N Criminal Appeal No 211 of 1974
Appeal by special leave from the Judgment and order dated 19 4 1974 of the Delhi High Court in Crl
A No 18672
Frank Anthony section K Dholakia and R C Bhatia for the Appellant
H section Marwah and R N Sachthey for the Respondent
The Judgment of the Court was delivered by CHINNAPPA REDDY J
The appellant Hazari Lal was convicted by the learned Special Judge Delhi of offences under section 52 read with section 51 d of the Prevention of Corruption Act 1947 and Section 161 of the Indian Penal Code
On the first count he was sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs 500
On the second count he was sentenced to suffer rigorous imprisonment for a period of two years
The two sentences were directed to run concurrently
The convictions and sentences were confirmed by the High Court of Delhi
1056 The case which the prosecution set out to prove before the Trial Judge was briefly as follows The scooter rickshaw belonging to Sri Ram PW3 and driven by his driver Ram Lubhaya PW 6 was involved in an accident on July 12 1969
The scooter rickshaw and a tonga which were involved in the accident were taken to the Police Station Kashmere Gate by the accused a Police constable attached to that station
PW 3 obtained orders from the Magistrate for the release of his vehicle and went to the Police Station to obtain delivery of the vehicle
The accused who was present took him outside and told him that the vehicle would be given to him only if he paid a bribe of Rs 60
PW 3 then went away
He went to the Anti Corruption Department and made statement to Inspector Paras Nath PW 8
After recording the statement of PW 3 PW 8 sent for two persons Davinder Kumar PW 4 and Kewal Krishan
The statement of PW 3 was read out to PW 3 in the presence of the two Panch witnesses Davinder Kumar and Kewal Krishan
PW 3 then produced six currency notes of the value of Rs 10 each
The numbers of the notes were noted and they were treated with phenol phthelene powder
After the usual instructions were given to PW 3 and the panch witnesses the raiding party proceeded towards Kashmere Gate
PW 3 PW 6 and Kewal Krishan went into the Police Station while PW 8 and others stayed outside
The money was handed over to the accused who took it and put it inside the right hand pocket of his trousers
PW 6 and Kewal Krishan then came out and signalled to PW 8 whereupon PW 8 and the Panch witnesses went inside the Police Station
The accused was present inside
As soon as he saw the party led by PW 8 he took out the currency notes from the right side pocket of his trousers and threw them across the wall into the adjoining room
PW 8 instructed some of the police officers accompanying him to rush to the adjoining room and to keep a watch over the notes which must have fallen there
He then introduced himself to the accused and took him to the adjoining room
Some of the notes were lying on the table of the Duty Officer in that room while others had fallen on the ground near the chair of the Duty officer
The six notes were collected in the presence of the witnesses and their numbers were compared with the numbers noted before they proceeded on the raid
The numbers tallied
The accused was questioned by the Inspector and he denied that he had demanded any bribe and kept silent about the acceptance of the bribe
Both the hands of the accused were dipped in sodium carbonate solution and the solution which was previously colourless turned pink
The same test was repeated 1057 with the handkerchief which was taken out of the right hand side pocket of the accused and also with the trousers of the accused
Each test resulted in the bicarbonate solution turning pink
After completion of the investigation a charge sheet was laid against the accused being for offences under section 52 read with section 51 d of the Prevention of Corruption Act and section 161 of the Indian Penal Code
All that has been mentioned in the previous paragraph was what the prosecution set out to prove before the Trial Court
But many of the witnesses turned volte face
PW 3 stated in his evidence that on the first occasion when he went to the Police Station to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar
It was the Hawaldar and not the accused that demanded the bribe of Rs 60 from him
According to him at the time of the raid when he PW 6 and Kewal Krishan went inside the Police Station they found the accused there and asked him to take the sum of Rs 60 and return the scooter rickshaw
PW 3 stretched his hand with the money towards the pocket of the accused s trousers but the accused said the money might be paid to the person for whom it was meant
He refused to receive the money and jerked PW 3 s hand with his hand as a result of which the notes came to be flung across the wall into the neighbouring room
He told the Inspector that the notes had been flung across the wall and that the accused had neither demanded the amount from him nor accepted the money from him
On the other hand the accused had refused to take the money from him
The Inspector recovered the notes from the neighbouring room placed them on the table and thereafter subjected the handkerchief and the pocket of the accused s trousers to the phenol phthelene test
The implication of this part of the evidence was that it was as a result of the handling of these articles by the Inspector that they came to have phenol phthelene powder and that was the reason why the solution turned pink
PW3 was treated as hostile and cross examined by the prosecution with reference to the earlier statements made by him
PW 6 followed suit and he too was declared hostile and cross examined by the prosecution with reference to his earlier statements
