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Emperor Vs. Papa Kamalkhan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 11 of 1935
Judge
Reported in(1935)37BOMLR366
AppellantEmperor
RespondentPapa Kamalkhan
DispositionAppeal dismissed
Excerpt:
indian evidence act (1 of 1872), sections 133, 114, ill. (b) - accomplice evidence- corroboration-bribery cases.;the rule which requires corroboration of the evidence of an accomplice, applies with very little force where the accused is charged with extorting a bribe from other persons, the reason being that in the case of bribery the persons who pay the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about it. the objections as to the evidence of an accomplice do not apply where the alleged accomplice, that is, the person who pays the bribe, is not a willing participant in the offence, but is really a victim of that offence. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity -..........is for the statement of bapu saheb that accused no. 1 actually took the money. it is true that bapu saheb must be treated as an accomplice, and so must krishna, dadu and namu. but in cases of bribery the persons who pay the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about it. it is not possible to expect absolutely independent evidence about the payment of a bribe, and a distinction has to be made between persons who have voluntarily paid a bribe to a public servant in order to secure some advantage for themselves, and persons, such as krishna, dadu, and namu in this case, who have been compelled by improper pressure put upon them by a public servant to pay a bribe. in cases of this kind, where the payment of the.....
Judgment:

N.J. Wadia, J

1. [His Lordship, after narrating the facts of the case, proceeded :] We have to see what corroboration there is for the statement of Bapu Saheb that accused No. 1 actually took the money. It is true that Bapu Saheb must be treated as an accomplice, and so must Krishna, Dadu and Namu. But in cases of bribery the persons who pay the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about it. It is not possible to expect absolutely independent evidence about the payment of a bribe, and a distinction has to be made between persons who have voluntarily paid a bribe to a public servant in order to secure some advantage for themselves, and persons, such as Krishna, Dadu, and Namu in this case, who have been compelled by improper pressure put upon them by a public servant to pay a bribe. In cases of this kind, where the payment of the bribe has not been voluntary, very slight corroboration would, in my opinion, be sufficient to make the evidence of such persons admissible against the receiver of the bribe. As regards Bapu Saheb, it is true that he was not himself one of the persons concerned in the original offence of theft, and cannot, therefore, be said to have acted under compulsion. His evidence might perhaps be considered as needing somewhat stronger corroboration than the evidence of Krishna, Dadu and Namu, But even with regard to his evidence, I am of opinion that considering the position in which he stood as against the accused Sub-Inspector, it must be taken that he was acting under certain amount of compulsion. He was police patil of a village which was in the accused's jurisdiction, and had been told by the accused to help in the detection of the offence, and in persuading Dadu and Namu to produce the stolen property. It has been suggested on behalf of the accused that Bapu Saheb himself must have taken the whole or part of the money which was produced. The learned Sessions Judge and the assessors were not prepared to accept this suggestion, and I am not myself prepared to hold that the part which Bapu Saheb played in this case suggests that he himself took any share of the bribe. I would, therefore, consider that even a slight amount of corroboration would be sufficient to justify us in accepting Bapu Saheb's evidence against the accused, and there is, in my opinion, such corroboration. That corroborative evidence need not necessarily be with regard to the whole story given out by Bapu Saheb. It would be sufficient if it corroborated parts of that story. With regard to the demanding of the money by the accused, we have the evidence of Krishna, Dadu and Namu, and that evidence goes further than merely showing that accused No. 1 asked merely for the production of the stolen property. If the evidence of Dadu and Namu is to be believed, the accused must have demanded the money as a bribe, and not as stolen property which was to be produced and reported in the ordinary course to his superiors. Namu has said in his evidence that accused No, 1 called him out and said to him, 'If you pay me Rs. 1,000 I will see that you are free from the trouble.' This statement could only mean that accused No. 1 had demanded the money from Dadu and Namu as a bribe for hushing lip the offence. With regard to the receipt of money by the accused, although we have no direct corroboration of Bapu Saheb's statement that the accused had been informed that the bag containing Rs. 1,000 was in the bus, and that this bag was actually taken into the accused's house, we have certain evidence which suggests very strongly that the accused must have taken the money. Bandu Avate, who had also got into the bus by which the accused returned from Khambala to Vita, has stated that the bag containing the money had been placed by Namu in the bus, and that after some time accused No. 1, accompanied by two constables, got into the bus and drove away. It is, therefore, proved by this witness that the bag containing the money was in the bus by which accused No. 1 went from Khambala to his house, and it is difficult to believe that accused No. 1 could have been unaware of the fact that the money was in the bus. The suggestion made on behalf of the accused is that the money must have been taken by Bapu Saheb and by the three constables, and not by the accused. It is difficult on this theory to explain the accused's conduct. The evidence shows that the accused was aware of the fact that Krishna, Dadu and Namu were prepared to own up the offence 'and to produce the property. It was after they had expressed their willingness to do so that the accused sent them with Bapu Saheb and the constables to their own village to bring the money. It is suggested that when Dadu, Namu, and the constables and Bapu Saheb returned from Kalambi, the accused was informed by the constables and by Bapu Saheb that Dadu and Namu refused to admit the offence, and would not produce any property. It is difficult to believe that the accused could ever have accepted such an explanation, knowing as he did that Dadu and Namu had already confessed the offence to him and expressed their willingness to produce the money. It is also difficult to believe that such a false story could have been given out to the accused by his own subordinates in the presence of Dadu and Namu, who had produced the money apparently in order to induce the accused to hush up the offence. The accused's subsequent conduct with regard to the incidents of February 17 is also difficult to reconcile with the suggestion that he had committed no offence. He had, admittedly on his own showing, done a good deal of investigation in connection with this offence on the 17th. He had camped in Khambala for the whole night and had questioned several persons including Dadu and Namu. Yet he deliberately made a false or grossly inaccurate entry in the Station diary that nothing of importance had been found. One would have expected in the normal course that even if he had not been able to recover the stolen property which he had gone out to recover, lie would have left detailed notes in the station diary for the guidance of his successor with regard to what had happened on the night of the 17th. The entry which he made on the 18th is, in my opinion, difficult to reconcile with the theory of his innocence. It is equally difficult to explain the conduct of accused Nos. 2 to 4 and of Bapu Saheb Patil with the theory put forward by the accused. On that theory we have to hold that the accused's own subordinates, and Bapu Saheb, a village patil working under him, deliberately took the bribe under the very nose of their superior officer and without letting him know of it or giving him a share in it. The Rs. 1,000 which were produced by Dadu and Namu were all in silver. The evidence is that the bundle containing the rupees was carried by Namu to the bus. The bundle would not be a small or inconspicuous one. Yet it is suggested that this bundle was kept in the very bus in which accused No, 1 travelled from Khambala to Vita. It is hardly likely that such a bundle would escape accused's notice, or that accused Nos. 2 to 4 and Bapu Saheb could ever imagine that it would escape his notice. I may mention that this suggestion that the money must have been misappropriated by the constables and by Bapu Saheb was not put forward in the Sessions Court except at a very late stage.

