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S69

j(ISHAN CHAND MANGAL

v. '.

STATE OF RAJAS:rHAN '/

October 14, 1982

[D.A. DESAI AND A.P. SEN, JJ.]

. ' E1idence-Of persons belonging to office-wise, wealth-wise' lower strata of_society-Rejection on sole groMJ_ of humble origin-Not justified • .

Evidence-Witnesse.1 independent of police inf/enc~Empfoyees of nationalised banks and institutioru receiving grants from gover'f111ent-Position of.

\ - / The appellant, a Factory Inspector, visited the complainant's factory and demanded an illegal gratification of s. 150/- on the threat of entangling him in

 some legal proceedings. The complainant, who wa1 not inclined to give the bribe,.

D made a written complaint to the Deputy Superintendent of Police. Anti-Corrup-· tion Department (DySP) requesting for suitable actiOn~ A_ trap was arranged by smearing IS currency notes of the denomination of Rs. 10/- each with phenolph- \ th3.lein powder and, on the direction of the DySP, two motbirs were requested to accompany the" raiding p_arty and to watch what happens. The motbir1 wetit along with the complainant to the residence of the appelJant and witnessed the acceptance of the money given to him by the com.plaicant, the subsequent.

E . search for thC recovery of the currency Dotes from the appellant,. the dipping of

his hands in sodium carbonate solution and the .consequent change in the colour .) of tho hands into pink, • ..

By the time the c3.se "came up for trial, the complainant was dead. In the absence of the evidence of the complainant, the trial Judge noted that the first dend of the bribe at the factory of the complainant had not been proved. , He, '. boWever, held that the evidence of the two mo1bir1 was reliable and was amply corroborated by the recovery of the Currency notes as well as the presence of phenolphthalein powder on the hands or the appellant. 'The trial_ , Judge' nviCtCd' I and sentenced the appellant under_s. 161, 1.P.C. and s. S(l)(d) read w:ith s. 5(2)' of the Prevention of Corruption Act, 1947. - ' . .

The High Court which examined the vrdence of the 'molbir1 agreed with the findings recorded by the trial Court and 4ismissed the appeal filed by the appetliint.

One of the contentions urged on behalf of the appellant was that !, once the complainant was not available to give evidence not only of the first demand but also on the payment dr bribe PUrSuant to the demand, the evidence ot the two morbirs had assumed cotlsiderable importance and it Was unwise and dangerous to pJace implic!t , reliance on their testimODJ'. to convict the appellant

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as (i) both the motbirs were petty clerks and (ii) by virtue of their scrvi~, they were likely to be under pOiice influence.. ·

Dismissing the appeal;, •

/. . ' HELD : Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons. In a country where renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would. be the travesty of truth if persons coming from bumble origin and belongin"g to office-wise, wealthwise lower strata of society are to be disbelieved or rejected as unworthy of belief Solely on th_e ground of their bumble position in society. (577-P]

Khairatl Lal v. The State, (1965) l belhi Law Times, J62'overruled. ·

- In the "instant case it is factually not correct to say that both the motbir.J are petty clerks : one was serving as a clerk in a nationalised bank and the other was a teacher in a lniddle school. The testimony or the' motblrJ which had been . accepted as Wholly reliable by the trial Judge and the High Court cannot be rejected on the sole ground that they are petty clerks. (577-E: 578-A-B] ·

. ' .

It nlay be. that officers. of Anti-Corruption Departeni h3ve jtirisdiction to inVestigate lapses on the part of clerks_ in nationalised banks. It is not clear whether the motbir who was a teacher was a government cmploYee or the scboOI itself was a government school. It' may be that the school was receiving grant but. if all institutions which receive grant from government are styled as

govCmi:nent departments and have to be treated as fallirig under the police infiueDce then the net will have tO be spread so wide as not to exclude anyOne . as independent of poliCc influence. There is no justification in the submission that the two motbirJ were .persons not likely to i0; depcndent of poJice influence. [578-D-EJ ·

\. . ' Raghhir Singh v. State of Punjab, AIR 1976 S.C. 91, distinguished •

CRIMINAL APPELLATE Jua1so1cnoN : Crimi11aJ Appea~ No. 4s of 1980 -

From the Judgment and Order dated the 17th October, 1979 of. -. the High Court of Rajasthan in S.B. Criminal 'Appeal No. 39 or

1977.

