Skip to content


Hazarilal Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 186 of 1972
Judge
Reported in10(1974)DLT197
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 162(1)
AppellantHazarilal
RespondentThe State
Advocates: D.R. Sethi and; D.C. Mathur, Advs
Cases Referred(Maj. Tara Chand Rampal v. State
Excerpt:
criminal - corruption - section 502 of prevention of corruption act - appellant convicted for offence of corruption - appeal against conviction - onus on prosecution to establish guilt - fate of decision not allowed to be controlled by manner in which witness narrate so as to render help to accused - it should be court's endeavor to search truth - evidence on record established guilt - court acted in accordance with law in convicting appellant - - it was explained to sri ram as well as to the witnesses. it was alleged that the raid having been carried out by inspector paras nath who was not competent to do that, inspire of the re-investigation the investigation temained bad in law. stated that he did not have a good hand writing in urdu and he had dictated the statements after.....p.s. safeer, j. (1) the appellant was tried by shri jagdish chandra, special judge, delhi who in terms of his judgment dated the 31st of october, 1972 convicted him under section 5(2) of sentenced him to two 'years rigorous imprisonment and to a fine of the prevention of corruption act, hereafter called 'the act' and rs. 500.00in default of payment whereof the appellant was to undergo rigorous imprisonment for another period,of three months. the special judge convicted the appellant also under section the indian penal code and sentenced him to two years rigorous imprisonment the sentences of imprisonment were to run concurrently. it is against that judgment that'the appellant has come up in appeal. (2) the prosecution case was that one sri ram had allegedly purchased scooter-rickshaw no......
Judgment:

P.S. Safeer, J.

(1) The appellant was tried by Shri Jagdish Chandra, Special Judge, Delhi who in terms of his judgment dated the 31st of October, 1972 convicted him under section 5(2) of sentenced him to two 'years rigorous imprisonment and to a fine of the Prevention of Corruption Act, hereafter called 'the Act' and Rs. 500.00in default of payment whereof the appellant was to undergo rigorous imprisonment for another period,of three months. The Special Judge convicted the appellant also under section the Indian Penal Code and sentenced him to two years rigorous imprisonment The sentences of imprisonment were to run concurrently. It is against that judgment that'the appellant has come up in appeal.

(2) The prosecution case was that one Sri Ram had allegedly purchased scooter-rickshaw No. DLR-5813 from L.Gobind Ram and had employed Ram Lubhaya as a driver. It was alleged that there was an incident off the 12th July, 1969 which involved the said vehicle and another. On account of the vehicle having been involved in the incident it was removed to police station Kashmere Gate. Sri Ram, its owner obtained orders from the Magistrate concerned directing that the scooter rickshaw be given back to him. When he went to the police station he was held by a head constable that the scooter rickshaw should be given back only on payment of Rs. 60.00. He then went to the Anti-corruption Branch the Delhi Police and made a statement on the 15th of July, 1969 before Inspector Paras the in which he stated that bribe had been demanded whereupon two witnesses were requisitioned in whose presence the statement made earlier by Sri Ram was read out. SriRam produced six currency notes of the denomination of Rs. 10.00 each, the numbers of those currency notes were noted and the same were treated with phynopatheilene powder.It was explained to Sri Ram as well as to the witnesses.meant to be included in the raiding party that whosoever touched the currency notes his hands would become polluted and when dipped in a solution of'sodium i carbonate the same would turn^ Sri Ram was instructed to pass on the bribe the presence of panch witnesses to the person who had demanded it. It was s titled that after the passing of the bribe the Inspector of Police would be informed in-the manner described in the raid report. The raiding party proceeded to police station Kashmere Gate. It may be notice that the appellant was in these days functioning as a constable of police and not as a head constable. Sri Ram accompanied by Ram Lubhaya and Kewal Krishan one of the panch witnesses went to pass the currency notes to the person who had demanded the bribe. The other panch witness Devinder Kumar was not sent Along with him. It is alleged that Hazari Lal appellant was in his room and when the six currency notes mentioned above were given to him he took them and put the same in the right hand side pocket oft his trousers. The Inspector of Police who had organized the raid was apprised of it and he then accompanied by the rest of the members of the raiding party entered the room where Hazari Lal was. On being alarmed by the raiding party the appellant allegedly took out some G. C. notes from the right side pocket of his pants and threw them across the wall in the adjoining room . what happened thereafter may be,noticed in terms of the deposition of inspector Paras Nath,P.W.8:-

