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1995 (3) TMI 488 - SUPREME COURT

1995 (3) TMI 488 - SUPREME COURT - 1995 (2) SCR 900, 1995 (3) SCC 351, 1995 (3) JT 367, 1995 (2) SCALE 298 - Criminal Appeal No. 553 of 1991 - Dated:- 21-3-1995 - REDDY, K. JAYACHANDRA AND PUNCHHI, M.M. JJ. JUDGMENT: K. JAYACHANDRA REDDY, J.: 1. These appeals arise out of a common judgment of the High Court of Kerala in Criminal Appeal Nos. 195/90 and 245/90 filed by the appellants herein C.K. Karunakaran and M.O. Shamsudhin respectively. The two appellant; figured as accused nos. 1 and 2 in C.C .....

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orous imprisonment for one year for the offence under Sections 161 read with 120-B 1.P.C. A-2 M.O, Shamsudhin was sentenced to rigorous imprisonment for one years and to pay a fine of ₹ 500/and in default to undergo simple impris- ionment for a further period of one month for the offence under the prevention of Corruption Act and to rigorous imprisonment for one years for the offence under Sections 161 read with 12-B I.P.C. The substantive sentences of imprisonment were directed to run con .....

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, Rajan applied for patta with regard to 55 cents of Sarkar Porambokhu land in Kalur Village. Kunjan had remitted the necessary amount on 25.1.1974 pursuant to a notice. The balance amount of ₹ 42/was also remitted some time in 1975. After satisfactory compliance of the required formalities, patta was directed to be issued in his favour by the Board of Revenue. Before the patta could be issued Kunjan died. The matter was not pursued till 1987. One 8.6. 1987 P.W. 1 sent P.W. 2, his cousin, .....

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Boilers. A case was registered, mahazarss were prepared and the currency notes were subjected to Phenolphatelin test and the tainted money was handed over to P. W. 1 to be given in turn to the accused on demand.P.Ws. 7 and 8, Vigilance Constables followed P.Ws. 1 and 2 to the office of A- 1. P.W. 11 and others were also on the move. According to P.W. 1, he entered the office of A-1 and told him that he had brought the amount asked for. A-1 asked him to give the amount to A-2 who was standing ne .....

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nt worn by A-2 as well as his fingers were dipped in lime water and the Phenolphatelin test proved positive. The necessary panchnama incorporating all the facts was drawn up. The investigation of the crime was partly conducted by P.W. 11 followed by P.W. 12 who succeeded P.W. 11 and after completion of the inves- tigation, the charge-sheet was laid. 3.When Questioned under Section 313 Cr.P.C., A-1 admitted that on 9.6.87 P.Ws. 1 and 2 met him in respect of issuance of patta. He however, denied t .....

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1 in the office room of A-1 on 10.6.87 as per the instructions of A-1 but added that the amount was accepted without knowing that it was bribe money. He further explained that on.9.5.87 he obtained a loan of ₹ 1980/- from his provident fund account which was sanctioned by A-1 and from that amount ₹ 500/- was taken by A- 1 as a loan stating that the same was required to meet his urgent necessities and he promised to return the same within two days and the balance of ₹ 1480/- alo .....

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ions of A- 1 bonafide believing that it was repayment and without knowing that it was bribe money and therefore he is innocent. In support of his plea he examined D.W.1, an L.D.C. working in his office just to show that on the previous day a loan From provident fund was sanctioned to A-2. 5. Most of the basic facts are not in dispute. However, when examined in the court the evidence of P. Ws. 1 and 2 did not unfold a consistent case in ail respects. P.Ws. 1 gave evidence in such a way making an .....

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complice and that since P.W.2 has been treated hostile, there is no corroboration with regard to the alleged demand of bribe by A- 1 and since bribe money was recovered only from A-2, A-1's plea that he is innocent should be accepted and that A2's statement trying to throw the blame on A- 1 can not be used against A- 1 even assuming it to be a confession and that such a confession by a co-accused who has tried to exculpate himself and inculpate A-1 is of no evidentiary value at all. Shri .....

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ecovery of the same from A-2 is also not in dispute. A-2, however, pleaded that he -was not a party to the alleged criminal conspiracy with A-1 in demanding the bribe. The evidence of D.W. 1 only shows that a loan from out of provident fund was sanctioned on the previous day. That by itself does not in any manner demolish the evidence of P.W. 1. 8.Now the question is whether the inconsistencies found in the evidence of P.Ws. 1 and 2 do in any manner affect the prosecution case as such? P.W.1 in .....

