PRAKASH CHAND versus STATE (DELHI ADMINISTRATION)

PRAKASH CHAND

STATE (DELHI ADMINISTRATION)

November 20, 1978

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.]

Pn::Yen~ion Df Corn1ption Act-Uncorroborated testimony of trap wi•ess, whether suffecient foundation for canviction-E\·idence Act S. 8, cMUiHCt of accused confronted by police officer during investigation, admissibility-Whether excluded by s. 162 Cr. P.C. 1974.

Prakash Chand an Overseer-Section Officer in the Delhi Development Authority office, was charged under s. 5(1)(d) read withs. 5(2) of the Pre-vention of Corruption Act ands. 161 IPC, for demanding and acccpti.g Rii. 30'/-bribe from the trap witness Ram Niwas Sharma, an architect, for permitting him to make some necessa.ry corrections in the building plans submittN by him to oomply with certain objections raised by the D.D.A. On repon by Shri Sharma, an Inspector of Anti-Corruption Establishment, accompaniod him to the D.D.A. office, with two panch witnesses and on receiving pre-NTang:ed signal, entered the room and challenged the accused who woo stunned :ta.d. tcpt mum. Then three pre-marked ten rupees notes were found in the tie dealin: with Sharma's matter, the :file was found under the table and the accaied had his foot on it. The panch ,.,..itnesses did not fully support the prosecatio. cL'iC. They resiled from their earlier statements made in the course of iu.Telti&ation, wer'e treated as hostile by tb.e prosecution, and were disbelieved by tile Courts. The accused was duly tried, c.onvicted and sentenced, and the conTiction was upheld by the High Court

It was contended that the Uncorroborated testimony of trap witaess. was not sufficient to found the conviction, and also that the evidence relating to the conduct of the accused when challeuged by the police i~sptXtor, wli cx-cludctl by s. 162 Cr. P.C. 197-4 and was inadmissible in evidence.

' Dismissi•..ig the appeal, the Court

HELD : ( 1) We are· unable to agree that no conviction can ever be baaed on the uncorroborated testimony of "trap witness". Where the circum1tan1:es justify it, court may refuse to act upon the uncorroborated testimony of trap witness. On the other hand court may well be justified in acting up:>n the uncorroborated testimony of trap witness, if the court is satisfied from the facts and circumstooces of the case that the trap witness is witae.u of truth. [334C-E]

The State of Bihor v. Basawan Singh, AIR 1958 SC 500, and JJ11anuprasad Hariprasad Dave, & Anr. v. The S1:ite of Gujarat, AIR 1968 SC 1323, applied.

Ram Prakash Arora v. The State of Punjab, AIR 1973 SC 49g and TJarsl:t;n Lal v. The Delhi Adrninistration, AIR 1974 SC 218; diffcrea-H tiated.

2. The conduct of person ag&inst whom an offence is alleged, is admi.ssiblc under s. 8 of the Evidence Act. What is excluded by s. 162 Cr. P.C. iJi the

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Staten1ent fl]adc to police officer in the course of investigativn and not the evidence relating to :the conduct of an accused person (not amounting to -st.itement) when confronted or questioned by police officer, during the course of an ;nvestigation. [336G-H, 337 A]

D. V. Narasimhan v. State, AIR 1969 A.P. 271, held inapplicable.

Himachal Pradesh Administration v. Om Prakash, AIR 1972 SC 975 and Zwinglee Ariel v. State of M.P., AIR 1954 SC 15; reaffirmed.

&o Shiv Bohadur Singh & Anr. v. State of Vindhya Pradesh, AIR 1954 SC 322 and State of Madras v. A. Vaidyanatha lyer, AIR 1958 SC 61, applied.

OUMINAL APPELLATE JURISDICTION : Criminal Appeal No. 193

~ of 1974.

Appeal by Special Leave from the Judgment and Order dated 1-3-1974 or the Delhi High Court in Criininal Appeal No. 119/72.

Frank Anthony, N. S. Das Bahl and Shushil Kumar for the ~llant.

E. C. Agarwala and R. M. Sachthey for the Respondent.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.-The appellant before us was convicted by the learned Special Judge, Delhi of an offence under Section 5 (1 )( d) read with Section 5 (2) of the Prevention of Corruption Act and Sec-tion 161 Indian Penal Code, and sentenced to suffer rigorous imprison-ment for period of one year on each count. He was also sentenced to pay fine of Rs. 100/-. The conviction and sentence were con-firmed by the High Court and the appellant has come up in appeal by special leave. The prosecution case briefly was as follows :