'AT that time the accused was standing. I immediately instructed the police officials with me to rush to the adjoining room and to keep a watch of the G C. notes. Then I introduced myself to the accused^ and enquired of his name and particulars. Then I . took the accused to the adjoining room where the notes were lying down after having been thrown. At that time one of these G. C. notes was lying on the table of duty officer, Sub-lnspector Shankar Lal while the other G. C. notes were lying fallen on the ground neat the chair of the duty officer I collected all the G. C. notes in the presence of the witnesses and the rest of the raid party. The numbers of these G C. notes' were compared by me and the, witnesses and the same tallied. I took into possession all those G. C. notes Vide memo Ex.P.W.2/A. l then challenged the accused if he had accepted the bribe whereupon the accused denied the demand by 'him but regarding acceptance he kept mum. Then we went to the room of the S.H.. 0. nearby. There I prepared the solution and both hands of the accused were dipped the rein 'and the solutions turned its colourless shade to pink. That solution was transferred to bottle Ex. P.W. 2 which was then labelled, sealed and taken into possession vide memo Ex. P. W. 4/A. Ely means of the same memo I also took into possession handkerchief Ex. P. 4 from the right side pocket of the pants of the accused the pants Ex.P. Ii of the accused as also the bottle Ex. P. 3 containing the wash of the inner lining of the right side parts pocket of the accused as also the wash Each of these wash were prepared separately in the solution of sodium carbonate .by dipping the inner: lining and the hands of the accused. The handkerchief and the pants. were taken into possession uide memo Ex. P.W. 4/B. The personal search of the accused was conducted vide memo Ex. P.W/8/A.,All these bottles were labelled and sealed at the spot and initialed by the P.Ws correctly prepared the rough site plan Ex. P.W. 8/B. I completed the raid. report portion Ex. P. W.8/Cand sent to the P.S. Kashmere Gate for the registration of the case.

(3) It may be mentioned that after the prosecution was launched permission was sought to withdraw it and on the 27th of July, 1970 the trial' Court permitted there-investigation of the crime. P.W.9Shri S. C. Katoch, a Deputy Superintendent of Police in the Anti-corruption Branch of the Delhi Police when examined before the Court below stated that he re-investigated the case. When the fresh challan was put in Court an application was filed on behalf of the appellant before the then Special Judge Shri M. L. Jain which is on page 47 of the original record. It was alleged therein that a re-investigation having been ordered the prosecution had submitted a supplementary challan but that the re-investigation had been completed by an Inspector and not by the Deputy Superintendent of Police. It was also stated that the 'statements of the prosecution witnesses recorded under section 161 of the Criminal Procedure Code were the same as those recorded by the Inspector in the previous investigation. It was alleged that the raid having been carried out by Inspector Paras Nath who was not competent to do that, inspire of the re-investigation the investigation temained bad in law. Theprayer,was in view of the above mentioned submission it is prayed that this honble Court may amend the charge so as to drop the section 161 in the Indian Penal Code.' At one stage I felt it necessary to examine Public Witness PW3 Sri Ram the complainantat whose instance the raid was organized and Shri S. C. Katoch inorder to find out that there had been really a re-investigation or not and they were examined. Public Witness PW3 Sri Ram asserted that he had never been examined by Shri S.C. Katoch. Shri S. C. Katoch, however, was equally vehement that he had interrogated Sri Ram and had re-investigated the case. He. stated that he did not have a good hand writing in Urdu and