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A-1 directed him to give the money the next day at the waiting shed near Swapna Theatre, Thrissoor in the morning of 10.6.87. P.W. 1 sent P.W.2 to the waiting shed who told A-1 that he (P.W.1) would bring the money after selling pep- per in the market. P.W. 1 further deposed that after realising the money he went to meet P.W.2 who told him that A-1 has asked P.W. 1 to go and meet him with the money at 4 P.M. At that stage P. W. 1 decided not to give bribe and decided to inform the vigilance depa .....

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Then he gave the necessary signal and thereafter the cap party came in and recovered the money from A-2. In the cross-examination this witness was confronted with his previous statement. It appears that he stated to the police that A-1 in the first instance demanded ₹ 1,000/-. He was also confronted with the contents in his complaint Ex.P.4. We have examined the contents of Ex.P.4. There no doubt P.W. 1 stated that A-2 came to them and stated that A- 1 was asking for bribe of ₹ 1000 .....

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however, stated that A-2 was present when he went to give money to A-1 on 10.6.87. Now we, shall examine the evidence of P.W.2 who is no other than the nephew of P.W. 1. In the chief-examination he deposed that on 19.6.87 at about 11.30 A.M. he and P.W. 1 went to the office of A- 1 who after seeing the file told that since it is a forest land it is not possible to get patta and when they went out of the office they saw A-2 who told them that if ₹ 1000/- are given to him he will get it done .....

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m and need not be paid directly to A-1. Accordingly P.W. 1 gave that tainted notes to A-2. Thereupon P.W. 1 gave the signal. He gave further details about the recovery of the money from A-2 and drawing of Mahazars etc. Towards tie end of the chief examination a specific question was put to him by the prosecutor asking whether it was not A-2 who demanded the money to which P.W.2 stated that it is only A-2 who demanded the money saying that it has to be given to A-1. Because of this answer, the wi .....

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pired with A-1 in obtaining illegal gratification. 10. No doubt P. W. 2 has been treated hostile but we see no reason to reject the evidence of P. W. 1 who is the main witness regarding the demand of bribe and the acceptance of the same by A-2 on behalf of A-1 as directed by A-1.Learned counsel, however, submitted that there is no corroboration to the evidence of P.W.1 who is in the nature of an accomplice regarding the demand. 11. Since this is an argument which is frequently put forward in all .....

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l particulars. Section 133 of me Act, however, declares that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice. The relation between Section 133 which is rule of law and Illustration (b) to Section 114 which is a rule. of prudence has been the subject of comment in a large number of decisions. However, it has emerged that a conviction based on the uncorroborated testimon .....

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e the accused. The reasons for requiring corroboration of the testimony of an accomplice are that an accomplice is likely to swear falsely in order to shift the guilt from himself and that he is an immoral person being a participator in the crime who may not have any regard to any sanction of the oath and in the case of an approver, on his own admission, he is a criminal who gives evidence under a promise of pardon and supports the prosecution with the hope of getting his own freedom. 12.Now con .....

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s under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be -a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving die trap cannot succeed. When there is such a demand by the public servant from person who is unwilling and if to do public good approaches the authorities and lodges complaint then .....

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s forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of "accomplices" by reason of their being bribe givers, in the first instance the court has to consider the degree of complicity and then look for corroboration if necessa .....

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nd satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible." In DDP v. Kilbourne, (1973) 1 ALL ER 440 it was observed thus: "There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter the better it fits in, the mo .....

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rroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence This rule of practice has become virtually equivalent to a rule of law, and since the Court of Criminal Appeal came into operation this Court has held that, in the absence of such a warning by the judge, the conviction must be quashed .....

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as accomplices are concerned and it is certainly not any higher in the case of sexual offences. The only clarification necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury. In these casesit is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particul .....

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nd of evidence which should or would be regarded as corroboration. Its nature and extent. must necessary vary with circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear. First, it is not necessary that there should be independent confirmation of every material circumstances in the sense that teh independent witness in the case, apart from the testimony of the complainant or the accomplice, should in itself be .....

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e independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be indep .....

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sed participated in it." Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it was contended that the mother in this case was not an independent source. Fourthly, the .....

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ed in respect of the bribery cases. In Rao Shiv Bahadur Singh and another v. The Slate of Vindhya Pradesh, 1954 SCR 1098 there are obser- vations to the effect that the evidence of the trap witnesses cannot be taken on its face value thereby indicating that their evidence cannot be relied upon without independent corroboration. In The State of Bihar v. Basawan Singh, AIR 1958 SC 500, a Bench of five-Judges considered this "corroboration requirement" and after referring to the observati .....

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ken at its face value. " We have taken the observations quoted above from a full report of the decision, as the authorised report does not contain the discussion with regard to evidence. It is thus clear that the decision did not lay down any universal or inflexible rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses. It is plain and obvious that no such rule can be laid down; for the value of the testimony of a witness depends .....