 ' Frank Anthony and S.K. Jain,' for the Appellant. . ' . f

BadTi Dass Sharma for the Respondent.

Tbe Judgment of the Court was delivered by

. , DESAl; J.

Appellant Kishan Chand Mangal was convicted by the learned Special Judge (A.C.D. Cases), Jaipur, Rajasthan, for .

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KISHAN CHAND v .. RAJASTHAN (Desai, J.) 571•.

Appellant at the relevant time was serving as Factory Inspector,.

Ajmer and in that capacity he accompanied by his friend paid a visit on November 20, 1974, to the factory named 'Krishna Industries' whose proprietor was one Rajendra Dutt. Appellant said that his vi.sit being after a lapse of one and a half year, the proprietor should , pay, him pocket money.

Rajenda E>utt replied that his establishment was not covered by the Factories Act and showed disinclination to grease the_palms of the appellant. However, appellant persisted .in his demand and told Rajendra Dutt if he did not.pay Rs. 150/- he . was likely to be entangled in some legal proceedings.

So saying appellant and his companion left.. Rajendra Dutt was not inclined to give the bribe demanded from him a:nd,. therefore, on November 22, 1974; he contacted Dy. S.P., A.C.D., Ajmer, P.W. 70 Mahavif Prasad and gave a written 'complaint Ext. P-12 complaining about the demand of illegal gratification by the appellant requesting for taking suitable action in the matter. He also produced 15 currency notes each of the denomination of Rs. 10/-. P:W. 7 Dy. S.P.

Mahavir Prasad directed P.W. 3 PrahladNarayan to bring two.· persons to witness the search and accordingly P.W. 1 Ram Babu and P:w 2 Keshar Mal were requesied to join the raiding party. 15 currency notes produced by the complainant were smeared with phenolphthalein powder and a memorandum of the same was pre- . pared; The raiding party led by P.W. 7Dy. S.P. Mahavir.Prasad and including the com.Plaina.nt Rajendra Dutt, two mtbirs P.W; I Ram Babu and , P.W. 2 Keshar Mal, P.W. 3 'Prahlad Narayan, a clerk in the Office uf the Anti Coquption Department, .started by a jeep driven by P.W. 6 Bajrang Singh to go to the residence of the appellant. Office and residence of the appellant are situated in the same buitding.

Complainant Raj endra Dutt and the two motbirs Ram Babu and Keshar Mal proceeded ahead and entered into the .

room used as residential. portion of the building. Ram Babu and Kcshar Mal stoppled in the verandah and .the complainant Rajendia . Dutt went inside.· Appellant ws seen sitting on, a cot. On inquiry . by complainant Rajendra .Duti appellant replied that he was not well

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SUPREME COURT REPORTS j19sjj i s.c.ii..

and that he was suffering from cold.

Appellant then inquired whether co.mplainant Rajendra Dutt had brought the money and tbe cqmplainant replied that he had brought the money and handed over marked currency notes 15 in number each of th_e demonination of Rs. 10/- which the appellant accepted ailcj put the same under his pillow. Rajendra Dutt canie out in the verandah and as instructed, ' gave the agreed signal whereupon Dy. S.P. Mahavir Prasad, the two motbirs and others entered the room. Mahavir Prasad introduced himself as Dy. S.P. ACD, and asked the appellant whether he had accepted Rs. 150/- as and by way of bribe from complainant Rajendra Dutt. Appellant denied having accepted any bribe or any money from Rajendra Dutt whereupon a search of his person-was taken. When the search of the person of the accused was being taken motbirs Ram Babu and Keshar Mal pointed towards the pillow indicating that .the bribe taken by the appellant was kept underneath the pillow.