he had dictated the statements after interrogating the witnesses which were re-recorded under section 161 of the Criminal Procedure Code and the same were signed by .him. While seeking satisfaction in respect of that controversy I have come across the statement of Public Witness PW4 Devinder Kumar made on the 5th of July 1972 in which he stated that after about a year of the raid he had been called to the Anti-corruption office where his statement regarding the occurrence was re-recorded by a Deputy Superintendent of Police. Anti-corruption whose name he mentioned as Shri S. C. Katoch. It is to be not iced that appearing as Public Witness PW9 at the trial Shri S.C. Katoch staled that he had recorded the statement of the complainant which was Ex. Public Witness PW3/B and that of Ram Lubhaya which was Ex. Public Witness PW6/B. The statement made by Devinder Kumar was 'proved as Ex.PW9/ and that of Kewal Krishan as Public Witness PW9/B.1 have Carefully perused the statements recorded by Shri Paras Nath Inspector of Police under section 161 of the Criminal Procedure Code, hereafter called the Code' and those recorded under the said provsion by Shri S.C. Katoch. There is no merit in the argument that the statements are identical. A close comparison shows that different words have been used in the course of recording the statements. The witnessses were of course telling on both occasions 'whatever was known to them.The statements in respect of the same occurrence were bound to be similar to each other. I may observe that the imposition by section 5-A of the Act is that the offences mentioned therein areto.beinvesugatedbythe officials who may be duly authorised within its perview. The investigation, however, is always of an offence after it has been committed. The commission of offences by the accused came into being only after the alleged acceptance of the bribe. All that was done byinspector Paras Nath before that did not incur any disability tinder section 5-A.

(4) Lam satisfied that after the trial Court passed its order on the 27th of July, 1970 permitting the re-investigation of the case Shri S. C.. Katoch the then Deputy Superintendent of Police functioning in the Anti-corruption Department of Delhi Police did re-investigate the case. After obtaining fresh sanction as evidenced by Ex.P.W. 1/A fresh proceedings were initiated in consequence whereof the appellant was tried and convicted.

(5) In order to prove the case against the appellant apart from P.W. 8 Inspector Paras Nath the prosecution examined seven witnesses. P.W. 1 proved Ex. P.W. I/A, the sanction given by the ^Superintendent of Police (North) for prosecuting the appellant. He was not cross-examined. P:W. 2 shankar Lal stated that he was present in his room. on the 15th of July, 1969 inpolice station Kashmere Gate when some G.C. notes of Rs.lO.00 each fell on his table from the North side. On the North side was the room occupied by the Investigating Officers of the police station. According .to him, one of the currency notes fell on his table while the ^others fell on the ground. Between the portion of the room in which he was sitting and the other there was a 5 feet high wooden partition wall. Just after the currency notes fell in his portion of the room two officials immediately entered it stating that they belonged to the Anticorruption Department. After that Inspector Paras Nath Along with others entered his room. He lifted the currency notes and prepared the recovery memo Ex. P.W.2/A which was signed by the witness. According to P.W. 2 Hazari Lal was in those days attached with Sub-Inspector 0m Parkash and used to help him in investigating the cases, 0m Parkash Sub-Inspector appeared as P, 5. inspire of the confusion which P W. 3 Sri .Rami complaint tried to regarding the identity of the accused the statement made by P W. 5 established that it was Hazari Lal who had accompanied Mitt on the 12th of July, 1969 to the place of incident and had brought the three wheeler scooter to the police station. He deposed :-

'ON12th July, 1969 I was Night Emergency Duty Officer at- P. S. Kashmere Gate and on the said date on receipt of Information from Control Room about an accident near Jamna Bridge in the might I accompanied with the accused went to the spot. At the spot I found that a scooter rickshaw and a horse cart (tonga) were at the spot and they had met with an accident. The owners of that scooter rickshaw and the tonga were not available there. I had brought horse and tonga with me in the police station while the accused had brought the-three wheeler auto with the help of someone in the police station.'

