N Criminal Appeal No 209 of 1971
Appeal by special leave from the judgement and order dated the 19th January 1971 of the Delhi High Court at New Delhi in Criminal Appeal No 71 of 1970
Frank Anthony K B Rohtagi and V K Jain for the appellant
section N Anand and R N Sachthey for the respondent
The Judgment of the Court was delivered by Goswami J
The complainant Shiv Darshan Nath PW 1 was an unlicensed hawker selling oranges and fruits in what is described as a chabba  around Novelty Cinema area in Delhi
The locality is within the jurisdiction of the Lahori Gate Police Station
C The accused Maha Singh was enrolled as a Constable in the Delhi Police in July 1957 and was promoted as Head Constable Havaldar in August 1963
He was posted to the Lahori Gate Police Station on November 21 1967 and had since been serving there in that capacity until his suspension in connection with the present case
During April 1969 the accused was deputed for prosecuting unauthorised squatters and persons indulging in petty offences within the area of the said Police Station
The accused in performance of these duties was required to and did maintain a petty offences Register and he had to do pervi of these cases challenged by him in the court
 The complainant approached the Anti Corruption Inspector Delhi Bal Krishan PW 7 on April 7 1969 at about 1100 am and made a complaint to him
This complaint was recorded by the Inspector PW1A
The material allegations disclosed therein were 
Now for some days a new Havaldar of PS Lahori Gate has been coming there for challaning under  section 33 Bombay Police Act and he has been harassing people unlawfully
He has challaned me also a number of times
He drew up one challan against me on 3 4 69 which stands fixed for hearing on 8 4 69 in the Court of Shri O P Yadav SDM
This Havaldar says that he will not put up this challan in case I pay him Rs 10  and that in case I give him Rs 50 pm
I will not be challaned in future
I am poor man and unable to meet his said desire
On 5 4 69 the Havaldar aforesaid came to me and said that he would come again on 7 5 69 about 300 pm and that in case rupees ten were not paid the challan would be put in Court
Since the Havaldar of Lahori Gate Police Station has demanded Rs 10 from me as bribe I have come for report
Suitable action may be taken 
The words against me in parentheses in the above extract are not to be found in the original statement recorded in the Urdu language
his has to be mentioned as Mr Frank Anthony appearing on behalf of the accused strenuously submitted that since there had been 122 no challan against the complainant the entire edifice of the case was destroyed
We felt some doubt about the translation in the paper book and therefore looked into the original document and we are satisfied that the words against me are not to be found therein
Now following the sequence the Inspector decided to arrange a raid and summoned two witnesses from the Deputy Commissioner s J office PWs 3 and 4 and recorded in a raid memo the number of the d only ten rupee note P 1 which the complainant had with him
The Inspector proceeded to state that The said GC note was later returned to the complainant with a direction to pass it on to the accused within the sight of the panch witnesses having such talk with the accused as to indicate the said GC note had been passed on to the accused by way of bribe
Both the panch witnesses were also instructed to remain close to the complainant and the accused hear their talk see the passing of the bribe money and on ascertaining that the same had been passed to the accused by way of bribe Ved Prakash was further instructed to give the agreed signal
The Inspector and the party with the complainant were in the area of the Novelty Cinema from about 210 pm
The accused was not to be seen in the area till 545 pm when however he was located in plain clothes in a three wheeler scooter sitting in the rear seat with Babu Ram PW 6 a constable of the Lahori Gate Police Station on duty in uniform
In addition to the complainant Sohan Singh PW 3 stated that   somebody came and called the complainant
He took him along with him
 This has to be particularly noted as the High Court put great reliance upon this piece of evidence of PW 3 as will be noticed later
The complainant approaching the accused sat in the driver s seat inside the scooter
According to the complainant The accused then asked me that if I had to get the challan cancelled I should pay Rs 10 and that if further challan were not desired a sum of Rs 50 on my behalf and on behalf of my brother should be paid to him
I handed over Rs 10 GC note P l and the challan P 2 to the accused
The accused put these in his front pocket of r the shirt
 As arranged the signal was given to the Inspector by PW 4 Ved Parkash and the Inspector and the party who were at an eye shot reached the place immediately
The Inspector recovered the GC note P 1 from the pocket of the accused s shirt and comparing the number of the GC note found it to tally with the one already recorded by him