P.W. 6 Driver Bajrang Singh , was asked to .lift the currency notes and the numbers were _tallied with the memorandum prepared earlier. Hands of the accused were dipped in the solution of Sodium carbonate which turned pink. After the memorandum was completed' recording all these facts and after completing investigation sanction, was obtained and the appellant was prosecuted for the. aforementioned offences.

. By the time the case came up for trial complainant Rajendra Dutt was dead and his evi.dence was not available.

Prosecution examined the two motbirs Ram Babu and Keshar Mal, Dy. SP, ACD Mahavir Prasad, Clerk Prah!ad Narayan, Driver Bajrang Singh and two others.

Statement of the accused was recorded under s. 313 of the Code of Criminal Procedure and he offered himself as a witness in his defence. In his evidence he stated that on the date of occurrence around 4.30 p.ni. when he was sitting in his cot complainant Rajendra Dutt came and took a seat in the chair placed nearby.

Appellant enquired wfiy he had come and whether he had brought any written complaint against Clerk Mr: Singhal. According to him, the complainant replied that action be taken against Singhal by recording his statement whereupon the appellant said that if the complainant has any grievance be should come with a written complaint. Appellant further stated that thereafter he went to the bath room for spltting coug}\ and he came out and sat on the cot.

Complainant'Rajendra Dutt enquired whether he can drink water • from a jug which was' lying there. Thereafter Rajendfa Dutt went

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KISHAN CHAND V. RAJASTHAN (Desai, J.) 573

out of the room and soon thereafter 8 persons including Rajendra Dutt entered tb'e room. He stated that two of the members of ihe raiding party caught his hands and when he. tied to get himself releasedfrom the grip of th.ose persons the grip tightened. One of the members of the raiding party then told him that he was Dy. SP,.

ACD, Ajmer and called upon him to produce Rs; 150/- he had taken from Rajendra Dutt. Appellant stated that he immediately told the Dy. SP that be bad not accepted any money from Rajendra .Dutt wliereupon the Dy. SP came.near him an~ put his hand in the pocket of the garment put on by the appellant. Appellantobjected to any search being taken and insisted on keeping two respectable persons present. He further _stated that Dy. SP qu, arrelledwith him and then be sent a telephone message to S.P., Ajmer that a: Factory Inspector lias quarrelled with hilli' and he should be provided with extra police help. Tbereaf.ter his bands were dipped in a solution but the colour of the solution did not chan.ge and remained white. Appellant then told the Dy. SP that Rajendra Dutt bad come to complain against one Singhal, a' Cierk and in support of this he produced Ext. D-2 marked collectively in respeci of five letters. At )his stage the Dy.

SP according to the apj>ellant asked Rajendra _ Dutt why he bad given a false signal whereupon' the complainant Rajendra Dutt. informed the DySP thafthe bribe money was lying under the pillow whereupon the DySP removed the pillow and collected the currency notes. He further stated that be has been involved in this false case . at the instance ot K.C: Sogani, Factory Manager of Krishna Mills, Bea war. This was broadly the defence of the appellant as collected from his evidenc~. ' '

The learned special Judge noted the faci that the complainant Rajendra Dutt was not available and, therefore, the first demand at the.Factory of Rajendra Dutt on November 20, 1974, has not been proved. The learned Judge, however, held that the evidence of two n:iotbirs Ram Babu. and Keshar Mal was reliable and was amply corroborated by the . recovery of currency notes as~ well as the presence of phenolphthalein powder on the hands of tl; le accused.

The learned Judge rejected the defence version that the currency notes were planted when the appellant had gone into the bath room. ·

The learned Judge accordingly convicted and sentenced the appellant as mentioned bereinbefore. '

' H The appellant having unsuccessfully appealed to the Rajasthan High Court, has filed this appeal by special leave.