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the witnesses of the raiding party must be discarded, unless independent corroboration is available. " (emphasis supplied) This Court in the above case concluded thus: "The correct rule is this : if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses who are concerned in the success of the trap .....

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e additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it." In 1952 SCR 377 at p.385 : (AIR 1952 SC 54 at p.57 (B), to which we have referred in an earlier paragraph, the nature and extent of corroboration required, when it is not considered safe to dispense with it, have been clearly explained and it is merely necessary to reiterate that corroboration need not be direct evidence that the accused committed the crime; i .....

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n Singh's case, a Bench of three-Judges in Bhanuprasad Hanprasad Dave and another. v. The State of Gujarat, AIR 1968 SC 1323 held thus: "Now coming back to the contention that the appellants could not have been convicted solely on the basis of the evidence of Ramanlal and the police witnesses, we are of opinion that it is an untenable contention. The utmost that can be said against Ramanlal, the Dy. S.P., Erulker and Santramji is that they are partisan witnesses as they were interested .....

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8 = (AIR 1954 SC 322) that where the witnesses are not accomplices but are merely partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as any other interested evidence is tested and in a proper case, the court may look for independent corroboration before convicting the accused person. We are unable to agree that any different rule was laid down in E.G. Barsay v. State of Bombay (1962) 2 SCR 195 = (AIR 1961 SC 1762). It mus .....

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of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is cor- roborated in material particulars but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. But it may in appropriate case look for corroboration. In the instant case, the trial court and the High Court have fully accepted the evidence of .....

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State of Rajasthan, AIR 1969 SC 17 this Court after referring to Basawan Singh's case (supra) observed thus: "We are unable to accept the contention of the learned counsel for the appellants that PWs 1, 2,3,4 and 17 and other prosecution witnesses to whose evidence we shall presently refer, should be considered as accomplices and therefore their evidence is required to be corroborated in material particulars before being accepted. On the proved facts, even those who gave illegal gratifi .....

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so leads to the question whether all witnesses, who are called 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 had become acquainted makes him an accomplice or a partisan witness. In absence of anything to warrant a contrary conclusion, conviction is not untenable .....

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diate action on the complaint. Noth- ing unusual is suggested against him. We have no hesitation in accepting the testimony of PWs 3 and 7 on their own. They do corroborate the complaint." In Hazari Lal v. The State (Delhi Admn) AIR 1980 SC 873, Chinnappa Reddy, J. speaking for the Bench while repelling the contention that the evidence of trap witness namely the police officer should not be accepted unless corroborated observed thus: "We, however, wish to say that the evidence of P.W.8 .....

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he 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 by any precedential guidance. We are forced to say this because of late we have come across several judgments .....

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an accomplice. However, there is a rider in illustration (b) to Section 114 of the Act which provides that the court may presume that the accomplice is unworthy of credit unless he is corroborated in material particulars. This presumption is In the nature of a precautionary provision incorporating the rule of prudence which is ingrained in the appreciation of accomplice's evidence. Therefore the courts should be guarded before accepting the accomplice's evidence and look for corroboratin .....

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e is safe to be acted upon, the conviction can be based thereon. Even if corroboration as a matter of prudence is needed it is not for curing any defect in the testimony of the accomplish or to give validity to it but it is only in the nature of supporting evidence making the other evidence more probable to enable the court to satisfy itself to act upon it. 16.Now coming to the witnesses in trap cases, as held in Basawan Singh's case (supra) by a Bench of Five Judges, if any of the witnesses .....

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not as one required in material particulars as in the case of an approver. Therefore in seeking corroboration for the evidence of trap witnesses a distinction has to be drawn where participation of an individual in a crime is not voluntary but is the result of pressure. In such a case the element of mens rea to commit the crime is not apparent and cannot strictly be classified as an accomplice and at any rate be treated as being on the same footing. Where bribe has already been demanded from a .....

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f corroborating evidence that is required, it is well settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The court should weigh the evidence .....

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who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. However, it is cautioned that the evidence of a bribe-giver has to be scrutinised very carefully and it is for the court to consider and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon or not in those given circumstances. 18.Learned counsel appearing for A-1, however, placed reliance on .....

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who however did not say anything regarding the demand by the accused, held that the version of the complainant regarding the demand was not corroborated and his evidence can not be relied upon. The facts in Panalal Damodar Rathi's case (supra) are distinguishable namely that the panch witness who was also present with the complainant who is alleged to have given the money, did not say a word about the alleged demand and in that view of the matter it was held that there was no corroboration. .....

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