P.W. 6 Ram Niwas Sharma, an Architect by profession prepared building plans for one M. L. Balla and submitted them to the Delhi Development Authority for sanction. The plans were submitted on 6th May, 1969. They were rejected on 26th May, 1969. Revised plans were there~fter submitted on 16th June, 1969. Certain objec-tions were raised and in order to comply with those objections P.W.6 went to the office of the Delhi Development Authority on 11-7-1969. He met the accused who was Overseer-Section Officer and asked him to be penn'ttcd to make necessaty corrections in the building plans. Instead of giving the file to P.W.6 the accused demanded sum of Rs. 30/- as bribe. P.W.6 told him that he did not have the money with him whereupon the accused asked him to come on 14th July, 1969, in the afternoon; with the money. On 14th July, 1969, P.W.6 went to the Anti-Corruption Office at about 12 noon and

gave report Ex. P.W.1/ to P.W.9, an Inspector of the Anti-Corrup-l!ion EstabU.hment. P.W.9 sent for P.Ws. 1 and 2 from the Sales Tai< office. The report made by P.W.6 was read over to them. Thereafter, P.W.6 prdduced three ten rupee notes, the numbers of which were noted by P.W.9 in the presence of the Panch witnesses P.Ws. 1 and 2. Thereafter it was arranged that they should all proceed to the office or th8 Delhi Development Authority. There P.W. 6 was to give the bribe to the accused and on his giviug the bribe to the accused, P.W. I was to give signal to P.W. 9. As arranged P.W.6 went to the office of the Delhi Development Authority alongwith Panch witnesses. The Inspec-tor. stopped at the door of the room. P.W.6 went to the table of the accused and asked him for the file for the purpose of makiug necessary corrections in the building plans. The accused asked him if he bad brought the money. On his saying 'yes' the file was taken out and given to P.W. 6. As there were number of other file~ on the fable of the accused, P.W. 6 took the file to another table at distance of one or two paces from the table of the accused. After making tJ1e corrections P.W. 6 handed over the file to the accused alongwitb Its. 30/-. Instead of taking the money the accused asked P.W. 6 to place the money in the file which he accordingly did. The accused then took the file and placed it nnder the table, putting his foal: on it. At that stage P.W .. 1 gave the agreed signal. P.W. 9 came to th.r room, disclosed hi~ identity to the accused and questioned him whether he bad accepted Rs. 30/- from P.W. 6. The accused was stunned and kept mum. P.W. 9 was then informed by P.W. 6 and the two panch witnesses that the money was kept in the file under the foot of the •ccused. P.W. 9 then took out the file and fonnd the sum o! Rs. 30/-in the file. The numbers of the currency notes were compared with the numbers earlier noted at the Anti-Corruption office. Thereafter, :F P.W. 9 sent the nid report. On receipt of it, P.W. 7, Deputy Super-intendent of Police took over the investigation. After completing the investigation, char!;e-sheet was laid and the accused was duly tried, convicted and sentenced as aforesaid. Tho defence of the accused was that P.W. 6 met him on 1 i'th: July, 1969 and wanted to make ~ome corrections. He tdd him thot he sl1ould file the original sale deed. P. W. 6 then said that he would come on Monday with the original sale deed. On 14th July 1969, P.W. 6 came to his office and wanted the file for making the necessary corrections. He too1c out the file and gave it to P.W. 6. P.W. 6 tnok the file to another table and brought it hack to him after 2 or 3 u minutc~s. According to the accused, P.W. 6 must have put the morey into the file when he had taken the file to the other table. When the Police Officer came in and questioned him about the receipt of the

bribe Im straight-away told him that he had not taken any money from P.W. 6. According to the accused, P.W. 6 was annoyed with him on 11th July, 1969, as he thought that he (accused) was delaying his work. He also stated that Mr. Batla the owner of the plot had threatened him with dire consequences because he had raised objec-tions to the plans submitted by him.

Both the Panch witnes~es examined by the prosecution did not fully support the prosecution case. They resi!ed from the earlier state-ment made by them during the course of investigation. P.W. 1 stated that when P.W. 6 went into the room where the accused was working there was some talk between P.W. 6 and the accused but he did not hear what it was. He saw the accused taking out the file from the Almirah and giving it to P.W. 6. P.W. 6 took it to another table and was writing something in the file. Then he took back the file to the accused. The accused was busy with his own work. The complainant placed three ten Rupee notes in the file and handed over the file to the accused who placed it under the table near his feet. P.W.6 signalled to him and he gave the agree<! signal. The Inspector then entered the room and questioned the accused about the receipt of the bribe. The accused denied the charge. He (P.W.1) then informed the Inspector that the money was in the file. The money was recovered from the file. The prosecution was permitted to cross-examine him. In cross-examination his earlier statements to the Investigating Officer were put to him. He admitted in cross-examination that when qnestio;ned by the Inspt;ctor the accus-ed kept silent for some time as .he was perplexed but thereafter told the Inspector that he had not taken any money. The evidence of the other witness P.W. 2 was on the same lines as P.W. 1 except that he stated that when questioned by the Inspector the accused kept mum and was perplexed. P.W. 2 was also cross-examined by the prosecu-tion and the statements made by him to the Investigating Officer were put to hhn.