On further search of the person of the accused a sum or Rs Sl alongwith carbon copies of two challans were also recovered
According to the Inspector when challenged by him the accused 123 replied that he had taken a ten rupee GC note which he had put in A the front pocket of his shirt
On his search one GC note of Rs 10 was recovered from the front pocket of his shirt and fater comparing its number with the raid report which was found to tally and it was taken into possession vide memo
PW lC Besides the two challans P 2 and P 3 and a sum of Rs 51 were also recovered and were taken into possession vide memo PW lD
Although PWs 3 and 4 were requisitioned for help in the arranged raid as stated above they did not come upto full expectations
According to PW3 I heard no talk between the complainant and the accused nor could I see the passing of the money
He stated that he was standing at quite a distance whereas Ved Parkash was nearer to the scooter
He also stated that on the accused being challenged by the Inspector if he had taken the bribe money the accused replied that he had taken one challan purchee  P 2 and one GC note P l of Rs 10  and on being searched GC note exhibit P l was recovered from the front pocket of the shirt of the accused which he was wearing He further stated that from the personal search of the accused 51 currency notes and two challan purchees P 2 and P 3 were also recovered and the same were taken into possession vide memo PW1D
PW 4 on the other hand stated that the complainant handed over a ten rupee GC note major portion of which was wrapped in a white paper to the accused Maha Singh present in court and told the accused that my challan may be got corrected mera challan theek kara dena
The accused took the GC note with the white paper and put the same in his front shirt pocket
I gave the signal
Inspector Bal Krishan reached the spot
He disclosed his identity and secured the accused
I told the Inspector that GC note has been put by the accused in his shirt pocket
The same was recovered by Inspector Bal Krishan vide memo PW 1C Two challans P 2 and p P 3 were also recovered besides Rs 51 from the accused vide memo PW 1D
PW 4 however stated that the accused denied having taken any bribe when challenged by Inspector Bal Krishan
 It may be mentioned here that P 2 is the challan relating to the complainant s brother Charan Dass
It appears from P 2 that the case against Charan Dass was fixed in the court of Shri O P Yadav Sub Divisional Magistrate on April 8 1969
P 3 related to Mangal Sain DW 5 showing that he was to attend his case in the same court on the same date April 8 1969
Both the cases were under section 3313131 Bombay Police Act obstruction of public passage and P 2 and P 3 are personal recognizance bonds
The case was investigated by the Anti Corruption Department and the charge sheet was submitted after obtaining sanction from the Superintendent of Police North District Delhi PW 5
124 The accused stands charged under section 161 IPC and section 52 read with section 51d of the Prevention of Corruption Act briefly the Act
His defence is that the case was concocted against him by the complainant and the money was planted in his pocket as he had casually told him also not to obstruct the public way once earlier He further stated in his examination under section 342 Code of Criminal Procedure in fact the complainant hastened to put something in the challan in my pocket against my wishes and I was trying to know what it was about when I was surrounded by the Inspector
I told the Inspector also that I had not done anything and might not be harassed unnecessarily
From the above the version of the prosecution and that of the accused are clear
While according to the prosecution the accused had earlier negotiated for a bribe and later on accepted the same from the complainant according to the accused he had made no negotiation with the complainant nor did he voluntarily accept any money from the complainant
On the other hand the complainant planted the currency note of Rs 10 in to his pocket against his wishes when he was all of a sudden surrounded by the Inspector and the raiding party
The trial court accepted the prosecution case and convicted the accused under both the sections and sentenced him to rigorous imprisonment for one year on both the counts running concurrently and to a fine of Rs 100 in addition in default one month s imprisonment
The High Court affirmed the conviction and the sentence
Hence this appeal by special leave
Mr Frank Anthony submitted that since the prosecution failed to establish that there was any case instituted by the accused against the complainant which might furnish an occasion for offering a bribe the entire story of the complainant should stand discredited
He also submitted that the complainant s brother Charan Dass was not even examined by the police nor in the court
Mangal Sain was not examined by the prosecution but had been examined by the accused