Of the two panch witnesses Kewal Krishan was not examined as he had become mentally deranged before the trial of the case
Davinder Kumar was examined as PW 4
This witness supported the prosecution case in some particulars but in regard to other particulars he made statements contrary to his earlier statements
He was also treated as hostile and cross examined by the prosecution
In substance his chief examination was to the affect that PW3 PW6 and 1058 Kewal Krishan went inside the Police Station while he stayed outside with the Inspector PW 8 PW3 PW6 and Kewal Krishan came out after sometime and stated that the accused had accepted the bribe
The raiding party then went inside
On seeing the Inspector the accused got suspicious and threw away the currency notes across the wall into the neighbouring room
In examination in chief he also stated that before they proceeded to the Police Station for the raid statement of both PW3 and PW6 had been recorded
He stated that after the bribe was given PW3 also came out and signalled to PW8 that the bribe had been given
Another statement made by him in chief examination was that he was unable to remember if the Inspector questioned the accused at the time of the raid
As these statements were contrary to his earlier statements he was cross examined by the prosecution
Paras Nath PW8 spoke to the complaint made to him by PW3
 the action that he took the raid etc
Regarding the actual raid he stated that PW3 PW6 and Kewal Krishan first went inside the Police Station
After sometime PW6 and Kewal Krishan came out and signalled that PW3 had passed the bribe money and that PW3 and the accused were in the room
When he went in the accused took out the notes from the right side pocket of his trousers and threw them across the wall into the adjoining room
He then spoke to the test made by him etc
On this evidence both the learned Sessions Judge and the High Court found the accused guilty of the two offences with which he was charged
Shri Frank Anthony learned counsel for the appellant submitted that the Courts below had made free use of the statements made by the witnesses in the course of the investigation as if such statements were substantive evidence
If those statements were excluded from consideration there would be no evidence of any demand or acceptance of bribe by the accused
All that the prosecution would be left with would be the evidence of the Inspector and PW4 to the effect that the accused took out the currency notes from the right side pocket of his trousers and flung them across the wall into the adjoining room
That evidence according to the learned counsel would not be sufficient even if accepted to draw the presumption under section 41 of the Prevention of Corruption Act
Reliance was placed upon the decision of this Court in Sita Ram vs The State of Rajasthan1 and Suraj Mal vs The State Delhi Administration 2
1059 The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation
Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made except for the purpose of contradicting the witness in the manner provided by s145 of the Indian Evidence Act
Where any part of such statement is so used any part thereof may also be used in the re examination of the witness for the limited purpose of explaining any matter referred to in his cross examination
The only other exceptions to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of section 321 of the Indian Evidence Act or permitted to be proved under section 27 of the Indian Evidence Act
S145 of the Evidence Act provides that a witness may be cross examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question without such writing being shown to him or being proved but that if it is intended to contradict him by the writing his attention must before the writing can be proved be called to those parts of it which are to be used for the purpose of contradicting him
The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation
Shri H section Marwah learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of proved in section 3 of the Evidence Act which is a fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought in the circumstances of the particular case to act upon the supposition that it exists
 We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters including statements whose use is statutorily barred
After excluding irrelevant material we are left with the evidence of PW8 and that of PW4 whose evidence corroborates that of PW8 in several material particulars
We however wish to say that the evidence of PW8 is entirely trustworthy and there is no need to seek any corroboration
We are not prepared to accept the submission of Shri Frank Anthony that the fact that he is the very Police Officer who laid the trap should be sufficient for us to insist upon 1060 corroboration
We do wish to say that there is no rule of prudence which has crystallized into a 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 be any precedential guidance
We are forced to say this because of late we have come across several judgments of Courts of Session and 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
While on this subject of appreciation of evidence we may also refer to an argument of Shri Frank Anthony based on the observations of a learned single judge in Kharaiti Lal vs The State1 that persons holding clerical posts and the like should not be called as panch witnesses as such witnesses could not really be called independent witnesses as they would always be under fear of disciplinary action if they did not support the prosecution case