Shri Frank Anthony learned Counsel for the appellant submitted that the conviction was based on the uncorroborated testimony of P.W. 6 and that it should, therefore, be quashed. He urged that Batla. Ad-vocate who had employed P.W.6 as an Architect had been convicted in Criminal case and that the present complaint was inspired by Batla who had previously threatened the accused with direct conse-quences. He pointed out that P.Ws. 1 and 2 stated in their evidence that Batla was actually present in the Anti-Corruption office when they were called there by the Inspector. He invited our attention to the .circumstance that some persons were standing near the table of the accu~d at the time when the bribe was supposed to have been give11.

and argued that it was most nnlikely that the accnsed wonld have de-manded and accepted the bribe when so many people were nearby. Tue learned Counsel further urged that the evidence of P.W.6 that he went to the office of the D.D.A. at 3 or 3.15 p.m. on 11th July, 1969 could not be true as the noting on the file showed that the file WllS received at 4.45, p.m. It was also contended that the lower Courts had erred in law in relying upon the statements made by P.Ws. 1 and 2 to the Police. It waB argued that the evidence of P.Ws. 1 and 2 rendered the evidence of P.W.6 entirely unacceptable. It was further contended that the lower Courts were wrong in treating the conduct of the accused when questioned by the Police Officer as circumstance against him.

We are unable to agree with the submission of Shri Anthony that no conviction can ever be based on the uncorroborated testimony of person in the position of P.W.6 who, for the sake of felicity may be described as "trap witness'. That trap witness may perhaps be considered as person interested in the success of the trap may entitle Court to view his evidence as that of an interested witness. Where the circumstances justify it, Court may refuse to act upon the uncor-roborated testimony of trap witness. On the other hand Court may well be justified in acting upon the uncorroborated testimdny of trap witness if the Court is satisfied from the facts and circumstances of the case that the witness is witness of truth. Shri Anthony referred us to the decisions of this Court in Ram Prakash Arora v. The State of Punjab,(') and Darshan Lal v. The Delhi Administration.(') In the first case Grover, J., observed as follows :

"It must be remembered that both Joginder Singh and Dalbir Singh ·P.Ws. were interested and partisan witnesses. They were concerned in the success of the trap and their evi-F dence must be tested in the same way as that of any •)!her interested witness and 111 3. proper case the court may look for independent corroboration before convicting the accused person". All that Grover J., said was that in an appropriate case corroboration may be sought and not that corroboration should invariably be sought. In the particular case it was found that the witnesses could not be im-plicitly relied upon and, therefore, corroboration was necessary. In the second case string of circumstances was noticed which made it necessary that evidence of the witnesses who had laid the trap should not be acted upon without independent corroboration. Thi~

(I) A.1.R, I 973 S.C. 498. (2) A.I. R. I 974 S .C. 218.

/" .,.,

decision also does not lay down that the uncorroborated testimony of trap witness can never be acted upo'n. That the law did not requirg any such corroboration was laid down in The State of Bihar v. Basawan Singh(!), and Bhanuprasad Hariprasad -Dave and Anr. v. The State of GujNat('). In Bhanuprasad's case it was observed by Hegde J., as follows : (at p. 1326) :

"Now coming back to the contention that the appellants could not have been convicted solely on the basis of the evi-dence of Ramanlal and the police witnesses. we are of opi-nion that it is an untenable contention. The utmost that can be said against Ramanlal, the Dy. S.P., Erulker and Santramji is that they are partisan witnesses as they were interested in the success of the trap laid by them. It cannot be said-and it was not said-that they were accomplices. Therefore, the law does not require that their evidence should be cor-roborated before being accepted as sufficient to found con-viction".We have carefully gone through the evidence of P.W. 6. After perusing the evidence of P.W. 6 we are left with the impression that P.W. 6 is truthful witness, an impression which we share with the High Court, the final Court of fact. He has given evidence in straight forward manner and was unshaken in cross-examination. We are unable to discover any reason to discredit his testimony. The suggestion which was made to him was that he was aggrieved with the accused llS he thought that he was unnecessarily raising objec-tions, that he had hot altercation with him and that he went to the Anti-Corruption office with the help of Shri Batla. The sugge>tions arc without substance. P.Ws. 1 and 2 no doubt stated that Shri Batla was present in the Anti-Corruption office when they were called there by P.W. 9, the Inspector. We do not have the slightest doubt that P.Ws. 1 and 2 are not truthful witnesses and that they have given evidence in order to accommodate the accused-Their evid-ence on important particulars was contradicted by their earlier state-ments to the Police. Here we may refer to the grievance of Shri Anthony that the Trial Judge< and th~ High Court treated the state-ments made by P.Ws. 1 and 2 to the Police as substantive evidence. There i• no justification for the grievance. The witnesses, who were treated as hostile by the Prosecution were confronted with their ear-lier statements to the Police and their evidence was rejected as it was contradicated by their earlier statements. Such use of the statements

(I) A.I.R. 1958 S.C. 500.