He further emphasised that the story of the complainant with regard to the negotiation for the bribe stood on his solitary uncorroborated testimony and he was not such an absolutely independent witness whose testimony was worthy of credit for the purpose of basing a conviction
Counsel further emphasised that while the prosecution sought to prove that the accused voluntarily accepted the bribe and himself put the currency note in his pocket this story did not find corroboration from any independent source
PW 3 of course does not state about the passing of the money nor about any conversation
PW 4 however supported the complaint in his examination in chief although he added that the accused denied having taken any bribe when challenged by Inspector Bal Krishan
In the course of his cross examination however he stated that he did not hear the talk between the complainant and the accused Constable Babu Ram PW 6 who was sitting with the accused in the scooter deposed that his attention was more towards 125 the road than towards the complainant and the accused
He completely threw overboard the complainant s version and stated I saw the complainant Shiv Darshan Nath putting a purchee with a note in the pocket of the accused He further stated that I did not hear the accused telling the Inspector that he had taken no bribe and should not be harassed The High Court accepted the version of the complainant and found that the prosecution case stood established beyond any doubt
The learned Judge observed To me it appears an admission that the appellant allow ed PW 1 to put something in his pocket
If that was against his wishes he should have thrown it out
The High Court also accepted the testimony of PW 3 corroborating the complainant in that a person had called PW 1 to the scooter where the accused was sitting
From this the High Court concluded Why at all was PW 1 sent for if there were no prior negotiations and if the accused was not sure that in fulfillment thereof he will be receiving the money from PW 1
Nothing has been elicited against PW 3 as to why he should be disbelieved
He has not gone to the entire length of supporting every detail of the prosecution case
It is therefore not possible to hold that the High Court was absolutely wrong in accepting his statement that the complainant had been sent for by the accused to the scooter through some persons who could not be later identified for the purpose of examination in court
It was not possible in such a situation to recognise and locate the messenger
E The trial court does not seem to have relied upon the evidence of PW 4
From the evidence of the defence witnesses DWs 1 2 3 4 and 7 it is clear that the witness is not an independent person nor a very reliable one
There was a case against him under section 161 IPC and section 52 of the Act
His services were terminated for massing of certain records although he was later on re employed in July 1968
He was a raid witness for the police in several anti corruption cases
The High Court also has not relied upon his evidence
In view of the defence of the accused which is supported by PW 4 PW6 DW5 and DW6 with regard to the fact of the complainant putting the currency note wrapped inside purchee  P 2 into the pocket of the accused the recovery of the note by the Inspector from the  accused s pocket is absolutely inconsequential says Mr Frank Anthony
There are however more things than meet the eye
There were two persons DW 5 Mangal Sain and Charan Dass complainant s brother who has been sent up by the accused on April 3 1969 under the Bombay Police Act for prosecution in Court
It is understandable that while performing these duties policeman may clash with H the shopkeepers
There is also equal possibility of patching up with concerned offenders
In this situation it is extremely important for 126 the court to find by unerring and cogent evidence whether the accused had committed the offence
In our view there is a clinching factor
If the accused s version is true the recovery of the note would have been inside purchee  P 2 since the accused and his four supporting witnesses had deposed to that effect
If this version is even prima facie reliable the accused will be entitled to the benefit of doubt
We are however unable to hold so
The seizure memo PW lC aboutwhich there has been no cross examination shows that a currency note of Rs 10 bearing number C 67 090721 was recovered from the left side front pocket of the shirt worn by the accused
There is nothing to show that this currency not was recovered from his pocket being wrapped inside the particular Purchee  or for the matter of that inside another white paper
This fact of recovery is proved by the Police Inspector as well as by PW3 and the complainant who had signed the memo
Even Ved Prakash PW 4 had signed this memo
Similarly we have the seizure memo
PW ld which is prepared by the Inspector and signed by the complainant and PWs 3 and 4