There after he was approached by P.W. 3 Sri Ram whose scooter rickshaw had been allegedly involved in the incident with an application on which P.W. 5 made the report. Proceeding further P.W. 5 stated;- When the complainant had brought his application for the return of scooter to me the accused was present in the police station. it is the statement of P.W. 3 Shri Ram which has to be carefully considered. He had contacted P.W.8 Inspector Paras-Nath who was then functioning with the Anticorruption Brancn of the Delhi Police. On the 15th of July, 1969 he had made the statement that Rs. 60.00 were being demanded as bribe for returning the scooter rikshaw belonging to him. It was his statement recorded by P. W. 8 which persuaded Inspector Paras-Nath to organize the raid. P.W.3 had accordiag to P. W. 8 produced before him six, (3. C. notes of Rs. 10.00 each the number of which had been correctly recorded in the raid report Ex. P.W. 3/B. At the trial P. W. 3 tried to create confusion by making certain statements and his evidence is to be appreciated in the light of the replies elicited.after utilizing the proviso contained in section 162 of the Code. In the course of the investigation applice-officer is authorised to record the slatements of such witnesses who may be knowing any facts relevant to the occurrence. Section 162 in the Code, is :- S. 162. Statements to Police not to be signed Use of statements in evidence.-(1). No statement made by any person to a police-officer in the course of an investigation under tins Chapter shall, if reduced into writing, be signed by the person making it; Dot shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the Banner provided' by section 145 of the Indian Evidence Act, 1872, and when any part of such statement is so used, any part thereof may also be used, in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within: the provisions of section 32, clause (1) of the Indian Evidence Act, 1872, or to affect the provisions of sectipn 27 of that Act.' The opening part contains the prohibition that no statement or any part thereof made by any person to a police officer if reduced into writing shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time of recording of such statement except in accordance with the express provisions permitting the use thereof The^proviso to sub-section ' (1) of section 162 is the provision with which J become concerned. Within t he ambit of the proviso the statement or any part of it if duly proved can beused by the accused and with the permission of the Court by the prosecution- to contradict the witness in the manner provider by section 145 of the .Evidence Act, 1872. When any part of such statement is so, used any other part thereof can also be used for re-examination in order to obatain Explanationn in respect , any -matter to which the cross-examination may be referring^ Section 162 has ^a long history. The proviso itself has undergone many changes. The history of the proviso and its scope have been thoroughly discussed in the/judgment by which Criminal Appeal no. 93 of 1972 (Maj. Tara Chand Rampal v. State was disposed of on the 15th of February, 1974. It would be sufficient to observe that there is no postulation in the proviso that it may be utilized only to impeach the credit of the witness. When does the occasion arise for using the proviso? It arises when in the course of recording evidence the Court has already recorded a statement which deserves to be challenged by resorting to the proviso. If the accused or the prosecution find that the statement made in Court by the witness contains a departure from his statement recorded under section 161 of the Code then within the limitations of the proviso the statement made under section 161 by the witness may be used to bring on the record the version of the occurrence given by the witness at the earliest at the time he made the statement in the course of the investigation, The purpose is to bring on the record both the versions in order to enable the Court to consider them. Along with all other evidence which may be adduced at the trial. The statement which the accused may make under section 342 of the Code is also to be taken into consideration. In the case of P. W. 3 Sri Ram .it stands proved that after the reinvestigation had been permitted P. W. 9, recorded his statement under section 161 of the Code which was proved at the trial as P.W. 3/B on the 23rd of October, 1972.' In his examination-in-chief P. W. -9, D.S.P., S.C. Katoch, stated

'THEc.ase was thereforee withdrawn from the Court of Shri M. L. Jain, Special Judge, Delhi and during re-investigation I recorded the statement of the complainant Ex. P. W.3/B, of Ram Lubhaya Ex. P. W. 6/B, of Devinder Kumar P. W. 9/A, of Kewal Krishan P.W.9/B and that of S.I.Shanker Lal. 0m Parkash Tiwari and after obtaining fresh sanction vide Ex. P. W. I/A I submitted the challan in the Court for trial of the accused.' The accused did not take the stand in cross-examination that. the witnesses had never been called by Shri S. C. Katoch for inteprogating them in order to comply with the direction to re-investigate the case. The entire cross-examination of P. W. 9 may be noticed :-- Presides recording the statements of the above mentioned P. Ws. I did not do anything else in the re-investigation. I did not visit the spot nor did I prepare any site plan.I did not see the previous order of the Court of Shri M. L.Jain. It is incorrect to suggest that I only read out their previous statements and on their saying 'yes' lrecordedtheirstatements.'

