TMI Blog2015 (1) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... s-examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross-examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the public prosecutor this witness has accepted about the correctness of his statement in the court on 13.9.1999. He has also accepted that he had not made any complaint to the Presiding Officer of the Court in writing or verbally that the Inspector was threatening him to make a false statement in the Court. It has also been accepted by him that he had given the statement in the Court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13.9.99 after going through and admitting it to be correct. It has come in the re-examination that he had not stated in his statement dated 13.9.99 in the Court that recovery of tainted money was not effected in his presence from the accused or that he had been tol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, what afflicts the legally requisite criminal trial in its conceptual eventuality in this country the two reasons that may earn the status of phenomenal signification are, first, procrastination of trial due to non-availability of witnesses when the trial is in progress and second, unwarranted adjournments sought by the counsel conducting the trial and the unfathomable reasons for acceptation of such prayers for adjournments by the trial courts, despite a statutory command under Section 309 of the Code of Criminal Procedure, 1973 (CrPC) and series of pronouncements by this Court. What was a malady at one time, with the efflux of time, has metamorphosed into malignancy. What was a mere disturbance once has become a disorder, a diseased one, at present. 2. The instant case frescoes and depicts a scenario that exemplifies how due to passivity of the learned trial Judge, a witness, despite having stood embedded absolutely firmly in his examination-in-chief, has audaciously and, in a way, obnoxiously, thrown all the values to the wind, and paved the path of tergiversation. It would not be a hyperbole to say that it is a maladroit and ingeniously designed attempt to strangulate and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice. 6. In this regard, it is also fruitful to refer to the authority in State of U.P. V. Shambu Nath Singh (2001) 5 SCC 667, wherein this Court deprecating the practice of a Sessions Court adjourning a case in spite of the presence of the witnesses willing to be examined fully, opined thus: 9. We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial courts that witnesses who are called through su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place of the accused and a trap was laid. Eventually, currency notes amounting to ₹ 500/- were recovered from the trouser of the appellant and were taken into possession. The statements of the witnesses were recorded and after completing the investigation chargesheet was placed for the offences punishable under Sections 7 and 13(2) of the Act. 9. To bring home the charges against the accused-appellant, the prosecution examined eight witnesses. PW-1 to PW-4 are formal witnesses. PW-5, the complainant resiled from his previous statement and was cross-examined by the prosecution. Sher Singh, PW-6, a clerk in the office of Tehsildar, Rajpura had joined the police party as an independent witness. He supported the case of the prosecution in detail. Jagdish Verma, PW-7, in his examination-in-chief, supported the prosecution case in all aspects, but in cross-examination, resiled from his examination-in-chief. The witness, PW-7, was declared hostile on a prayer being made by the Public Prosecutor and was re-examined. Narinder Pal Kaushal, PW-8, DSP of Vigilance Bureau who had led the raiding party on 25.1.1995, in his deposition, deposed in detail about the conducting of the raid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hukar Bhaskarrao Joshi V. State of Maharashtra (2000) 8 SCC 571 and eventually came to hold that the prosecution had proven its case to the hilt and resultantly affirmed the conviction and order of sentence passed by the trial Court, but reduced the sentence of 2 years rigorous imprisonment to one year. 14. Criticizing the conviction as recorded by the learned trial Judge and affirmed by the High Court, it is submitted by Mr. Jain, learned senior counsel for the appellant that when the informant had not supported the case of the prosecution, it was not justifiable on the part of the learned trial Judge to record a conviction against the accused. It is his submission that on the basis of the testimony of PW-6 to PW-8, the conviction could not have been recorded, for Sher Singh, PW-6, is not a witness either to the demand or acceptance of the bribe by the appellant and further the version PW-7 requires careful scrutiny, regard being had to the fact that he is a hostile witness. It is also urged that the evidence of PW-8 deserves to be discarded as he is an interested witness. To bolster the aforesaid submissions, learned senior counsel has drawn inspiration from B. Jayaraj V. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra, would contend that the view expressed by the learned trial Judge and the High Court cannot be found fault with, for a conviction under the Act can be based on the evidence of trap witnesses, if they are trustworthy and the ingredients of the offence are satisfied and in the case at hand, the High Court on x-ray of the evidence has so recorded. It is urged by him that neither the learned trial Judge nor the High Court has fallen into error by applying the principle of presumption as engrafted under Section 20 of the Act. It is canvassed by Mr. Madhukar that the evidence of the hostile witness can be placed reliance upon by the prosecution and in the obtaining factual matrix, the testimony of PW-7, one of the shadow witnesses, renders immense assistance for establishing the case of the prosecution. He has with great pains, taken us through the evidence to substantiate the stand that the conviction recorded against the appellant is totally defensible. 