2. There is, therefore, corroboration of Bapu Saheb's evidence with regard to the actual receipt of this money by accused No. 1 in the statement of Bandu that the bundle containing the money ^was in the bus by which accused No 1 left to go to his house, in the statement made by Namu that accused No. 1 demanded the money as a bribe, and in the conduct both of the accused himself and of the constables and of Bapu Saheb. Taking this evidence as a whole, there is, in my opinion, no room for doubt that the money was demanded and received by accused No. 1 himself as a bribe. His conviction, therefore, under all the three sections is justified. The sentence awarded by the Sessions Judge in default of payment of fine is in excess of that allowed by Section 65' of the Indian Penal Code. That sentence will have to be reduced to one of nine months' rigorous imprisonment. Subject to this modification, the convictions and sentences passed against the accused will be confirmed, and the appeal dismissed.

John Beaumont, Kt., C.J.

3. I agree. In my opinion, the rule of the Court which requires corroboration of the evidence of an accomplice as against each accused, if it applies at all, applies with very little force to a case like the present, in which the accused is charged with extorting a bribe from other persons. The objections which usually arise to the evidence of an accomplice do not really apply where the alleged accomplice, that is, the person who pays the bribe, is not a willing participant in the offence, but is really a victim of that offence. However, in the present case, I quite agree that there is ample corroboration of the direct evidence of bribery in the conduct of accused No. 1. I ignore the evidence given in the theft case, which, in my opinion, cannot be admitted as evidence in this case against the accused. But on the evidence properly admissible there can be no question that accused No. 1 arranged the meeting of February 17, and that that meeting was intended to lead to the production of property which had been stolen by Dadu and Namu, and there can be no question on the evidence that it was accused No. 1 who sent the party consisting largely of his own constables to recover the stolen property, and the Rs. 1,000 was in fact recovered by the constables and the rest of the party from Dadu and Namu. If we are to assume that accused No. 1 is innocent, then it follows that he was in effect robbed of the Rs. 1,000 by his own constables, who took the money back with them in the motor-bus in which the accused Sub-Inspector was actually travelling. Apart from the extreme improbability of that story, with which my learned brother has dealt, the conduct of accused No. 1 is quite inexplicable upon that basis. He made no further effort to recover any stolen property, he must have accepted the bare word of his constables and the rest of the party that the stolen property which had been promised to be handed over had not been handed over, and when he returned to his police-station, instead of making a report to his successor as to the circumstances of the case, he merely reported that nothing had occurred at this meeting, and took no efforts to enable his successor to proceed with the case. Such conduct is absolutely inexplicable, to my mind, except on the basis that in fact the Rs. 1,000 were recovered and were in the possession of accused No. 1. If that is so, there is no question but that he 'kept them for himself, and did not account for them. I agree, therefore, that -.the appeal must be dismissed.


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