SUPREME COURT REPORTS [1983J 1 s.c .... . ' Mr. Frank Anthony, learned counsel for the appellant contended that there are certain features of this case which would convincingly show that the prosecution case cannot be accepted. He enumerated the circumstances as : (i) absence of name ofthe appellant in the F.I.R. Ext. P-12; tiiJ absence of evidence of demand as 00 November 20, 1974.; (iii) absence of any prior arrangement where and when the complainant was to' meet the appellant aµd, therefore, the trap could not be successfully arranged wbJ!ih might permit an inference that the whole story of ac.ceptance of . bribe money is concocted; (iv) further two motbirs P.W. I Ram Babu and P.W. 2

Kesfiar Mal were petty clerks specially selected by P.W. 3 Prahlad Narayan ; (v) in their evidence they have tried to improve upon the prosecution version which shows their unconcealed interest in the Success of the trap. which would render them partisan witnesses;

(vi) there are certain omissions in the evidence of the prosecution witnesses which may indicate that the defence v_ersion of planting the currency notes when th

0e appellant had gone to. bath room is probabilised ; (vii) that no inference be drawn from the fact that when hands of th, e appellant _were dipped in the sodium carbonate solution it turned pink because admittedly when hands of. the accused were caught by the members of the raiding party one or the other of them may have transmitted phenolphihalein powder to the hands of the appellanl. .

Complainant Rajendra Dutt on whose complaint a trap was arranged was dead by the time the case came up for .trial and his evidence was not available to the prosecution. However,' the complaint Ext. P-12-filed by him was adm.itted in evidence because P.W. 7 Mahavir Prasad, the Dy SP who recorded the same gave evidence about the same. The averments in the complaint even in the background of these facts would not provide substantive evidence and the only use to which it can be p.ut is that a coinplaint of this nature was filed which tends. to explain the subsequent actions taken ' . by the DySP.

' High Court has examined the evidence of two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal, and also the evidence of P.W. 7 Mahavir Prasad and agreed-with the findings recorded by the trial court.

We neecf not examine the evidence afresh but limit our examination to specific contentions raised by Mr. Anthony.

The-first contentfon is that the name of the appellant Kishan Chand Mngal is not to be found in Exi. P-12. That is true, but

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KISBAN CHAND V. RAJASTHAN (Desai, J.)

57S

what is.stated in Ext. P-12 is that a Fctory Inspector accompanied by his friend visited the factory of the appellant and demand.ed a bribe.

Now, the appellant in his evidence as.DW 1 has stated that complainant Rajendra Dutt did come to his house on November 22, ' 1974, arountl .- 4.30 p.m. Appellant further proceeds to say that

Rajendra Dutt had 8ome grievance against a clerk Singhal and appellant insisted upon givil)g a written complaint at the time of the visit of Rajenqra Dutt; If Rajendra' Dutt, as is now contended wanteil to falsely implicate the accused there is no: reason why he' . would not mention the name of the appellant in Ext. P-12.. On the contrary the absence of'the name of the appellant in Ext. P-12 would

indicaie that probably the appellant had visit"d lhe factory <?f . . Rajendra Dutt after a long time and that js wliat transpi.res from

- Ext. P, J2 that the visit of the appellant was after a year and half.

It is !easonable to infer that Rajendra Dutt did not know the name

of the appellant but knew him by the desjgnation of his office as Factory Inspector .. Therefore, the absence of name of Kishan Chand Mangal in Ext. P-12 is hardly of any significance. . ·

( It was next contended that once Rajendra Dutt is not available . for evidence there is no evidence as' to the demand of bribe on -November 20, 1974, and it is not open to the Court to spell out the demand from thecontents of Ext. P-12. It is undo).lbtedly.true that.

Rajendra Dutt was dead before the commencement of trial. It is equally true that the F.l.R. lodged by him on November 22, 1974, -cannot be used as substantive evidence nor the contents of"the "report .

can be said to furnish testimony against the appellant. Such an F.I.R. would npt be overed by any of the' clauses of ss ... 32 and. 33 of the Evidence Act and would not be admissible as substantive evidence. The questidn still rem.ains whether. tqcre is any evidence of demand of bribe on November 20, 1974, in this case. A fact may be proved either b.y direct testimony or by circumstan'tial evidence.