19. Keeping in abeyance what we intend to say on the facet of anguish expressed by us in the beginning, we shall proceed to deal with the proponement of Mr. Jain that when the investigation conducted by Mr. Narinder Pal Kaushal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ap laid by them, but it cannot be said that they are accomplices. Thereafter, the Court proceeded to state that their evidence must be tested in the same way as any other interested witness is tested and in an appropriate case, the Court may look for independent corroboration before convicting the accused person. The three-Judge Bench reiterated the principle thus: ....It is now well settled by a series of decisions of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated 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 . 22. In MO Shamshuddin (supra), the Court, after referring to the decisions in DPP V. Hester (1972) 3 All ER 1056 and DPP V. Kilbourne (1973) 1 All ER 440, made a distinction between accomplice and an interested witness. The Court, referred to the authority in Basawan Singh (supra) at length and eventually adverted to the concept of corroborating evidence. In that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of those rare and exceptional cases where we find that several important circumstances have not been taken into account by the trial court and the High Court and that has resulted in serious miscarriage of justice calling for interference from this Court. We may first refer to a rather disturbing feature of this case. It is indeed such an unusual feature that it is quite surprising that it should have escaped the notice of the trial court and the High Court. Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been made by the appellant and he was the informant or complainant who lodged the first information report for taking action against the appellant. It is difficult to understand how in these circumstances Head Constable Ram Singh could undertake investigation of the case. How could the complainant himself be the investigator? In fact, Head Constable Ram Singh, being an officer below the rank of Deputy Superintendent of Police, was not authorised to investigate the case but we do not attach any importance to that fact, as that may not affect the validity of the conviction. The infirmity which we are pointing out is not an infirmity arising fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gwant Kishore Joshi AIR 1964 SC 221 , wherein it has been ruled thus: Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer in charge of a police station in respect of the commission of a cognisable offence. Section 156 thereof authorises such an officer to investigate any cognisable offence prescribed therein. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Section 157 prescribes the procedure in the matter of such an investigation which can be initiated either on information or otherwise. It is clear from the said provisions that an officer in charge of a police station can start investigation either on information or otherwise. 26. After reproducing the said paragraph, the Court proceeded to state thus: Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer who lodged the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the appellants could not point out any circumstances by which the investigation caused prejudice or was biased against the appellants. PW 8 in his official capacity gave the information, registered the case and as part of his official duty later investigated the case and filed a charge-sheet. He was not in any way personally interested in the case. We are unable to find any sort of bias in the process of investigation. 28. In the instant case, PW-8, who was a member of the raiding party had sent the report to the police station and thereafter carried the formal investigation. In fact, nothing has been put to him to elicit that he was anyway personally interested to get the appellant convicted. In our considered view, the decision in S. Jeevanatham (supra) would be squarely applicable to the present case and, accordingly, without any reservation we repel the submission so assiduously urged by Mr. Jain, learned senior counsel for the appellant. 29. The next aspect which requires to be adverted to is whether testimony of a hostile evidence that has come on record should be relied upon or not. Mr. Jain, learned senior counsel for the appellant would contend that as PW-7 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which arose in cross-examination. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions . 31. We have reproduced the aforesaid paragraphs to highlight that when the prosecution has such a right in the process of re-examination, as a natural corollary, the testimony of a hostile witness cannot be brushed aside. On the contrary, both the prosecution and the defence can rely for their stand and stance. Emphasis on re-examination by the prosecution is not limited to any answer given in the cross-examination, but the Public Prosecutor has the freedom and right to put such questions as it deems necessary to elucidate certain answers from the witness. It is not confined to clarification of ambiguities, which have been brought down in the cross-examination. 32. Mr. Jain, learned senior counsel has propounded that testimony of PW7 deserves to be discredited, and the learned trial Judge as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW 3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW 3, the presumption under Section 4(1) of the Prevention of Corruption Act is immediately attracted. 