We do not think we can accept the submission of Shri Frank Anthony
The respectability and the veracity of a witness is not necessarily dependent upon his status in life and we are not prepared to say that Clerks are less truthful and more amenable than their superior officers
From the evidence of PW8 and that of PW4 we may take the following facts as established PW3 made a report to PW8
He produced six currency notes of the denomination of ten rupees whose numbers were noted and which were treated with phenol phthelene powder
Thereafter the notes were handed over to PW3 PW3 PW6 and Kewal Krishan went inside the Police Station
After sometime PW6 and Kewal Krishan came out and gave a signal
PW8 then went inside the Police Station
On seeing him the accused who was inside the Police Station with PW3 took out some currency notes from the right side pocket of his trousers and threw them across the partition wall into the adjoining room
The notes which were so thrown out by the accused were found to be the same notes which had been treated with phenol phthelene and handed over to PW3 before the raid
The handkerchief which was taken out of the right side pocket of the trouser of the accused as well as the 1061 right side pocket itself were subjected to a test which showed that they too had come into contact with phenol phthelene powder
It may be noted that the circumstance that the handkerchief Ex
P 4 recovered from the right side pocket of the pant on the person of the accused was subjected to the colour test which indicated the presence of phenol phthelene powder on that handkerchief was put to the appellant in his examination under section 313 Criminal Procedure Code
Instead of giving any explanation as to how this phenol phthelene powder came on the handkerchief lying in his pocket the appellant replied
I know nothing about it
 From these facts the irresistible inference must follow in the absence of any explanation from the accused that currency notes were obtained by the accused from PW3
It is not necessary that the passing of money should be proved by direct evidence
It may also be proved by circumstantial evidence
The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW3
Under s114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events human conduct and public and private business in their relation to facts of the particular case
One of the illustrations to s114 of the Evidence Act is that the Court may presume that a person who is in possession of the stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession
So too in the facts and circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW3 who a few minutes earlier was shown to have been in possession of the notes
Once we arrive at the finding that the accused had obtained the money from PW3 the presumption under s41 of the Prevention of Corruption Act is immediately attracted
The presumption is of course rebuttable but in the present case there is no material to rebut the presumption
The accused was therefore rightly convicted by the Courts below
We will now refer to the two decisions of this Court on which Shri Frank Anthony relied
In Sita Ram vs The State of Rajasthan supra the evidence of the complainant was rejected and it was held that there was no evidence to establish that the accused had received any gratification from any person
On that finding the presumption under s41 of the Prevention of Corruption Act was not drawn
The question whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complainant 1062 was not considered
All that was taken as established was the recovery of certain money from the person of the accused and it was held that mere recovery of money was not enough to entitle the drawing of the presumption under s41 of the Prevention of Corruption Act
The Court did not consider the further question whether recovery of the money alongwith other circumstances could establish that the accused had obtained gratification from any person
In the present case we have found that the circumstances established by the prosecution entitled the Court to hold that the accused received the gratification from PW3
In Suraj Mal vs The State Delhi Administration supra also it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money
There can be no quarrel with that proposition but where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the Court would certainly be entitled to draw the presumption under s41 of the Prevention of Corruption Act
In our view both the decisions are of no avail to the appellant and as already observed by us conclusions of fact must be drawn on the facts of each case and not on the facts of other cases
In other words there can be no precedents on questions of facts
The appeal is therefore dismissed
PBR Appeal dismissed


Summary:
The accused appellant who was charged with offences under section 51 d of the Prevention of Corruption Act and section 161 of the Penal Code was convicted and sentenced by the Special Judge
The convictions and sentences were confirmed by the High Court
The prosecution alleged that the scooter rickshaw of the complainant driven by his driver was one day involved in a traffic accident and the vehicle was taken to the police station by the accused who was a police constable
The complainant obtained orders of the Magistrate for its release but the accused declined to release the vehicle unless he was paid a sum of Rs 60
The complainant was not prepared to pay the sum demanded
He then went to an Inspector of the Anti Corruption Department and lodged a complaint that the accused was demanding illegal gratification from him for the release of his scooter rickshaw which was ordered by the Magistrate to be released