This seizure memo shows that the currency notes of Rs 51  a carbon copy of challan of Charan Dass P 2 and another carbon copy of challan of Mangal Sain P 3 admittedly received by the accused a short while ago were recovered from the left side front pocket of the shirt
From the above it is clear that the defence story of the complainant giving a ten rupee note wrapped inside the purchee  relating to Charan Dass is absolutely false
If as stated by the accused the Inspector arrived immediately after the money was put inside his pocket namely wrapped inside a purchee  the seizure memo PW 1C would have shown the recovery in that state
We do not find it to be so
The evidence of the complainant is corroborated by the Inspector and PW 3 and also corroborated by the documentary evidence PW 1c coupled with the manner of the recovery of the note
When we find such a conclusive proof with regard to this part of the case deficiency of evidence of corroboration with regard to the negotiation of the accused with the complainant pales into insignificance
Further one of the witnesses who deposed with regard to the recovery of the note as per PW lC was cross examined to the effect that the note was recovered wrapped in the purchee  P 2
Even the evidence of PW4 PW 6 DW5 and DW 6 called in aid to support the accused s plea of planting the currency notes is belied by the lone recovery of the marked currency note of Rs 10 by itself detached from the purchee  in which it was said to be more or less concealed from external view  When witness swear home through a two inch board and sometimes quantitatively the defence musters up a number of witnesses the court has to be extremely cautious and careful to enter a verdict of guilty only if the complainant s version is supported by some clinching circumstance of such character and quality as may reasonably assure the judicial mind about the truth of the real position against the accused
This we have been able to find in this case as noted above
127 It was also argued at the stage that the charge being with reference A to favour shown to the complainant in person with regard to his own case the accused was entitled to an acquittal as the case in court was that it related to his brother Charan Dass
We do not think that a particular mention of the challan against the complainant instead of against Charan Dass in the charge has resulted in any material prejudice to the accused in the present trial
Evidence was clearly led regarding the challan against Charan Dass and it was his purchee  which had been handed over to the accused by the complainant alongwith the currency note
The accused was fully aware of the charge he had to meet and made no mistake in taking a definite defence although unfortunately the same could not be established
even the grievance of non examination of Charan Dass as a prosecution witness in presence of admitted purchee  is not of any consequence
A defence plea of planting of any incriminating object in answer to a charge to be successful must be or at any rate should reasonably appear to have been made without the knowledge or acquiescence of the accused
The case in hand is not such a case
The learned counsel strenuously relied upon Ram Prakash Arora vs State of Punjab1 where notwithstanding recovery of the two marked ten rupee currency notes the accused was acquitted in a bribery charge
But in that case recovery of the currency notes which was denied by the accused assumed great importance and the fact that the same could not be established by reliable and independent search witnesses was considered by this Court as one of the serious infirmities
The class from which the complainant comes is one of poor hawkers who somehow eke out their living
Nothing is known whether they just deliberately avoid payment of licence fees for hawking which may not even be exorbitant or they avoid being tucked to a particular place being subject to a licence in absence of which they may squat at any place of their choice and convenience
It is however manifest that such encroachment of public place will be a continuing offence and if repeated will be committed every day afresh
In that view a demand of Rs 10 for clearing one single day s offence and Rs 50 for purchasing immunity for the whole month may drive such a person to desperation prompting recourse to public authorities against such illegal proposals
In this view of the matter an unwilling or forced bribe giver as in the case at hand may not even be stigmatised as an accomplice in the strict sense of the term of particeps criminis
Even so we will adopt a cautious line in following the dictate of prudence to seek for some material corroboration even in this case to assure the judicial mind about the truthfulness of the crux of the matter in respect of the offence charged and of the nexus of the crime with the criminal
The matter will be different when a person himself abets the offences of bribery under section 161 and section 165 IPC which is an independent offence under section 165A equivalent earlier to section 161 read with section 109 or section 116 IPC
