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M.O. Shamsudhin Versus State of Kerala

1995 (3) TMI 488 - SUPREME COURT

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. No. 7/89 on the file of the Enquiry Commissioner and Special Judge, Thrissour and they have been found guil .....

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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 concurrently. The appeals filed by them were dismissed by the High Court. Since it was a common judgment of the .....

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tted 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, to enquire about the issuance of patta. P.W. 2 met A-2 who told him that issuance of patta would entail some .....

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lin 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 nearby. P.W. 1 gave the amount to A-2 who put Me same in his pant pocket. P.W. 2 also was there at that time. P .....

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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 that he demanded ₹ 500/- by way of bribe. He stated that when P.W. 1 met him A-2 was not there. He furth .....

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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/- alone was paid to him on 9.6.87. On 10.6.87 at about 4 P.M. while he was in the office of A-1 seeking permission .....

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re 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 effort to exculpate A- 2 while P.W.2 gave evidence against A-2 in such a way exculpating A-1. The was however .....

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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 U.R. Lalit, learned senior counsel appearing for A-2 submitted that explanation given by A-2 has to be accep .....

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leged 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 his chief examination deposed that P.W.2 who is his close relation, went to the office of A1 and found out th .....

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ning 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 department. Accordingly in the afternoon he and P.W.2 went to Dy.S.P. and gave the statement Ex.P.4. Then he gave .....

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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/ - for issuing the patta but it is specifically mentioned that a little later he and P.W.2 were called to th .....

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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. But they told him that they are poor people. A-2, however, told that atleast ₹ 500/- should be given .....

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ave 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 witness was treated hostile and in the cross-examination he denied having mentioned certain facts in his earlie .....

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o 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 cases of briefly, we would like to examine the scope, nature and extent of corroboration that is necessary i .....

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st 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 testimony of an accomplice is not illegal though an accomplice may be unworthy of credit for several reasons. Reading .....

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ce 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 confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public .....

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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 in order that the trap succeeds he has to give the money. There could be another type of bribe giver who is .....

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his 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 necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having .....

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redible." 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 more one is inclined to believe it. The doubted statement is corroborated to a greater or lessor extent by the .....

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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 If after the proper caution by the judge the jury nevertheless convict the prisoner, this Court will not quas .....

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rification 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 particula r case before him and show why he considers it safe to convict without corroboration in that particular cas .....

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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 sufficient to sustain conviction. As Lord Reading says- "Indeed, if it were required that the accomplice .....

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y 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 independent evidence which will make it reasonably safe to believe the witness's story that the accused was th .....

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ly 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 corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is mer .....

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54 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 observations made in Rao Shiv Bahadur Singh's Case (supra) explained them in the following manner: "If the wi .....

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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 on diverse factors, such as, the character of the witness, to what extent and in what manner he is interested .....

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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, their evidence must be tested in the some way as other interested evidence is tested by the application of .....

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y 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; it is sufficient even though it is merely circumstantial evidence of his connection with the crime." In a .....

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t, 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 in the success of the trap laid by them. It cannot be said and it was not said that they were accomplices. Th .....

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esses, 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 must be remembered that the decision in Basawan Singh's case, 1959 SCR 195 = AIR (1958 SC 500) was given by .....

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e 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 Ramanlal, the Dy. S.P. Erulker and Santramji. That being so, it was open to them to convict the appellants so .....

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us: "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 gratification to the appellants cannot be considered as accomplices as the same was extorted from them. Though P.Ws. .....

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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 merely because it is based on the testimony of such a witness. We are also not prepared to dub every witness .....

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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 is entirely trustworthy and there is no need to seek any corroboration. We are not prepared to accept the su .....

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n 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 of Courts of Session of sometimes even of High Courts where reference is made to decisions of this Court on m .....

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e 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 corroborating evidence. The discretion of the court upon which the rule of corroboration rests must be exercised in a sou .....

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e 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 are accomplices who are particeps criminis in respect of the actual crime charge, their evidence must be tre .....

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n 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 man and if without giving the bribe he goes to the police or magistrate and brings them to witness the paymen .....

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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 and then see whether corroboration is necessary. Therefore as a rule of law it cannot be laid down that the e .....

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pendent 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 the judgment of this Court in Panalal Damodar Rathi v. State of Maharashtra, (1979) 4 SCC 526 wherein it was .....

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nt 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. But it must be borne in mind that corroboration can be by way of circumstantial evidence also. In the instan .....

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