The prosecution further alleged that the Inspector called two panch witnesses and after noting down the numbers of six ten rupee currency notes given by the complainant treated them with phenol phthalene powder and gave them to the complainant
It was arranged that the complainant should hand over the currency notes to the accused and should thereafter make a signal at which the Inspector and panch witnesses would enter the room
The complainant carried out the plan as arranged and gave the call on which the Inspector and panch witnesses entered the room of the accused
On seeing the Inspector the accused removed the currency notes from his pocket and flung them across the wall into the adjoining room
The notes were collected and when compared with the numbers noted earlier they tallied
The hands of the accused were then dipped in sodium bicarbonate solution which colourless earlier turned pink
Similarly the handkerchief in the right side pocket of the trousers of the accused was removed and also dipped in sodium bicarbonate solution
That too turned pink
Before the trial court many of the witnesses turned hostile and one of the panch witnesses became mentally deranged
In appeal it was contended before this Court that 1 the courts below had made free use of the statements made by the witnesses in the course of investigation as if they were substantive evidence and if they were excluded the rest of the evidence would not be sufficient to draw the presumption under 1054 section 41 of the Prevention of Corruption Act 2 the fact that the Inspector was the very police officer who laid the trap should be sufficient to insist on corroboration of his evidence
Dismissing the appeal  HELD 1a The courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation
1059E b Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a police officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made except for the purpose of contradicting the witnesses in the manner provided by section 145 of the Evidence Act
Where any part of such statement is so used any part thereof may also be used in the re examination of the witness for the limited purpose of explaining any matter referred to in his cross examination
The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of section 321 of the Evidence Act or permitted to be proved under section 27 of the Evidence Act
1059A C c The contention of the prosecution that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of proved in section 3 of the Evidence Act has no substance
The definition of the term proved does not enable a Court to take into consideration matters including statements whose use is statutorily barred
1059G 2a The evidence of the Inspector is entirely trustworthy and there is no need to seek any corroboration
1059H b There is no rule of prudence which has crystalized into a rule of law nor any rule of prudence which requires that the evidence of such police 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 be any precedential guidance
1060A B
In the instant case the proved facts were that the complainant made a report to the Inspector and currency notes whose numbers were noted and which were treated with phenol phthalene powder were handed over to the complainant
The complainant went into the accused s room and came out after a short while giving the agreed signal
When the Inspector rushed in the accused threw the currency notes across the wall into the adjoining room
His hands and the handkerchief when dipped in sodium bicarbonate solution turned pink and lastly instead of giving a plausible explanation as to how the phenol phthalene powder came to his hands and the handkerchief in his pocket all that he could say was that he knew nothing about it
From all these facts the only inference that follows is that currency notes were obtained by the accused from the complainant
It is not necessary that the passing of 1055 money should be proved by direct evidence it may also be proved by circumstantial evidence
The events which followed in quick succession in the present case led to the only inference that the money was obtained by the accused from the complainant
Under section 114 of the Evidence Act the Court may presume the existence of any fact which is likely to have happened regard being had to the common course of natural events human conduct and public and private business in their relation to facts of the particular case
One of the illustrations to this section is that the Court may presume that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession
So too in the facts and circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from the complainant who a few minutes earlier was shown to have been in possession of the notes
Once it is found that the accused had obtained the money from the complainant the presumption under section 4 1 of the Prevention of Corruption Act is immediately attracted
The presumption is rebuttable but in the present case there is no material to rebut the presumption
The accused was therefore rightly convicted by the courts below
1061D F Sita Ram vs The State of Rajasthan AIR 1975 SC 1432 Suraj Mal vs The State Delhi Administration AIR 1979 SC 1408 held inapplicable
There is no force in the contention that persons holding clerical posts could not be called independent witnesses on the ground that they would be under fear of disciplinary action if they did not support the prosecution case
The respectability and verasity of a witness is not necessarily dependent upon his status in life and it cannot be said that clerks are less truthful and amenable than superior officers
1060E