Date: 21 January 2015 

 

Composition of the Bench: Division bench of Hon’ble Justice Deepak Misra and Hon’ble Justice R.F. Nariman. 

Facts in Brief: 

The complainant Baj Singh complained to the DSP Vigilance against a corrupt Octroi Inspector who allegedly demanded ₹500 per month. 

An elaborate plan was thus laid to catch the inspector red handed. 

On 25.1.1995, the DSP along with a raid party were sent to the octroi post and he stopped at some distance.

A glass of water was procured and sodium was added to it. Both the hands of the accused were dipped in the glass of water and the water turned pink, since the notes had been smeared with phenolphthalein prior to being given as bribe. 

On search of the accused Rs.500/- in the denomination of Rs.100/- were recovered from right side pant pocket of the accused. After making the arrangement for the pant of the accused, the right side pocket of the pant of the accused was dipped in the mixture of water and sodium and its colour turned light pink. It was also transferred into a quarter bottle which was duly sealed and was taken into possession vide recovery memo as was the sample of water in which the hands of the accused were dipped. 

During the course of trial, 8 witnesses were examined. Out of which-

PW-1 to PW-4 were formal witnesses 

PW-5 was the complainant. He resiled from his statements. 

PW-6 had joined the  raid party as an independent witness. 

PW-7 was a shadow witness and had resiled from his examination-in-chief. 

PW-8 was the DSP Vigilance who also led the raiding party on 25/01/95. 

Issues 

Issue 1: Whether trap witness is an interested witness and whether their testimony is admissible in Court. 

The Court, in the instant case, opined that a trap witness is indeed an interested witness and for their testimony to be accepted and relied upon, requires corroboration. 

The quantum of corroboration depends upon the facts and circumstances of the case, nature of the crime and the character of the trap witness. 

The Court placed reliance on the following judgements-

In Basawan Singh, a constitutional brnch observed- 

There is no invariable rule that the evidence of the witness of the raiding party must be discarded in the absence of any independent corroboration. 

However, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse consideration 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. 

In Major E.G. Barsey, the Court opined that the evidence of a trap witness, can at least be equated with a partisan witness and it would not be admissible to rely upon his evidence without corroboration, but his evidence is not a tainted one.

In Bhanupratap Hariprasad Dave, a full bench opined as regards to 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 cases look for corroboration.

Issue 2: Whether corroboration is necessary and if so to what extent and what should be its nature?

The Court opined the necessity and quantum of corroboration depends upon the facts and circumstances of each case. 

In a case of bribery, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe

Issue 3: Whether the investigation, and consequently, the entire trial is vitiated  on account of PW-8 being an interested witness. 

In the present case the Court noted that nothing had been posited to elicit that PW-8 was in anyway personally interested to get the appellant convicted. The Court opined that the decision tendered in the case of S. Jeevanatham would be squarely applicable to the present case and, accordingly, PW-8’s testimony and evidence was held to be admissible. 

The learned Court had based the decision on the following cases-  

State v. V. Jayapaul 

(In the said case, the HC had quashed the criminal proceedings on account of the fact that the police officer, who had lodged the FIR regarding the suspected commission of certain cognizable offence by the respondent investigated the case himself.)

The SC opined in that the question of bias would depend on the facts and circumstances of each case and it is improper to lay down a broad and unqualified proposition, in the manner in which it has been done by the HC, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased.

In S.Jeevanatham V. State (through Inspector of Police, T.N.)

The officer, who lodged the FIR had himself conducted the investigation and hence, the entire investigation was argued to be vitiated. The Court referred to the decision in Jayapaul and opined thus:

“The officer was not in any way personally interested in the case. We are unable to find any sort of bias in the process of investigation”

Issue 4: Whether testimony of a hostile witness (PW-7) that has come on record should be relied upon or not. 

The Court after referring to the authorities in Bhagwan Singh, opined that the evidence of such a witness cannot be effaced or washed off the record altogether, and the same can be accepted to the extent it is found to be dependable on a careful scrutiny of the facts of the case. 