1 128 This also leads to the question whether all witnesses who are cal led upon to assist detection of a bribery case by laying a trap should be considered unreliable as accomplices or at any rate partisan witnesses
There is no rule of law that even if a witness is otherwise reliable and independent his association in a pre arranged raid about which he has become acquainted makes him an accomplice of a partisan witness
In absence of anything to
warrant a contrary conclusion conviction in not untenable merely because it is based on the testimony of such a witness
We are also not prepared to dub every witness of a raiding party to be an accomplice per se or even as an interested witness in total absence of materials justifying such an inference
While PW 4 will be highly partisan witness in this case in his own interest to oblige the police nothing was shown against PW 3
PW 7 the Inspector can not be considered as an absolutely partisan witness because he is a Police officer who took immediate action on the complaint
Nothing unusual is suggested against him
We have no hesitation in accepting the testimony of PW 3 and PW 7 on their own
They do corroborate the complainant
As demonstrated above it is not a case where conviction of the accused by the High Court is based only on the uncorroborated testimony of the bribe giver
Even three or four days  time taken by the complainant after the accused s demand of the bribe for the purpose of reporting the matter to the Anti Corruption Department is not such as to efface the offence when it was actually committed on the very day of the report which was faithfully recorded by the Inspector then and there without loss r r of time
A question arose whether the statement of the accused before the Inspector admitting to have received the bribe was admissible in evidence
It is apparent from the evidence of the Inspector that these cases are investigated by the Anti Corruption Department which carries on its work on its own
On a complaint made to the Inspector he recorded the same and arranged the raid by noting each step taken thereafter in a regular manner
What has been done by the Inspector in this case in order to detect the accused while taking the bribe comes within the term investigation  under section 41 of the 
Code of Criminal Procedure 1898
The moment the Inspector had recorded the complaint with a view to take action to track the offended whose name was not even known at that stage and in this case proceeded to achieve the object visited the locality questioned the accused searched his person seized the note and other documents turns the entire process into an investigation under the Code
Indeed the Inspector himself stated that he examined the witnesses under section 161 Cr
PC and completed the investigation
The fact that he had also later on forwarded the complaint for formal registration of the case at Lahori Gate Police Station does not doaway with the character of the investigation already commenced by the Inspector 129 On recording the complainant s statement disclosing a cognizable offence
Therefore any statement made by the accused in answer to questions put by the Inspector is inadmissible under section 162 Cr
PC and neither the prosecution nor the accused can take advantage of these answers
These are therefore excluded from consideration in this case by us
But all the same the conduct of the accused would be relevant under section 8 of the Evidence Act if his immediate reactions lo the illegal overture of the complainant or his action in inserting unwanted something in his pocket were revealed in the form of acts accompanied then and there or immediately thereafter by words or gestures reliably established
There is no evidence to support an innocent piece of conduct
In the entire circumstances of the case we agree with the High Court that it was not against the wishes of the accused that the money passed from the hands of the complainant into his pocket
The High Court and the trial court cannot therefore be said to have made any gross error of law in appreciating the evidence and coming to the conclusion that the charges against the accused were fully established
In the result the appeal fails and is dismissed
The accused shall surrender to his bail to serve the sentence
SR Appeal dismissed


Summary:
After recording a complaint dated 7 4 1969 by one SDM that the accused appellant a head constable demanded a sum of Rs 10 for not putting up a challan on 8 4 1969 before the SDM Delhi in a case pending against him the said sum being payable by 300 pm
On 7 4 1969 and also a sum of Rs 50 For not challenging him in future the Anti Corruption Department arranged a raid to detect the accused as his name was not known to the complainant
On a signal from the complainant after the receipt of the GC Note of Rs 10 the number of which was already noted by the Anti Corruption Department by the accused the raid party including the trap witnesses surrounded the accused recovered the GC note of Rs 10 which tallied with the number already noted besides a further sum of Rs 51 and two challans referred to in the complaint of SDM