As is visible from the last sentence in his deposition in cross-exam^ nation what was suggested to Public Witness PW9was that he had really called the witnesses mentioned in examination-in-chief but instead of interrogating them had read out their previous statements and on their saying Yes he had merely re-recorded them. It is proved beyond doubt that Public Witness PW3 and the other witnesses montioned in the examination-in-chief of Public Witness PW9 were in fact called by him and were interrogated in the course of re-investigation of the offence. ^The argument that the case was never re-investigated is without merit. As already observed I have compared the statements of witnesses recorded by Inspector Paras Nath with those recorded by Public Witness PW9, D.S.P., S.C. Katoch. The words employed in the statements differ. I may now proceed to consider the evidence of Public Witness PW3. In his examination-in-chief the principal prosecution witness narrated how the scooter rickshaw bearing registration No. DLR.5813 belonging to him driven by Public Witness Pw Ram Lubhaya after being involved in an accident was removed to the police station. He stated that in consequence of the orders obtained from the Magistrate for the return of his scooter- rickshaw he had gone to the police station where a Hawaldar told him that it would bereturned only on payment of Rs. 60.00 by way of bribe. At the trial Public Witness PW3 denied that the accused in the dock was the person who had demanded the bribe. He admitted that he had contacted the Anti-corruption Branch and that his statement Ex. Public Witness PW3/A was reduced to writing. He described how the raid was organized and the six currency notes of Rs, 10.00 each produced by him were treated with phynolpatheine powder for passing them on to the person who was to take the bribe. Two persons had been requistioned as witnesses to the raid. They were Devinder Kumar and Kewal Krishan. According to Public Witness PW3 Kewal Krishan accompanied him when he went to the Police station, to pass on the bribe. Finding that the Hawaldar who had demanded bribe was not present Public Witness PW3 allegedly came back and told the Inspector that the person to whom the money waste bepassed was not there. He was instructed that the money should be passed on to anyone present who may be prepared to take it. Proceeding further, Public Witness PW3 stated ;-- 1. Ram Lubhaya and Krishan Kumar again went to inside the P.P. where we found the accused now present in the dock present- in the P.P. I then told the accused to take the sum of Rs. 60.00 from me and return to me my scooter rickshaw. I was holding that sum of Rs. 60.00 in my left hand and I forwarded my hand towards the accused pocket i.e. towards the pocket of his pant for handing over that amount of Rs. 60.00 but the accused told me to pay that amount to the person for whom .it was ment, and refusing jerked off my hand with his band, as aresult of which the G.C. notes which were in my hand were flung away across the wall, which was about 4^ ft. high. ' Although Public Witness PW3 was trying to give a version favorable to the present appellant he emphatically affirmed that the sum of Rs. 60.00 was positsvely offered to the present appellant who was standing trial. It was the appellant towards whom Public Witness PW3 advanced his hand containing the money. It was the appellant who according to Public Witness PW3 refusing the money jerked off his hand as a result of which the G.C. notes were flung away across the wall. It thereforee remains established that the inci- dent described in the deposition reproduced above took place as between Public Witness PW3 and the present appellant. Pw 3 proceeded to state that he had told the Inspector that the accused had neither demanded the amount from him nor accepted any amount and that the' accused had refused to take the money from him. Having gone that far the witness stated:- ''The Inspector and the police official went to the other side of the wall and brought back the G.C. notes. The Inspector then took the accused to the room of the S.H.O.Along with me, Ram Lubhaya and Krishan Kumar. The G.C. notes of Rs. 60.00were placed by the Inspector on the table and there after he subjected ^ the accused to personal search, as a result of which one hand-kerchief and some change was recovered from the front pocket of hisJ pant. The said hand-ker-chief and the hands of the accuied and the above mentioned front pocket of the pant of the accused were separately