If appellant did not visit the Factory of Rajendril Dutt on November 20; 1974, and made no overtres demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy. SP; ACD on November 22, 1974, his producing currency notes worth Rs. 150 ; a superior officer like. the DySP, ACD, making all arrangements for' the trap and the raiding party going to the house of the accused oil November 22, 1974. 'The visit of Rajendra . Dutt soon followed by the. raiding party at the house of the accused on November 22, I 974, is.admitted. Coupled ivith this, the fact that Kesbar'Mal, P.W. 2 in bis evidence stated that after Rajndra Dutt

entred tl!e fQQm in which appellant was sitting, Rajendra Dutt on

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(1983] I S.C.R • . entering the room asked the appellant, 'Hallo, how do yon do'. He further stated that the appellant replied, 'I am sick and suffering from cold'. He deposed that thereafter, the appellant asked, 'Have you brought the money', whereupon' complainant Rajendra Dutt replied, 'Yes, I have brought the money'.

He further stated that thereafter Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the ' amount and kept it under the pillow on the cot. If there was no ·

prior demand the sub-sequent events remain unexplained as also the demand as deposed to by P.W. 2 Keshar Mal. But Mr. Anthony .urged that this part of the evidence of Keshar Mal cannot be accepted because he bas not stated lb.is fact in bis statement recorded in the course of investigation. Simultaneously it was pointed out that . the other motbir _Ram Babu is totally silent in -his evidence about this conversation between the appellant and the complainant.

Undoubtedly, the omission in the police statement of Keshar Mal and non-mentioning all t.hese facts by the co-motbir would raise some doubt in the mind of the court about this conversation but as pointed out earlier there are tell-tale circumstances which do indicate that there m11st_ have been a demand and, therefore, these circumstances as herein before set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlie~. emand by the appellant. Toherefore, it E is not proper to say that there is no evidence of the demand of bribe as on November 20, I 974.

It was next contended that if a bribe is demanded and agreed to

b~ paid and if the complainant was coiitemplaiing °'?t to pay the bribe but was thinking of initiating action against the officer demanding t.he bribe, obviously for the success of the trap to be arranged the time and place of meeting would be arranged and if it be so it would be mentioned in the F.I.R. I_t was said that the very absence of it would show that there was neither a demand of bribe nor any action was contemplated on November 20, 1974, as is now sought to be made out and, therefore, the court should not accept any evidence with regard to the trap. In view of the adm_ission of the appellant in his evidence that Rajendra Dutt followed by a riding party came to his house also used as residence-cum-office . around 4.30 p.m. on November 22, I 974, omission to mention about the time and place offuture meeting in the F.I.R. Ext. P-12 loses all significance. It is equally possible that on the very day when the appellant visited the factory of Raje11dra Putt and demanded bribe, Rajendra Dutt may

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KiSHAN CHAND v. RAJASTHAN (Desai, J.) 577.

not have immediately planned to rush to the. Anti Corruption ' ' Department. He had declined to give the bribe. In· his view his factory was not covered by .the . Factories Act. These are the averments in Ext. P-12. They are not being relied upon as substantive evidence but are used to explain the conduct of Rajendra Dutt which has evidentiarY value. If Rajendra Dutt did not negotiate giving the bribe and did not agree to give tire bribe though the appellant persisted in the demaf!d and threatened to involve him in cQurt cases the question of any arrangement for any time and place for giving th.e bribe does not arise and obviously it could riot have found its place in .the F.l.R. Such things lind mention in a F.I.R. only when the victim.agrees to grease the palms of the officer.

Absence in such a situation of such averments in Ext. P-12 in this case is both natural and obvious.

. •.

The next contention is that once Rajendra Dutt is not'available . to give evidence not only of the first demand 'but alSo the payment

of bribe pursuant to the demand, te evidence of two inotbirs assumes considerable iportance. It was urged that both . the motbirs are some petty clerks and it would be both unwise and . dangerous to place impiicit relian'ce on their testimony to convict the ·

Government servant. Factually 'It is not correct to say that both the motbirs are petty clerks.

