alleged receipt of Rs. 79/- as gratification, was not the natural conduct of a person whose demand for a bribe had been satisfied. Dal Chand has said that the appellant did not, on receiving the amount, allow Ramesh to go away, but said that Dal Chand could go, and that Ramesh would be sent later on. Ordinarily, such discrepancies and small improbabilities in the evidence of witnesses are not of much consequence. But when the witnesses are manifestly disreputable persons, their testimony before it can be acted upon, must pass the test of severe scrutiny and in the process and in the context of this case even minor infirmities may assume importance. 23. It is true that there is no absolute rule that the evidence of an interested witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that it has not been shown that he had any hostile animus against the appellant though such an allegation was made. Nor has it been shown that he had long acquaintance or friendship with Dal Chand and party. But we cannot lose sight of the stark fact that he was an Inspector of the Anti-Corruption Staff of Police. He was the architect of the trap and the head of the raiding party. Although the power conferred on him under the order, dated 21-3-1968, by the Administrator of the Union Territory of Delhi, did not extend to the investigation of an offence under Section 161, Penal Code, yet, with zeal outrunning discretion, he went ahead with the execution of the trap and the investigation. Being deeply concerned with the success of the case, he was also an interested witness. Not being an independent witness, his evidence could not furnish the kind of corroboration requisite in the circumstances of the case. 27. This takes us to the evidence of the independent witnesses, P. Ws. 3 and 4. Both have not, in the main, supported the prosecution. With the leave of the court, the Public Prosecutor cross-examined and confronted them with their contradictory statements which they had made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unfavourable to him argued that this course is necessary as a security against the contrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favourable evidence and afterwards by hostile evidence ruin his cause. It was reasoned further that this is a question in which not only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings, that the ends of justice are best attained by allowing a free and ample scope for scrutinising evidence and estimating its real value, and that in the administration of criminal justice more especially, the exclusion of the proof of contrary statements might be attended with the worst consequences . Besides, it by no means follows that the object of a party in contradicting his own witness is to impeach his veracity, it may be to show the faultiness of his memory (see Best, page 631, 11th Edn.). 32. The rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms hostile witness and unfavourable witness and by attempting to draw a distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and he must be asked whether or not he has made such statement. (Emphasis added) 36. The construction of these provisions, however, continued to cause difficulty, particularly in their application to 'unfavourable' witnesses. In Greenough v. Eccles (1859) 5 CBNS 786 these provisions were found so confusing that Cockburn C. J. said that there has been a great blunder in the drawing of it, and on the part of those who adopted it. 37. To steer clear of the controversy over the meaning of the terms hostile witness, adverse witness, unfavourable witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared adverse or hostile . Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character. 39. The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for, interpreting and applying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prafulla Kumar Sarkar v. Emperor an eminent Chief Justice, Sir George Rankin cautioned, that when we are invited to hark back to dicta delivered by English Judges, however, eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact . It was emphasised that these departures from English law were taken either to be improvements in themselves or calculated to work better under Indian conditions . 40. Unmindful of this substantial difference between the English Law and the Indian Law, on the subject, the Calcutta High Court in some of its earlier decisions, interpreted and applied Section 154 with reference to the meaning of the term adverse in the English Statute as construed in some English decisions and enunc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion and to hold that the fact that the witness is being cross-examined implies an admission by the cross-examiner that all the witness's statements are falsehood, 43. The matter can be viewed yet from another angle. Section 154 speaks of permitting a party to put to his own witness questions which might be put in cross-examination . It is not necessarily tantamount to cross-examining the witness. 'Cross-examination', strictly speaking means cross-examination by the adverse party as distinct from the party calling the witness. (Section 137, Evidence Act). That is why Section 154 uses the phrase put any questions to him which might be put in cross-examination by the adverse party . Therefore, neither the party calling him, nor the adverse party is, in law, precluded from relying on any part of the statement of such a witness. 44. The aforesaid decisions of the Calcutta High Court were over ruled by a Full Bench in Prafulla Ku mar Sarkar's case AIR1931Cal401 (supra). After an exhaustive survey of case law, Rankin C. J. who delivered the main judgment, neatly summed up the law at pages 1428-1430 of the Report (pp. 407-408 of AIR): In my opinion, the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view even then is not that the statement is evidence of the truth of what it contains, but that if the jury think that the conduct, silence or answer of the prisoner at the time amounted to an acceptance of the statement or some part of it, the jury may consider that acceptance as an admission (The King v. Norton, Percy William Adams, (1910) 2 KB 496 and (1923) 17 C A R 77. But apart from such special cases, which attract special principles, the unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against the accused as proof of the truth of what it asserts. 46. We are in respectful agreement with this enunciation. It is a correct exposition of the law on the point. 47. The Bombay, Emperor v. Jehangir Cama AIR 1927 Bom 501; , Ammathayarammal v. Official Assignee AIR 1933 Mad 137; Patna, Nebati v. Emperor AIR 1940 Pat 289; Patna Sahdeo v. Bipti AIR1969Pat415 ; Rajasthan ILR (1954) ; AIR 1955 Raj 65, Oudh Shyam Kumar v. Emperor AIR 1941 Oud 130 Punjab AIR 1955 Pun 5715; Madh Pra., AIR1964MP30 ; Orissa, In re Kalu Singh; Rema Naik v. State AIR1965Ori31 ; Mysore AIR 1966 Mys 248; Kerala, 1951 ; Jammu Kashmir AIR 1953 J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a witness is to be rejected en bloc. 53. In the light of the above principles, it will be seen that, in law, the part of the evidence of the Panch witnesses who were thoroughly cross-examined and contradicted with their inconsistent police statements by the Public Prosecutor, could be used or availed of by the prosecution to support its case. But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. These witnesses contradicted substantially their previous statements and as a result of the cross-examination, their credit was substantially, if not wholly, shaken. It was therefore, not proper for the courts below to pick out a sentence or two from their evidence and use the same to support the evidence of the trap witnesses. 54. Nor was the High Court competent to use the statements of these witnesses recorded by the police during investigation, for seeking assurance for the prosecution story. Such use of the police statements is not permissible. Under the Proviso to Section 162, Cr. P.C. such statements can be used only for the purpose of contradicting a prosecution witness in the manner indicated in Section 145, Eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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