dipped in the solution of sodium carbonate which turned their colour and shade to pink. Those solutions were transferred to bottles Ex. P. I, Ex. P. 2 and Ex. P. 3 respectively. These bottles were then sealed.' Why did the official who had organized the raid after being apprised that the accused had refused to accept the bribe, proceed to take further steps by way of collecting the currency notes and taking into possession the hand-ker-chief which Along with the hands of the accused as well as the front pocket of his pant was dipped in the colourless solution of sodium carbonate which turned pink? The question finds its answer in the evidence elicited by cross-examining P.W.3 by invoking the proviso in section 162 of the Code. After obtaining permission from the trial Court the Public Prosecutor crossexamined the witness, who answered :- . 'It is wrong to suggest, nor did i state before the police that the said police official who had demanded bribe from me was later on learnt by me as Hazari Lal constable (confronted with portion D to D of mark Ex. Public Witness PW3/B where so recorded). It is wrong to suggest that I told the constable Hazari Lal that I had brought his demanded amount of Rs. 60.00 and that he should come out to receive the payment of the prudence of that driver, nor did I so state before the police confronted portion E to E of markEx.PW3/B where so recorded). It is also wrong to suggest that thereupon constable Hazari Lal came out of his room and I handed over to him currency notes of Rs. 60.00 polluted with powder in the presence of Kewal Krishan and Ram Lubhaya driver and that amount of Rs. 60.00 was actepted by constable Hazari Lal in his right hand and then put the same in the right side pocket of his pant, nor did I so state before the police (Confronted portion F to F of Public Witness PW3/B where so recorded.) It is also wrong to uggest that after accepting this money constable Hazari Lal went inside his room and started perusing some? papers on the table and I stood near the door of the room and oa seeing the Inspector and the witnesses coming there constable Hazari Lal took out the above mentioned currency notes from the pocket of his pant and threw them across the wall in the adjoining room which is known as Reporting Room, nor did I so state before the police (Confronted portion G to G of mark Public Witness PW3/B where so recorded.) It is wrong to suggest that the Inspector washed his hands in the room of the .S.H.O.^ nor did J state so in the statement of police (Confronted portion K to K of mark Public Witness PW3/B where so recorded.)' The exhibited portions in Ex. Public Witness PW3/B to the extent being contradictions becaaie evidence within the proviso contained in section 162. According to the prosecution version at the time when Public Witness PW3 went along to pass the amount of Rs. 60.00 to the accused he was accom- panied by Kewal Krishan and Ram Lubhaya. Kewal Krishan was not produced at the trial and I have gone through the statement of the Public Prosecutor on page 241 of the trial Court's proceedings in which he stated. 'I give up Shri Kewal Krishan P.W. one of the panch witnesses of this case, as he is reported to be mentally deranged as confirmed from his office and there it is no use putting him for making his statement in Court as he is unable to do so. A report of his mental -derangement is also made on the summons dated 14th September 1972.' : I hold that no presumption can be raised against the prosecution version on account of the non-production of Kewal Krishan. Ram Lubhaya was the only other person who had accompanied P. W. 3 at the time of allegedly passing the bribe. He supported P. W. 3 in his examination- in-chief and stated:- 'The accused now present in the dock was sitting in the police station in a room. Sri Ram then told the accused to accept Rs. 60.00 and then pay the same to the Hawaldar who had demanded that money, and asked the accused, to return the scooter. Sri Ram was holding the sum of Rs. 60.00in his left hand and when he advanced his hand towards the pocket of the- accused, the accused jerked off the same as a result of which the' sum of Rs. 60.00 fell across the ' I wall.' P. W. 6 was also cross-examined by the Public Prosecutor after obtaining the permission from the Court. While deposing within the ambit of the proviso contained in section 162 of the Code, he stated:- 'It is incorrect to suggest that Sri Ram gave the bribe amount to Hazari Lal accused present in the Court after taking out