Ram Babu was serving as a clerk in the Central Bank of India and Keshar Mal was serving as a teacher in Middle School at the relevant time. It is unfortnate that thirty five years after independence aiui'in this age of conimon man, there is still not the eclipse of the high brow. Sanctity of word' made depn- . c; lent upon the office held or wealth acquired is a nauseating phenomenon. Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons.

In a country where renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would be the travesty of truth if persons coming from humble origin and belonging to officewise, wealthwise lower strata of society are to be disbeliev'ed or rejected as unworthy of belief solely.on the grpund of their humble position in society. The converse unfortunately appears to be true .. The submission was sought to.be buttressed by reference to Khairati Lal v. The State(').

A learned single judge of the High Court rejected the testimony in that case of P.W. 2 Brij Nandan and P.W. 3 Krishan Kumar observing tbat they re petty clerks_ and cannot be styled as ilidependent witnesses.

We have moved far away in seventeen years and this

<I) (l.965) I Delhi 1.:w Times, 36~.

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SUPREME COURT REPORTS [!983j 1-S.C.R.

approach does not commend to us.

We say no more.

Therefore, v.:ithout further discussing this aspect, we are utterly disinclined to reject the testimony of the two motbirs accepted as wholly reliable by the learned Special 'Judge .and the High Court on the sole ground that they are petty clerks' as if that by itself is sufficient to reiect tlieir testimony. That is a wholly irrelevant consideration.

As a second string to the bow it was urged that Ram Babu, was serving at.the relevant time as a Clerk in the Central Bank of India and Keshar Mal was a tacher in -the mi'Cldle _school at Ajmer and both of them were, therefore, by virtue of their service, likely to be under the police infiuence. It is difficult to appreciate' this - contention. Undoubtedly Ram Babu was.a Clerk in a nationalised bank and it may be that officers of Anti Corruption Department may have jurisdiction to investigate lapses on the part of clerks in nationalised banks. It is not clear' whether Keshar Mal who was serving in a Middle School was a GovernIJlent' emyloyee or the school itself was a Government School. 1t inay be that the school may be receiving grant_ but if all institutions which receive grant from Government and are, therefore,, styled as Government Departments, and have to be treated under the police influence then the net

- will have to be spread so wide not to excluoe any one as independent of police infiuence. We find no justification in the s_ubmission that the two motbirs were, persons not, likely to be independent of - police infiuence. Both of them-have been accepted as independent witnesses and they do satisfy the test of witnesses independent of police infiuence.

Reference in this connection was made to Raghbir Singh, v. State of P.unjab('), wherein this Court adversely commented

__ upon selecting one Makhan, a sweeper in the whole time employment

of police, as a witness in a trap case observing that the Anti Corrup- . tion Department should insist on observing the safeguard of selecting independent persons as witnesses as scrupulously as possible for the protection of the p, ublic servants against whom a trap may have to be laid. Makhail, a sweeper in the whole time employment of police. can obviously not be said to be independent of police infiuence but how does he compare with a clerk in a nationalised ba, nk and a teacher in a middle school? 1t, therefore, cannot be said tl:iat the two mothirs could not be stYied as independent witnesses. In ' passing it was submitted that Rajendra Dutt and Ram Babu must have intimately-known each other because Rajendra D, iltt had an account in the same branch i~ which Ram Babu was working _as _______ ,

(I) AIR 1976 SC 91.

KISHAN CHAND v. RAJASTHA" (Deai, )) 579

clerk. If a Bank Clerk is supposed fo be intimately connected with each account holder in the bank, banking service would receive encomiums from the society. But it is difficult to accept the submission that on this account Ram Babu could not be said .to be independent witness and let it be recalled that by the time Ram Babu came to give evidence Rajendra Dutt was already dead.

The next contention is that even if Ram Babu and K:eshar.Mal are independent witnesses there are certain inherent infirmities in their evidence which would' render their evidence untrustworthy of belief. Before we examine .this submission in detail let it be reiterated that the learned special judge who tried the case and bad seen both these witnesses giving evidence has observed /that P.W. 1 Ram Bab~ and P.W. 2 Keshar Mal are independent witnesses and there. is nothing)n their testimony which may induce any distrust about the facts stated by them and their evidence was relied upon. The learned judge of the High Court observed that both the witnesses are independent witnesses. and there is no reason why _their evidence should not be relied upon.