34. It is pertinent to note here that in the aforesaid case the decision rendered in Sita Ram v. State of Rajasthan (1975) 2 SCC 227 was pressed into service. In the case of Sita Ram (supra) the complainant had turned hostile in the court of Special Judge. However, the trial Judge convicted the accused who was tried along with another accused, namely, Vikram Singh. The High court on appreciation of the evidence acquitted Vikram Singh but maintained the conviction against Sita Ram. This Court opined that the presumption under Section 4(1) of the 1947 Act could not be drawn in the facts of the case. The question, whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complaint was not considered. The Court in Hazari Lal (supra) distinguished the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anti-Corruption Bureau. On the basis of the said complaint all arrangements were made for a trap to catch the corrupt public servant red-handed. Thereafter the Court adverted how the trap had taken place. The court took note of the fact that PW1 and PW2 made a volteface in the trial court and denied having paid any bribery to the appellant and also denied that the appellant demanded the bribe amount. The stand of the accused before the trial court under Section 313 of CrPC was that one Dr. Krishna Rao bore grudge and had orchestrated a false trap against him by employing PW1 and PW2. Be it stated, in his deposition PW1 had stated that he had acted on the behest of one Dr. Krishna Rao. It was further the stand of the accused-appellant that the tainted currency notes were forcibly stuffed into his pocket. The trial court and the High Court had disbelieved the defence evidence and found that PW1 and PW2 were won over by the appellant and that is why they turned hostile against their own version recorded by the investigating officer and subsequently by a Magistrate under Section 164 of CrPC. The Special Judge ordered the witnesses to be prosecuted for perjury and the said course sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrectly propounded therein. 37. In this regard Mr. Jain has placed reliance on the authority B. Jayaraj (supra). In the said case the complainant did not support the prosecution version and had stated in his deposition that the amount that was paid by him to the accused was with a request that it may be deposited in the bank as fee for renewal of his licence for the fair price shop. The court referred to Section 7 of the Act and observed as follows:- Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgment of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu v. C.B.I. (2009) 3 SCC 779 After so observing, the court proceeded to state thus:- In the present case, the complainant did not support the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t legitimately draw the presumption under Section 20 of the Act. Therefore the proposition, though industriously, presented by Mr. Jain that when Baj Singh, PW5, the complainant, had turned hostile the whole case of the prosecution would collapse is not acceptable and accordingly hereby rejected. 39. Presently, we shall refer to the evidence of PW6, a clerk in the office of Tehsildar, Rajpura. He has deposed that on 25.1.1995, on the day of the raid, he joined the police party headed by Narinder Pal Kaushal, DSP, on the instruction of Tehsildar. He was introduced to Baj Singh, the complainant and Jagdish Verma, a shadow witness. Thereafter, the complainant and the shadow witness, Jagdish Verma, were sent to the octroi post and he stopped at some distance along with Narinder Pal Kaushal who was waiting for signal and on receiving signal they went inside the octroi post. As per his testimony Narinder Pal Kaushal introduced himself as DSP and thereafter a glass of water was procured and sodium was added to it. Both the hands of the accused were dipped in the glass of water and the water turned pink. On search of the accused ₹ 500/- in the denomination of ₹ 100/- were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right side pant pocket of the accused. After making the arrangement for the pant of the accused, the right side pocket of the pant of the accused was dipped in the mixture of water and sodium and its colour turned light pink. It was also transferred into a quarter bottle which was duly sealed and was taken into possession vide recovery memo Ex.PJ. The pant was also taken into possession vide recovery memo Ex.PJ. The notes recovered from the accused were compared with the numbers mentioned in the memo and those tallied. The notes were taken into possession vide recovery memo Ex.PF. A sum of ₹ 310/- was recovered from the further search of the accused which was taken into possession vide recovery memo Ex.PK. Thus, from the aforesaid testimony it is absolutely clear that he has supported in entirety about the demand, acceptance and recovery of money. It is necessary, though painful, to note that PW7 was examined-in-chief on 30.9.1999 and was cross-examined on 25.5.2001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the re-examination. The evidence of PW6 and PW7 have got corroboration from PW8. He in all material particulars has stated about the recovery and proven the necessary documents pertaining to the test carried with phenolphthalein powder. The fact remains that the appellant s pocket contained phenolphthalein smeared currency notes when he was searched. It is apt to take note of the fact that the currency notes that have been recovered from the right side of the pant pocket were actually prepared by PW8 by smearing them with phenolphthalein powder. The appellant was caught red-handed with those currency notes. In is statement recorded under Section 313 of CrPC he has taken the plea that he is innocent and has been falsely implicated due to animosity. No explanation has been given as regards the recovery. Therefore, from the above facts, legitimately a presumption can be drawn that the accused-appellant had received or accepted the said currency notes on his own volition. The factum of presumption and the testimony of PW6 and 7 go a long way to show that the prosecution has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, Awake! Arise! . There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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