The statement of the accused duly signed by him and witnessed by the trap witnesses and also a search memo duly signed by the accused and the trap witnesses were produced as documentary evidence at the  trial
The accused was charged under s 161 IPC read with section 52 read with section 5 d of the Prevention of Corruption Act 1947 found guilty convicted and sentenced to one year rigorous imprisonment besides fine
On appeal the High Court affirmed the conviction and the sentence
Dismissing the appeal by special leave the Court  HELD 1 In a case under section 161 IPC and section 52 read with s5d of the Prevention of Corruption Act 1947 where there was a clinching factor that a particular already marked currency note was recovered from the left side front pocket of the shirt of the accused that too immediately after its receipt from the complainant and which fact is corroborated by the seizure memo duly signed by the accused about the state of its recovery duly witnessed and also by 9 L390SCI76 120 the oral evidence the defence story of the complainant giving a ten rupee note wrapped inside the purchee is absolutely false
When such a conclusive proot is found with regard to this part of the case viz seizure of the currency note deficiency of corroboration with regard to the negotiation of the accused with the complainant pales into insignificance
126 A F 2 When witnesses swear home through a two inch board and sometimes quantitatively the defence musters up a number of witnesses the court has to be extremely cautious and careful to enter a verdict of guilty only if the complainant s version is supported by some clinching circumstance of such character and quality as may reasonably assure the judicial mind about the truth of the real position against the accused
126 G H 3 A defence plea of planting any incriminating object in answer to a 
charge to be successful must be or at any rate should reasonably appear to have been made without the knowledge or acquiesence of the accused
Ram Prakash Arora vs State of Punjab 1972 3 SCC 652 distinguished
4 When in a trial against a head constable for not challaning evidence was clearly led regarding the said challan which had been handed over to the accused by the complainant along with the currency note and the accused was fully aware of the charge he had to meet and made no mistake in taking a defence a particular mention of the challan against the complainant instead of Charan Dass in the charge does not result in any material prejudice to the accused
127 A B 5 Where the complainant comes from a class of poor hawkers who some how eke out their living unable to pay the demanded bribe for purchasing immunity from being challaned by the accused head constable and out of desperation takes recourse to public authorities against such illegal proposals he is an unwilling or forced bribe giver
Such an unwilling or forced bribe giver may not even be stagmatised as an accomplice in the strict sense of the term of participes criminis
127 D F 6 There is no rule of law that even if a witness is otherwise reliable and independent his association in a pre arranged raid about which he had become acquainted makes him an accomplice or a partisan witness
In the absence of anything to warrant a contrary conclusion conviction is not untenable merely because it is based on the testimony of such a witness
Every witness of a raiding party cannot be dubbed as an accomplice per se or even as an interested witness in total absence of materials justifying such an inference
128 A 13 7 In a case where on a complaint made to the Inspector of the Anti Corruption Department he recorded the same arranged for the raid by noting each step taken thereafter in a regular manner the steps taken by him in order to detect the accused while taking the bribe comes within the term investigation under section 4 of the Criminal Procedure Code 1898
The fact that he had also later on forwarded the complaint for formal registration of the case at the police station having the jurisdiction did not do away with the character of the investigation already commenced by the Inspector on recording the Complainant s statement disclosing a cognizable offence
128 F H Therefore any statement made by the accused in answer to questions put by the Inspector is inadmissible under section 162 Criminal Procedure Code and neither the prosecution nor the accused can take advantage of these answers
129 A 8 For an offence under the Prevention of Corruption Act 1947 the conduct of the accused would be relevant under section 8 of the evidence Act if his Immediate reactions to the illegal overture of the complainant or his action in inserting unwanted something in his pocket were revealed in the form of acts accompanied then and there or immediately thereafter by words or gestures reliably established
In the present case there is no evidence to support an innocent Piece of conduct of the accused
129 B C 121