It is now time to briefly refer to some of the omissions and contradictions brought to our notice with a view to persuading us to reject the testimony of both these witnesses. It was pointed.9ut that according to Ram Babu both he and Keshar Mal told the DySP that the currency notes were under the pillow while according to ' Keshar Mal it was Ram Babu who pointed out that the currency .notes were under the pillow.

We find no contradiction in this statement because if plur, al used by Ram Babu was to be relied upon as a contradiction, cross-examina.tion ought to have been directed on this point. It is n, ecessary to point out that the cross-examination of both the witnesses is scrappy; jumpy and not pursuant to any set theory of defence~ It is worthwhile to note that there is not the slightest. challenge to. the statement of both these. witnesses that while waiting in the lobby outside the room both of them saw' Rajendra Dutt giving marked currency notes to .the appellant and appllant accepting the same and keeping .them underneath the pillow .. It was also urged that both the witnesses in their respective statements'in the course of investigation have not referred 'that they pointed out th.at the currency notes .were kept under the pillow. A further omission was pointed out that while Mahavir , Prasad has stated that accused started quarrelling.with him which necessitated ummon ing additional police help, both tl:ie wit11sses while referring fo th~

SUPREME COURT REPORTS

(1983) I S.C.R,

quarrel picked up by the appellant so as to support the evidence of Mahavir Prasad have failed to refer to this aspect in their statements in the course inve.stigation. These are omissions of trivial details and have hardly any bearing on the main part of the prosecution case. Along with 't]lis the earlier omission in the statement of Keshar Mal already discussed was reiterated.

In. our opinion the so-called inner variations between the evidence of these two witnesses and omissions of trivial details would not cause any dent in the testimony of these two witnesses. Mr. Anthony after referring to Darshan Lalv. Delhi Administration('), urged that if Mahavir Prasad took search of the appellant for recovering the bribe it would show that neither Ram Babu nor Keshar Mal had seen appellant keeping marked currency notes under th~ pillow. Such an inference cannot be drawn. Ordinarily the police officer would start searching the person of appellant and while he was doing that act, he was told where the currency notes were kept by the appellant. Therefore, no such inference is permissible.

It was lastly urged that the court should not be influenced by the'fact that when .the hands of the appellant were .dipped in a solution of sodium carbonate it turned pink which would affirmatively show the presence of phenolphthalein powder on the tips of fingers of the hands of the appellant. The. fact remains that the

solutimfdid turn pink when the hands of the appellant were dipped in it. The explanation of the appellant is that both bis hands were caught by the members of the raiding party and it is possible that > the members of the raiding party whose hands must have already been soiled with the phenolphthalein powder when the arrangements were being made for laying the trap they must have transmitted the same to the band~ of the accused .. This contention stands b.elied by , ' the evidence on record. Mahavir Prasad bas deposed that he asked~ one Ganga Singh to demonstrate the phenolphthalein powder test.

After that he was direted to wash his hands.

No other member of . the raiding party touched the phenolph_thalein powder at the time of demonstration. Ganga Singh was a member of the raiding party but when the hands of the accused were sought to be dipped in the solution tbis task was assigned to SI Satya Narain. Undoubtedly there is nothing to show that his hands were soiled with phenolphthalein powder. The hands of Rajendra Dutt must have been soiled with

!I) AIR 1974 SC 218.

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KISHAN CHAND •• RAJASTHAN (Desai, J.) 581

 phenalphthaleih powder because he took out the currency notes from his diary and passed them on to the appellant. But it is not suggested that Rajendra Dutt caught the hands of the appellant. Therefore, it is not possible to accept the submission that when the hands of the appellant were caught in the ensuing quarrel between him and the DySP Mahavir Prasad, phenolphthalein' powder must have been transmitted by . persons holding the hands of the appellant. This 'tell-tale circumstance would lend ample independent corroboration if there be any need to the evidence of Ram Babu and Keshar Mal that they saw Rajendra Outt giving marked currency . otes to the appellant and 'the appellant accepting the same aod.puUiog them underneath the pillow.