 M. Narsinga Rao v. State of A.P 

In the said case, the accused- appellant had been arraigned on charges of corruption. But before handing over the money to him the plaintiff lodged a complaint with DSP of Anti-Corruption Bureau. 

On the basis of the said complaint all arrangements were made for a trap to catch the corrupt public servant red-handed. 

But, in the trial court, the complainant backtracked from his complaint and denied having paid any bribe to the appellant. He also denied that the appellant demanded the bribe amount. 

He furthermore averred that one Dr. Krishna Rao bore grudge and had orchestrated a false trap against the accused by employing the complainant. 

It was further the stand of the accused-appellant that the tainted currency notes were forcibly stuffed into his pocket.

 The trial court and the High Court had disbelieved the defence evidence and found that the complainant was won over by the appellant and that is why  turned hostile against his own complaint recorded by the investigating officer and subsequently by a Magistrate under Section 164 of CrPC. 

The witnesses were ordered to be prosecuted for perjury.  The High Court upheld the order. 

The High Court had observed that though there was no direct evidence to show that the accused had demanded and accepted the money, yet the rest of the evidence and the circumstances were sufficient to establish that the accused had accepted the amount and giving rise to a presumption under Section 20 of the Prevention of Corruption Act that the accused had accepted the same as illegal gratification.

Issue 5: Whether presumption under Section 20 of the Act could be drawn solely on evidence of recovery of tainted currency. 

It was cavilled by the counsel for the appellant in the instant case that 

it was incumbent on the part of the prosecution to further prove that what was paid amounted to gratification. 

Furthermore, the counsel for appellant contended that PW-6 had not witnessed either the demand or acceptance of the bribe by the appellant.  

However, a perusal of the testimony make it evident that PW-6 witnessed the demand, acceptance and recovery of money.

(He has further stated that he and PW5, Baj Singh, went inside the octroi post where Vinod Kumar demanded bribe from Baj Singh whereupon Baj Singh gave Rs.500/- to him, and at that juncture, he gave the signal to the vigilance party to come inside where after and they came and apprehended the accused).

Thus, the claim of the appellant that the entire case of prosecution is mounted solely on evidence of recovery is not tenable. 

Issue 6: Whether the entire case would collapse on account of the complainant (PW5) turning hostile. 

The Court held that the complainant turning hostile would not lead to the collapse of the entirety of prosecution’s case. 

In response to B. Jayaraj and  M.R. Purushotham v. State of Karnataka being quoted by the counsel to contend that a complainant turning hostile leads to collapse of the entire case, the Court opined that on an attentive and cautious reading of the aforesaid decisions it is noticeable that the court disbelieved the story of the prosecution as no other evidence was brought on record.

Furthermore the Court observed that the two cases do not lay down as a proposition of law that when the complainant turns hostile and does not support the case of the prosecution, the prosecution cannot prove its case otherwise and the court cannot legitimately draw the presumption under Section 20 of the Act.

Issue 7: Laxity by the Trial Court Judge in granting Adjournments. 

Perhaps the salience of this judgement is the strong exception that was taken to the nonchalance shown by by trial court Judge in granting adjournments “at the drop of a hat”.  

The learned judges strongly admonished the malady of dilatory litigation to needlessly stretch the length of the litigation, thus, either tiring our the witnesses or buying them in the due course of time employing duress and coercion.  

As a remedy, it was posited that  if the examination-in- chief is over, the cross-examination should be completed on the same day. 

Cross-examination should be deferred for such a long time was in the Court’s opinion “inconceivable in law” and an anathema to the concept of proper and fair trial. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded

Ratio Decidendi 

The Court held that the factum of presumption and the testimony of PW6 and 7 go a long way to show that the prosecution has been able to prove demand, acceptance and recovery of the amount. 

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 the accused was charged.

The decisions of the High Court and the trial court were thus upheld.