(2) A.I.R. 1968 S.C. 1323.

is premissible under s. 155 of the Evidence Act and the proviso to S. 162(1) of the Code of Criminal Procedure read with S. 145, Evid-ence Act.

Corroboration to the evidence of P.W. 6, if consider~d necessary, may be found in the following circumstances : First, his evidence is corroborated by the report Exh. PW. 1/ which he gave to P.W. 9 that day. Second, his evidence is corroborated by the conduct of the accused when he was questioued by P.W. 9. P.W. 6 stated that: when P.W. 9 ei.tered the room and questioned the accused whether he had accepted Rs. 30/- from him, the accused was stunned and did not reply. P.W. 9 also stated that the accused kept mum when challen-c ged. P.W. 2 stated that the accused did not reply aud kept mum but added that the accused was perplexed. Though P.W. i f,,,t 'lated i!l his chief examination that the accused, when questioned denied having received any bribe, later he ·reluctantly admitted in cross-cxamination that the accused kept silent for some time as he was perplexed and then denied that he had received any bribe. The im-I> mediate reaction of the accused on being questioned by P.W. 9 is circumstance which corroborates the testimony of P.Yi. 6. Another circumstance which corroborates the testimony of P.W. 6 is ;hat th• accused was ready with the file and handed it over to P.W. 6 as soon as he asked for it, indicating thereby that the •tatement ol P.W. 6 that the accused had asked him to come on the afternoon of 14th July, 1969, wai; true. Yet another important circumstance which cor-roborates the evidence of P.W. 6 is that after P.W. 6 handed over the file to the accused he kept it under the table.It was contended by the learned Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by Section 162 Crirru-nal Procedure Code. He relied on decision of the Andhra Pradesh High Court in D. V. Narasimhan v. State.(') We do not agree with the submissions of Shri Anthony. There is clear distinction bet-ween the conduct of ai person against whom an offence is cilleged, which is admissible under Section: 8 of the Evidence Act, if such con-G duct is influenced by any fact in issue or releyant fact and the state-ment made to Police Officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure' Code is the statement made to Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to statement) when confronted or questioned by Police officer duri11.g (1) A.l.R. 1969 A.P. 271.

the coune of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found ltidden, woufd be admissible as conduct, under Section 8 of th~ Evid-ence Act, irrespective of whether any statement by the accused con-iemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act [vide Himachal Pradesh Administration v. Om Prakash(').]

The deci~ion of the Andhra Pradesh High Court on which Shr: Anthony placed reliance does not support his contention. There the learned Judges were not prepared to go into the question whether the evidence relating to the conduct of the accused was admissible as that question did not directly arise for consideration. On the other hand in Zwinglee Ariel v. State of Madhya Pradesh('), this Court appear-ed to be inclined to hold that ev;dencc to the effect that the accused started trembling and showed signs of being frightened on being ques-tioned by the Police officer, if proved, was admissible, and, in Rao Shiv Bahadur Singh and Anr. v. State of Vindhya Pradesh('), and, State of Madras v. A. Vaidyanatha Iyer('), this Coun actually relied on evidence relating to the conduct of the accused on being confront-ed by the Police officer with the allegation that he had received bribe. In Rao Shiv Bahadur Singh' s case the evidence relating to conduct on which reliance was placed was to the effect that tl1e accu-sed was confused and could furnish no explanation when questioned by the Police officer. In Vaidyanatha lyer's case also evidence to the effect that the accused was seen trembling and that he silently produced the notes from the folds of his dhoti was acted upon. We, therefore, do not see any reason to rule out the evidence relating to the conduct of the accused, which lends circumstantial as!urance to the testimony of P.W. 6.

On consideration of the entire evidence we are satisfied that the appe!Jant was rightly convicted. The other points mentioned by Shri Anthony are of minor character and do not warrant any inter-ference under Article 136 of the Constitution. The appeal is accord-ingly dismissed.

Appeal dismissed.

(1) A.l.R. 1972 S.C. 975. (2) A.LR. 1954 S.C. 15. (3) A.LR. 1954 S.C. 322. (4) A.I.R. 1958 S.C. 61.