Mr. Anthony urged that there are' certain tell-tale circumstances in the case which would render the defence plausible. It was urged that the appellant did not disclose any guilty syndrome when the raiding party entered his ro'om and at the first question he denied having accepted any bribe from Rajendra Dutt. How would these two circumstances be sufficient to reject ihe otherwise reliable _ testimony ?- A person with a strong will would not be upset and may remain cool and collected. The appellant did pick up a quarrel with the DySP. Why? His suggestion that he insisted oit two independent witnesses being kept present appears to be an afterthought.

The fact that the appellant picked up a quarrel is borne out from the evidence of the persol)s presentthere and by the action of the DySP In summoning additional police help°.· Therefore, we find no circumstances which would impinge upon the prosecution case .

We read the entire evidence of two motbirs Ram Babu and Keshar Ma!, evidence of DySP Mahavir Prasad, Ext. P-12, the · F.I.R., and we are in agreement with the High Court that the case . , has been proved beyond a shadow of reasonable doubt. The evidence of appellant himself does not raise a plausible defence and has been rightly negatived.

Mr. Anthony further urged that the appellant did not demand bribe because there is no such evidence and that even if. Rajeodra Dutt appears to have given some currency notes the appellant was an uowillfog victim and the court must frown upon such attempts of the police to make governmel!t servants commit offence.

He relie<l

SUPREME COURT REPORTS. (1983] I s.c.a.

upon the oft quoted passage in Brannan v. Peek('). In that case the finding was that when the second time the police constable attempted .to give a bet the accused showed his reluctance to accept the same ..

That was also the finding of the justices. The Court frowned upon the police officel'S in the absence of an Act of Parliament going to the place of the accused so as to induce him to commit an offence.

We fail to see how this observation has any relevance in the facts of this case. Once the suggestion that there was a demand of bribe is accepted the appellant could not be said to be an unwilling victim nor a fence sitter who was induced to fall a victim. to the trap.

Lastly it was urged that the court would not be justifiedni raising a presumption under S. 4 (1) of. the Prevention of Corrup tion Act, 1947. In the facts of this case and in the absence of presumption even if Rajeddra Dutt .gave some money to the appellant that by itself would not establ, ish the .offence and the case must fail.

Reliance was placed on Ba.nsi Lal Yadav v. State of Blhar('). In that case the defence of the accused was that currency notes were thrust in his pocket. Taking cue from this statement, the court held that the acceptance of an amount other than legal remuneration having been admitted the presumption would arise under S. 4(1) and the burden would shift to the accused. It is in this context that this court held that where the accused says that involuntarily the amount was thrust in his pocket he could nc; it be said to have accepted or obtained for himself any gratification other than legal remuneration which alone permits the presumption to be raised. Facts in this case being a demand and voluntarily acceptance, the presumption would squarely arise and has been rightly raised.

Reliance was also plaeed on the decision of this Court in Sultan Singh'v. State of Rajasthan(3). In that case the explanation/ of the appellanl was that Rs. 100 was paid to him towards the arrears of revenue and in the. absence of reliable evidence to the contrary the explanation was held acceptable. . This is a decision on the facts of that case and would be hardly of any assistance in dealing with the points raised in this case.

(I) [1947] 2 All E.R. 572 at 574.

(2) AIR 1981 SC .1235.

(3) Crl. Appeal No. ~6 of !967 detjded OD July 28, }969.

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KISHAN CHAND v. RAJASTHAN (Desai, J.) . 583 . • Therefore, the charge is brought home to the accused and he has been rightly convicted and the sentence awarded being the minimum, n_o case is' made out for interfering wit~ the same.

Accordingiy this appeal fails and is dismissed. The baiLbond of the appellant is cancelled and he must surrender to serve out the

sentence.

H.L.C. , Appeal dismissed.