the same from his pocket in the presence of -Kewal Krishan and myself which the accused accepted in his right hand and kept the same in the right pocket of his pants nor did I so state before the police. (Confronted with portion J to J of Ex.P.W.'6/ and B where so recorded:' The evidence of witnesses like P. W. 3 and P. W. 6 who change their versions has to be weighed with utmost caution. In order to conclude whether the guilt in a particular case has. been established or not the Court has of necessity to find corroboration of the testimony of hostile witnesses. An unchallenged circumstance established by evidence may provide the basis for finding out as to where the truth lies. The fate of a decision cannot be allowed to be controlled by the manner in which a Witness may at the trial try to narrate the occurrence so as to renter some help to the accused. Whatever the state of evidence it will 'be--the Court's endeavor to search for truth. Where evidence on the record establishes that the guilt has been brought home to the accused the Court will be acting in accordance with law in convicting him. , ; ' Bearing these principles in mind the evidence of P. Ws. 4,5 and 8 has to be carefully appreciated. P. W. 4 gave the details pertaining to the carrying out of the raid and made a significant statement which was not challenged when he was cross-examined. The deposition, was 'On seeing Inspector Paras^Nath the accused got suspicious and he threw away the G.C. notes across the wall in the other room aftertaking out those G.C. notes from the right side pocket of his pants.' The unchallenged testimony contained in the statement reproduced above established that on seeing the Inspector of Police the appellant threw away the G. C. notes which he possessed across the wall after taking them out of the right hand side pocket of his pant. If the appellant had not accepted the bribe and had jerked off the hand of P. W.3 Sri Ram then the currency notes would have never found their way into his pocket. There.would have been no occasion for taking then out and throwing them across the wall. Proceeding further the witness narrated as to wheat happened when they went to the room where the currency notes thrown by the appellant were lying :- 'We went to that room at the asking of Inspector Paras Nath to take care of the G. C. notes one of those G. C. notes was found fallen on the table of Duty Officer who was present in that room while the remaining G. C. notes were found scattered on the ground. The Duty Officer on learning about the arrival of the raid party at once left his seat and stood by our side. The police official in the raid party then picket up those G.C. notes. Inspector Paras Nath then compared the numbers of those G. C. notes with the numbers in the raid report and, the same tallied when the entire raiding party went inside the room of S. H. 0. Hazari Lal accused was called there.' The witness also deposed regarding the taking out of the hand-ker-chref Ex. P. 4 from the right side pocked ' of the pant of the accused and its being dipped insodium carbonate solution which then turned pink. In his cross-examination, he affirmed :- 'It is correct that before dipping the hands of the accused, his hand-ker-chief and right pants pocket dipped into the solution. Inspector Paras Nath had already washed his own hands. It is correct that both the hands of the accused were dipped in the solution of sodium carbonate and not only his right hand asstated deposed to by me above. It is correct that D. S. P. who recorded my statement in anti-corruption after a year of this trap was S. C. Katoch^ The witness affirmed that his statement had been recorded under section 161 of the Code by the D. S. P. during the re-investigation of the crime. The witness was emphatic that Inspector Paras Nath had washed his own hands before dipping the hands of the accused and his hand-ker-chief and the right pant pocket in the colourless solution,of sodium carbonate which then turned pink. P.W.5'a testimony which has been 'noticed in the earlier part of the judgment affirmed that on the night of 12th July, 1969 Hazari Lal had gone to the site of the accident between the scooter and horse cart (tonga) and had brought the scooter rikshaw to the police station. P.W.4's-deposition established that the currency notes 'offered as bribe were taken out by Hazari Lal from his pocket on seeing the Inspector and the same were thrown across the wall. The link created by.the statement of P. W. 4 provides a key to the determination as to whether the accused had really accepted the bribe or not. The offence committed by the accused was covered by section 161 of the Indian Penal Code as well as section 5(2) of the Act read interms of clause (d) in section 5(l) thcreof. The prosecution succeeded inestablishing by the bare testimony of P. W. 4 that the very currency notes which were given to P. W. . 3 Sri RaM for being passed on to the culprit were taken out by Harati Lal out of his pocket Hi the presence of the said witness and the thrown across the wall. . Presumption under section 4(1) of the Act irresistibly arose against the appellant. The appellant was to discharge the presumption by establishing that the version given by him was preponderantly probable. The testimony of P. W. 8 Paras Nath can be accepted to the extent that he correctly recorded the statement of P. W.3 Sri Ram on account of which he organized the raid. He correctly recorded the numbers of the currency notes in the raid report Ex. P. W. 3/B. There is no reason for disbelieving his statement that ' on seeing the raiding party the accused took out some G. C. notes from the right side pocket of his pant-and threw them across the wall. The answer given by the appellant to question No. 14 in the course of his statement recorded under section 342 of the Code, may be re- produced:- Q. No 14. Have you anything else to say Ans. The correct facts are that I was attached to S.I. 0m Parkashas his orderly for carrying out service of summons etc. On - the day of the incident I was sitting in his room as S. I. 0m Parkash - was away. Sri Ram came to the room and finding the head constable not present there asked me to accept Rs. 60.00for payment to the head constable and return the three wheeler scooter to ^ him.^ I told him that I have nothing to do with the three wheeler scooter and that I was not prepared to accept this money on behalf of the head constable. He the advanced his hand towards me. I voilently pushed his hand containing notes and the notes went flying towards the reporting room. I also abused him for behaving in this manner and there atened to beat him and asked him to go away. He - then went away and shortly after Inspector Paras Nath Along with otherscame there and arrested me and concocted this case against The statement made under section 342 can be taken. into consideration in terms* of sub-section 3 .therein. In the afore-quoted answer Hazari Lal admitted that he was attached with Sub-Inspector 0m Parkash as his orderly. Sub-Inspector 0m Parkash was the person who had deposed as P. W. 5 that on the night of the accident 'Hazari Lal had accompanied him and brought the concerned scooter rikshaw to the police station. Another aspect in the afore-quoted answer is that Sri' Ram admittedly approached Hazari Lal for accepting Rs. 60.00. Hazari Lal according to his statement refused to accept the same and when the same were offered he voilently pushed Sri Ram's hand on . account of which .the notes went flying towards the reporting room and shortly thereafter Inspector Paras Nath.Along with others came on the scene. If that had been true then the currency notes would never have found their way into his pocket and there would have been no occasion for P. W. 4 to testify that on seeing Inspector Paras Nath, Hazari Lal had taken them out of the right side pocket of his pants and thrown them across , wall. It is not shown that the said witness were for any reason inimical to the appellant. P. W. 8's deposition corroborates the version given by P. W. 4. In a case like the present one the complainant may be. classified as the most interested witness. The police official who organizaes the raid ^ also has some interest that the raid should succeed. The evidence of the panch witnesses would, however, fall in a different category P.W. Devinder Kumar had no axe of his own to grind. In his presence as stated .by him on oath the appellant took out the very currency notes The Rent Controller, Delhi out of the right side pocket of his pant which were earlier given by Paras Nath to P.W.3 Sri Ram aftertreating them with the powder for being passed on to the person demanding the bribe. An over-all appreciation of evidence on the record .leads to the conclusion that the prosecution succeeded in bringing home the guilt to the accused, The defense version did not contain even an iota of veracity. There is no justification for interfering with the conviction or the sentence imposed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //