1. The appellant Manilal Harchand Mehta who was the accused in the lower Court was charged before the Special Judge, Kutch (Sri S. H. Sanghvi) with offences under S. 5(2) of the Prevention of Corruption Act, 1947, and S. 161, Indian Penal Code. The charge was that on or about 22 August 1964 at about 10.30 a.m. at Bhuj in Kutch district, the appellant was a public servant working as revenue circle inspector in Bhuj taluka and he directly accepted Rs. 400 from Naran Karsan of village Anandsar as illegal gratification other than legal remuneration as a motive for doing an official act and thereby committed the offence of criminal misconduct in discharge of his duty punishable under S. 5(2) of the Prevention of Corruption Act and under S. 161, Indian Penal Code. He was, as we just stated, convicted under both these counts. On the first count he was sentenced to suffer rigorous imprisonment for one year and a fine of Rs. 500 in default of payment of which to undergo further rigorous imprisonment for three months and on the second count he was sentenced to suffer rigorous imprisonment for one year. The substantive sentences were ordered to run concurrently. Against those convictions and sentences he has come in appeal.
2. The complainant in this case was one Naran Karsan of village Anandsar. It is proved in the evidence and undisputed that in or about the year 1960 the said Naran occupied unauthorizedly about three acres of Government land situated at Anandsar. A revenue case appears to have been filed against him being case No. 46/61-62 in respect of this unauthorized occupation and in that case he was ordered to pay a penalty and a further order appears to have been made that occupancy price should be levied from him. No occupancy price was paid by him but he continued in possession though the land was not transferred to his name nor was granted to him. In July 1964 the appellant became the revenue circle inspector of the area. At that time the talati was one Kantilal Dahyaram (Ex. 12). On August 15, 1964 the appellant went to Anandsar in the course of his duties and was accompanied by the said talati. This is deposed to by the said Kantilal Dahyaram and has not been disputed. While the appellant was returning from Anandsar to Bhuj and was at the bus-stand at Anandsar, Naran met him there at the bus-stand and had a talk with him about the land in possession of Naran. The appellant asked Naran to see him at Bhuj in his office and the appellant wrote down his address at Bhuj
in Naran's diary. That diary has been produced in the case. Thereafter Naran and the appellant parted on that day. Thus for the facts are not in dispute.
3. According to the prosecution, Naran, thereafter met the appellant at Bhuj near the Maherally chowk on August 18, 1964. He met him again at Bhuj bus-stand on 19 August. As to what happened during those two meetings is set out in brief in the complaint which Naran filed on 19 August evening before the P.S.I., Jadeja (Ex. 13), who was the P.S.I. of the Anti-corruption Branch in that area. Naran appeared before him on 19 August at 8 p.m. and filed a complaint which is at Ex. 5. In that complaint after referring to his occupation of the Government land at Anandsar and the fact that there was a tumar in that connexion and that the present revenue circle inspector was the appellant, he went on to say that four days before (which means on August 15, 1964) the appellant had come to his village Anandsar and had called him and told him that he had tilled the Government land illegally and has to leave off the possession. Naran went on to state that when he pointed out to the appellant that he had been tilling the land for four years, had also paid the vighoti and the fine and laboured over the land, the appellant told him that if he wanted that field to remain in his possession and be entered in his name he (Naran) should meet him at Bhuj. When Naran inquired as to where at Bhuj he should meet him the appellant gave his address in Naran's diary. He goes on to say that accordingly he came to Bhuj the previous day (that is 18 instant) and while he was proceeding to meet the appellant he happened to meet the appellant in the bazaar of Bhuj and the appellant told him that as there were other persons in the office his talk with him (Naran) could not take place in his office and proceeded to tell him that if he wanted to retain possession of the field he was to give the appellant his labour. Naran goes on to say that he inquired from the appellant what his labour would be and was told that it would be Rs. 500. When Naran showed some hesitation to pay such a large amount, the appellant came down to Rs. 400 saying that he had to share the amount with others. Naran goes on to state in the complaint that he promised the appellant to think over the matter and to meet him again on the next day, telling the appellant that he did not have the amount with him and will have to make arrangements for it. Naran winds up the complaint saying that he was not willing to pay the amount and it was being demanded by way of illegal gratification. After recording this complaint the P.S.I. asked Naran to meet the appellant at his office and fix up the time, place and date of payment. Accordingly, according to the prosecution, Naran met the appellant again on 20 instant at the appellant's office and fixed up the place, date and the time as August 20, 1964 at 10 a.m. in the office of the appellant. Naran then came back to the P.S.I. the same day, that is, 20 August and the P.S.I. recorded his further statement below the complaint. In that further statement he set out the talk that he had with the appellant that day and stated that the appellant was to meet him on August 20, 1964 at the office of the appellant.
4. P.S.I., Jadeja, thereafter made a report to the magistrate for permission to investigate. That report was made on August 21, 1964 and is at Ex. 14. The magistrate accorded the permission. Then on August 22, 1964 when Naran arrived at the office of the P.S.I., Jadeja, the latter called two panchas
5. The panch witness Pratapsingh, as we have stated above, gives substantially the same story as given by Naran. The only additional fact which he deposes is as to what happened when Naran went to the terrace after he had handed over to the appellant the amount and the latter counted it. Pratapsingh states that after Naran gave the amount and went out to the terrace for spitting (which was the signal for the police party) the appellant rose and went to his coat hanging on a peg and then took out a bidi from the pocket of the coat and then sat and rested in the chair and he then looked at one of the currency notes and was suspecting some initials on it. At that time Naran returned back to the room and the police party and the other panch also came there.
6. After the police party headed by P.S.I., Jadeja, entered the office of the appellant the usual formalities and the demonstration with the rays of the ultra-violet lamp was made. This again is deposed to by the three witnesses, namely, the P.S.I.,the complainant and the panch. It would be sufficient to refer to the testimony of the P.S.I. and notice what he has to say. He states that he found the currency notes lying on the table and after introducing himself to the appellant he sent for the ultra-violet lamp and the box containing it was opened with the key which was in the possession of the other panch, and then the hands of the police and the panchas were shown to the appellant under the ultra-violet lamp. No marks of powder were visible. The appellant was thereafter asked to show his hands in daylight and there were no marks of powder visible but when they were shown under the light of the ultra-violet lamp, they showed marks of bluish white powder on the fingers of both the hands and on the middle of the palm. Then the pocket of the coat of the appellant hanging on a peg in the wall was also seen under that light and again glittering bluish white marks of anthracene powder were visible in the internal part of the pocket. Similar marks were visible under the light of the ultra-violet lamp on the arms of the chair on which the appellant was sitting and on the chest part of the shirt put on by the appellant and on the pocket of the shirt. Then the currency notes, which were lying on the table, were examined and they also disclosed similar marks of anthracene powder under the light of the ultra-violet lamp. The P.S.I goes on to say that the numbers of the currency notes were compared with those noted in the panchnama and they tallied. They also bore the initials of the second panch. Thereafter the sheets of paper on which the currency notes were lying were taken possession of as they also disclosed the marks of anthracene powder when examined in the light of the ultra-violet lamp. The appellant was then asked to produce the tumar regarding the land of the complainant and he accordingly produced it and it was also taken possession of. A panchnama of all this was made. Investigation followed and the appellant was chargesheeted for the offence earlier mentioned.
7. The learned Sessions Judge accepted the prosecution evidence in toto but came to the conclusion that the appellant cannot be said to have finally accepted the amount which was counted out to him as he (the appellant) was feeling suspicion from the appearance of the notes. The learned Judge stated that as the notes were not found at the time of the raid in the actual possession of the appellant but were lying on the table when the police officers came, the act of the appellant amounted to attempt to accept. He came to the conclusion that an offence under S. 5(2) of the Prevention of Corruption Act, 1947, was made out but that so far as the offence under S. 161 of the Indian Penal code was concerned, the offence that can be said to have been made out was under S. 161 read with S. 511, Indian Penal Code. He convicted the appellant accordingly and gave the sentences earlier mentioned.
8. Sri K. N. Mankad, who argued the appeal on behalf of the appellant, firstly submitted that the evidence led in the case was lot worthy of acceptance. There were, he argued, contradiction in evidence and the particular contradictions to which he invited our attention was on the question as to the application on of anthracene powder to the notes in the P.S.I.'s office. He further argued that the witnesses were not independent witnesses and he contended that the corroborative evidence though available was not produced. In this connexion he particularly invited our attention to the fact that the police constable Shantilal was not examined nor was the other panch. His submission is that taking all these facts into consideration the evidence led in the case cannot be said to be worthy of acceptance. His second submission is that the whole prosecution story is improbable. He relied on some facts in respect of this submission. We shall mention those facts later when we examine that submission. His last submission was that even if the evidence led is acceptable it does not prove any of the offences with which the appellant was charged because the appellant had withdrawn from the acceptance of money and as this withdrawal was voluntary there was not even an attempt to commit the offence much less the commission of the offence itself. He contended that neither of the two offences was therefore, on the evidence, established.
9. The principal witnesses on what happened on 22 August 1964 are three, namely, the complainant Naran, the panch Pratapsingh and the P.S.I., Jadeja, but before we examine that evidence we may refer to the evidence as to the event which preceded. There is not dispute about the unauthorized occupation of Naran over about three acres of Government land, the tumar in respect of which was pending in the revenue circle inspector's office. This fact is proved in the testimony of prosecution witness Jamnadas Asandas (Ex. 9) who was the mamlatdar of that circle at the relevant time. There is further no dispute about the fact that this tumar had come to the appellant for disposal, the appellant being the revenue circle inspector of that area at that time. In fact the papers of tumar were produced by the appellant at the time of the panchnama, as earlier mentioned. Those papers which were Art. 4 at the time of the panchnama have been exhibited at Ex. 11. It is also undisputed that in respect of that tumar there was a talk between the complainant and the appellant at Anandsar bus-stand on August 15, 1964. The only dispute is as to what exactly was the content of that talk. Naran's testimony is that the appellant asked him as to what he wanted to do regarding the land and he (Naran) told that he wanted to cultivate it and was prepared to pay the land revenue. The appellant told him that he should see him in that regard and wrote his address in Naran's diary asking him to see him at that place. The appellant told him that if he (Naran) failed to see him within two or three days he would take over possession of the land together with the crops in the presence of panchas. It may be stated that this is substantially the story which Naran gave when he filed his complaint before the P.S.I. on 19 August, for in that complaint he stated that four days before the date of the complaint the appellant had come to his village and had called him and told him that he had tilled the Government land illegally and will have to leave possession and that when Naran put forward before him the fact of his long possession, his labour, etc., the appellant told him that if he wanted to keep that field in his possession and have it entered in his name, he can come and see him at Bhuj. Naran's evidence as to what the talk was is therefore corroborated party by his immediate version. No doubt he is not fully corroborated by the talati Kantilal Dayaram (Ex. 12) who was accompanying the appellant at that time. Kantilal only states that when Naran met them at the motor bus-stand at Anandsar, the appellant told him that he should see him regarding the land in his office at Bhuj. The witness does not mention that otherwise Naran would have to leave the possession, but it is obvious that this was implicit in the appellant's calling Naran to Bhuj. On the whole we see no sufficient reason to disbelieve Naran. This is so far as the events of 15 August are concerned. There was no specific demand made till then. But, it is apparent, if the evidence of Naran is believed, that the ground for such a demand was being prepared. It is significant to note that the appellant gave his address in Naran's diary.
10. With this we may now go to the evidence relating to the alleged meetings between the complainant and the appellant on 18 and August 19, 1964, and the alleged demand made on these dates. What happened on those days has been set out by Naran in brief in the complaint and Naran deposes to it in his deposition. We have earlier referred to that part of the evidence. There is no doubt no independent corroboration to Naran's story in respect of what happened on 18 and 19 August. Whatever corroboration is available is from his immediate conduct in setting out the story in the complaint which he filed, However, as there is no charge in respect of the demand made on 18 and 19 August the evidence in respect of what happened on these days is relevant only in so far as it unfolds the prosecution story and explains the subsequent conduct of Naran. Naran had no particular reason to implicate the appellant all of a sudden on 19 August or to risk the sum of Rs. 400. His doing so is consistent with his version as to what happened on 18 and 19 August. So far as concerns the proof of offence, we are concerned with the events of 22 August and we may now turn to examine the evidence on that point.
11. As we stated, in respect of the events of 22 August 1964, the three witnesses were the complainant, the panch Pratapsingh and the P.S.I., Jadeja. Their evidence has been set out earlier. They gave broadly a consistent story. If that evidence is accepted, it establishes both the offences. It goes to establish that a demand was made, that money was offered in accordance with that demand, that the appellant took the money in his hands, counted it out and placed it on his table which would amount to acceptance of money. No doubt he had a slight suspicion as regards the notes and it is this suspicion which has led the learned Judge to hold that he did not actually accept the amount but attempted to or agreed to accept it. We shall examine that part of the learned Judge's conclusion later but there is not doubt that the learned Judge has accepted in toto the evidence of these witnesses and if accepted both the offences can be said to have been established. Against its acceptance Sri Mankad has advanced some arguments, which may now be considered. One argument advanced by him is that there are contradictions in the testimony of these witnesses. The only contradiction to which he drew our attention and on which he relied was that whereas Naran and the P.S.I. stated that it was the constable Shantilal who applied the anthracene powder to the notes at the police station, the statement of Pratapsingh was that it was the P.S.I. who applied it. This, in our opinion, is not a material contradiction. Pratapsingh was deposing about a year after he witnessed the demonstration and it would not be unnatural if he committed an error on a minor point of this nature. The panchnama to the correctness of which deposes states that it was the constable Shantilal who applied the powder and indeed Pratapsingh cannot be said far wrong because all this was done under the supervision and direction of the P.S.I. We do not consider the contradiction to be a material one. Sri Mankad then relied on an omission in the evidence of these witness which according to him was a material one. Whereas Naran and the P.S.I. state that before the power was applied to the notes the notes were shown in the ordinary light, they did not disclose any bluish white shine, the witness Pratapsingh does not make this particular statement. This omission is again of the same character as the contradiction on which Sri Mankad has relied and we do not think this of such importance as to justify the rejection of the testimony of the three witnesses. Then Sri Mankad's argument is that certain material evidence was kept back by the prosecution and therefore an adverse inference should be drawn against the prosecution. The evidence which has been kept back according to Sri Mankad is firstly the evidence of the persons of Anandsar from whom Naran borrowed the money so as to make Rs. 400, secondly the evidence of police constable Shantilal as to the application of powder on the notes and thirdly the evidence of panch Ramniklal in whose possession the key of the box was given after the power and the ultra-violet lamp were locked and who opened the box after the raid. Now, as to the persons from Anandsar from whom the sums were borrowed by Naran to make a sum of Rs. 400, his story that he had borrowed the same was not challenged in the cross-examination. Moreover, so long as he brought the money and the money was not provided for by the police, the question as to where from he brought the money is not material. No doubt if these witnesses had been examined, it could have lent some corroboration to the testimony of Naran But the non-examination does not justify rejection of his testimony. Constable Shantilal could not have carried the case any further than the P.S.I. because whatever Shantilal did was under the supervision and direction of the P.S.I. His non-examination therefore does not affect any essential part of the prosecution evidence or the prosecution story. The panch witness Ramniklal if examined would not have thrown any light on what happened in the office of the appellant and that indeed was the material part of the prosecution story and for that panch Pratapsingh was examined. The only thing which Ramniklal would have deposed about, would be about the fact that he was given the key of the box and he opened the box. The fact that he did so is proved by the other evidence and his non-examination does not reflect on that evidence.
12. The last argument of Sri Mankad as regards the evidence as a whole is that the three witnesses are partisan witnesses and their evidence cannot be accepted without corroboration. It is necessary therefore to consider this part of the argument and also to see whether if corroboration is necessary the same is available in this case. There is no doubt that complainant Naran and the P.S.I. would be partisan witnesses. The same cannot, however, be said as a matter of course in respect of panch Pratapsingh. Sri Mankad's argument is that Pratapsingh is in fact an interested witness and even if he is not found in fact to be an interested witness, he must be deemed to be an interested witness, having regard to the fact that he was acting as a panch in a raiding party. We shall first examine the submission that Pratapsingh was in fact an interested witness. Sri Mankad relies on three circumstances. He states that Pratapsingh and the P.S.I. are from the same community. He then states that Pratapsingh does not belong to the same locality where the P.S.I.'s office is situated and where the initial panchnama was made and therefore his evidence is suspect. He lastly urges that Pratapsingh is under the influence of the P.S.I. because, Pratapsingh while in school was staying in a boarding house of which the superintendent was the brother of the P.S.I., Jadeja. There is no evidence in support of the first part of the argument. There is nothing to show that Pratapsingh and the P.S.I., Jadeja, belong to the same community. The whole argument is based on the admission of the P.S.I. in cross-examination that Pratapsingh is Jadeja by surname. Sri Mankad argues that Pratapsingh's surname is Jadeja and the surname of P.S.I. is also Jadeja and therefore they belong to the same community. Mere similarity of surnames is not sufficient to justify that inference. If that was the case, the defence could have put it either to Pratapsingh or to the P.S.I. As for the argument that he came from a locality other than the locality where the panchnama was made, there is again no evidence. The only evidence is that he resides in the locality at Bhuj known as the Upli Pol whereas the P.S.I.'s office is in the Santosh society. There is nothing to show that Upli Pol is at a distance from Santosh society. As for the last argument, namely, that the P.S.I.'s brother was the superintendent of the boarding house in which the panch resided at the time of his schooling, it is difficult to see how that can give the P.S.I. any influence over Pratapsingh. Pratapsingh is serving in the taluka panchayat office and he is also studying in the Pre-University class. It is not shown that either by reason of his occupation or by reason of his status he was amenable to the influence of or pressure from P.S.I., Jadeja. It is not alleged that he is interested in the complainant or inimical towards the appellant. It is not alleged or shown that by reason of his position, financial or otherwise, he is susceptible to pressures from the complainant or the police. He appears therefore to be an independent witness. The contention that he was in fact an interested witness cannot be accepted. Sri Mankad, however, argues that even so the mere fact that Pratapsingh acted as a panch witness in connexion with a raid was sufficient to class him as a partisan or an interested witness. In support of that proposition Sri Mankad invited our attention to the decision of the Supreme Court in Shiv Bahadur Singh v. State of Vidharba Pradesh [A.I.R. 1954 S.C. 322]. In that case the raiding patty consisted of three persons, namely, the police officer, an executive officer of the rank of the Deputy Secretary who was concerned with corruption cases and the Additional district Magistrate who accompanied the two. The Supreme Court did not find it possible to rely on the evidence of these witnesses without corroboration as in the view of the Court they were partisan witnesses. The Supreme Court, however, found corroboration in certain documents and in the testimony of the panch witness who was called after the raid. Sri Mankad invites our attention to the following observations in that case :
'Not only was the police force requisitioned in the organizing of the raid but they also enlisted the aid of Shantilal Ahuja, the Additional District Magistrate, who took down the statement of Nagindas, searched his person, prepared a memorandum of the notes which were handed over to him and actually accompanied the raiding party to the Constitution House. The Additional District Magistrate was thus made a member of the raiding party itself and was reduced to the position of a witness. The evidence of the police witnesses as also of the Additional District Magistrate thus was tainted as that of partisan witness and no corroboration could be derived by Nagindas from the evidence of these witnesses.'
13. From this Sri Mankad draws the inference that all those who are with the raiding party must be treated as partisan witnesses. That inference does not necessarily follow from the decision. The Supreme Court was considering the evidence of a non-police officer who had identified himself with the police party and thereby shared the intention of the police authorities to trap the accused. Later on (at p. 332) their lordships indicate this more emphatically when they say that Sri Shantilal Ahuja, the Additional District Magistrate, also lent himself to the police authorities and became almost a limb of the police. It was on these facts that he was considered to be a partisan witness. This decision appears to have led to an argument in later cases that the evidence of partisan witnesses must necessarily be corroborated. This point was examined by the Supreme Court in the case of State of Bihar v. Basawan Singh [A.I.R. 1958 S.C. 500] where again the members of the raiding party were the two trap witnesses from whom the bribe had been demanded, the Deputy Superintendent of Police, the Deputy Secretary to Government who was concerned with corruption cases and a first-class magistrate who was deputed by the District Magistrate to be with the above officers. The question which the Supreme Court posed before itself was whether Shiv Bahadur case [A.I.R. 1954 S.C. 322] (vide supra) lays down any universal or inflexible rule that the testimony of witnesses who form the raiding party must be discarded unless corroborated by independent witnesses. They answered that question in the negative. They formulated the correct rule in these words :
'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 accomplice 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 by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness, he cannot claim any higher status and must be treated as any other interested witness.'
14. Therefore, a person who in concerned in the success of the trap is to be treated as a partisan or interested witness. Neither of theses cases deals with the character of the evidence of a punch who accompanied the raiding party as a witness to what was taking place and not as a person who concerned himself with the success of the trap. That question was considered by the Supreme Court in Ramanlal v. State of Bombay [A.I.R. 1960 S.C. 961], where the panchas were also with the raiding party and witnessed the preparation and carrying out of the raid.
15. Their lordships say :
'In the case before us the money was given to the appellant in the presence of one of the search witnesses Mohanbhai Shankerbhai and when it was thrown on the ground by the appellant it was picked up by that witness at the instance of the Deputy Superintendent of Police, Pandya. It cannot be said that these two witnesses were not independent witnesses even though they consented to become search or panch witnesses.'
16. The two witnesses their lordships refer are the two panch witnesses, Mohanbhai Shankarlal and Rambhai Dahyabhai. Thereafter their lordships referred to the status of these two panch witnesses the absence of any connexion between them and the complainant, the improbability of their being willing tools in fabricating false evidence against an innocent person and say that :
'This is not a case where the police or anybody else has done any act in order to oblige any particular person but it is one of those cases where a complaint was made to the police that the appellant was demanding a bribe from the complainant. The police no doubt provided the money and are witnesses to the passing of the money but it is not a case where the police had instigated any one to offer a bribe to the appellant.
Even if it was a case where it was necessary to have corroborative evidence, that is supplied by the testimony of Mohanbai Shankerbhai and Rambhai Dahyabhai and as was pointed out by this Court in Rameshwar v. State of Rajasthan [A.I.R. 1952 S.C. 54] that it is not necessary that there should be independent corroboration of every material circumstance. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplices or the complainant is true and that it is reasonably safe to act upon it and the corroboration need not be direct evidence.'
17. Therefore, the evidence of the panch witnesses was treated not on the same footing as the evidence of partisan or interested witnesses but as additional evidence to be considered on its own merits. The true position, therefore, is that as regards panch witnesses the mere fact that they accompanied the police and witnessed the raid does not make them interested witnesses. They do not, by reason of participation in those proceedings, stand on the same footing as the complainant or the police who are interested in the success of the raid. They may stand on that footing if the circumstances show that they share in the intention to raid or have become parties to that intention by any subsequent conduct on their part such as being actually interested in the result of the raid. In the absence of any such participation or interest on their part, their evidence must be judged by the same standards as the evidence of any other witness. Their status, the presence or absence of any motive to favour or disfavour a party, the dispassionate nature of their evidence and all other factors bearing on their independence and reliability and the probabilities of their story may be taken into account. This was the view taken by the Bombay High Court in Ramchand Tolaram v. State [A.I.R. 1956 Bom. 287] where it was pointed out that if the panchas are not parties to the trap and do not share in the intention of the decoy or the trap witness or the police who raid with the objective of traping and are there only primarily for the purpose of witnessing what was taking place, there is no reason to treat them not as independent witnesses but as partisan witnesses. Their lordships drew attention to the danger involved in treating panch witnesses as necessarily partisan witnesses. They observed :
'To put the matter in a nutshell, the police take the panchas with themselves so that they should watch what happens. They are not interested in what happens, nor are they parties to the trap. The law of the land requires that certain things should be done by the police in the presence of independent respectable persons so that the presence of the said persons may put the particular transaction beyond the pale of suspicion.
In these circumstances to construe the conduct of independent and respectable people, who accompany the police at the asking of the police to serve as panchas, as being the conduct of partisan persons, would be grossly unfair to these people.'
18. They pointed out that if panchas who come forward to do their duty in the administration of justice as respectable citizens lose in the bargain their independent character and carry a stigma of being a partisan witness, it would become a serious matter. These are weighty considerations. Sri Mankad, however, invites our attention to the decision of this Court in Bhanuprasad v. State [6 G.L.R. 958] and to the observations therein that the trap witnesses who are members of the raiding party may be treated as partisan witnesses but as regards partisan witnesses there is no rule of law that their evidence cannot be accepted in the absence of independent corroboration in material particulars. The observations there refer to the trap witnesses and to the question whether the evidence of partisan witnesses requires to be independently corroborated in material particulars before it can be accepted. Therefore it is not possible to accept Sri Mankad's submission that merely because Pratapsingh is a panch he must be on that account held to be a partisan or interested witness. Whether or not he is an independent witness or interested witness must depend on the facts of this case and so far as the facts of this case go, there is nothing to indicate that he is in any way an interested witness. On the other hand, the facts indicate that he is an independent witness. That being so, his evidence, if accepted, furnishes additional evidence which renders the evidence of the complainant and the P.S.I. probable and acceptable.
19. Even on the footing that all the three witnesses must be treated as partisan or interested witnesses their evidence does not in law require to be corroborated. That point was examined by this Court in the case of Bhanuprasad v. State [6 G.L.R. 958] (vide supra) where it was pointed out that there is no rule of law that their evidence cannot be accepted in the absence of independent corroboration in material particulars and that the true position was that the weight to be attached to the evidence would depend upon the various considerations which would vary from case to case. In the present case the learned Judge has found the evidence acceptable. Except for the contradictions, discrepancies and other considerations and circumstances to which Sri Mankad has invited our attention and about which we have already expressed ourselves, there is nothing placed before us which persuade us to take a different view. Assuming that some corroboration is necessary, to lend assurance to the testimony of these witnesses, that corroboration is available in this case. The first peace of corroborative evidence is the fact that on August 15, 1964 when the appellant met Naran at the Anandsar bus-stand he asked Naran to see him at Bhuj and he gave his address in the latter's diary. By itself this may not be an incriminating circumstance but we are here concerned not with incriminating circumstances but with facts which lend broad corroboration to the story of Naran. Another piece of corroborative evidence is the immediate conduct of Naran. He goes to the P.S.I. on the evening of 19 and complains to him about the demand of a bribe by the appellant. The contents of that complaint which was recorded at the earliest, just after the demand was made, are consistent with what happened subsequently and therefore that evidence of conduct lends corroboration to the story of Naran. The third piece of corroborative evidence is the presence of notes on the table of the appellant at the time the police officer entered the office of the appellant. The presence of those notes on that table has not been disputed. In his statement before the Court under S. 342 of the Criminal Procedure Code when the evidence of witnesses as regards the payment of Rs. 400 at his office was put to him he stated that Naran had gone to his office but Pratapsingh was not with him. He denied that he asked Naran to give him any money or that he agreed that Naran should pay anything to him. He also denied that Naran offered him currency notes in question. He went on to say that -
'It is true that I had stood to take the bidi from the pocket of my coat and I do not know if Naran had placed the currency notes on the table at that time. After taking bidi I had taken my chair and at that time the police had come up. At that time the police asked me as to where the money was and I told them that I had not seen the money and I did not know any thing about it. The police had taken out the currency notes lying under the papers that were lying on my table.'
20. Therefore he accepts the position that the currency notes were lying on the table. Although he does not allege that they were planted when he had stood to take a bidi from his coat, presumably that is the theory, but if that were so, no marks of anthracene powder would be found in his hands at any rate having regard to the testimony of Pratapsingh, whom there is no reason to disbelieve, it is not possible to accept the suggestion of the appellant. The presence of notes is therefore another piece of corroborative evidence. A further piece of corroborative evidence is the presence of anthracene powder at several places and objects earlier mentioned, namely, on the fingers and palm of the appellant, on his shirt, on the inner pocket of his coat which was hanging on a peg and on the papers lying on the table. The appellant denies the presence of anthracene powder on these objects and denies that they were detected under the ultra-violet lamp. But it is difficult to accept that denial. If the police had made all the preparations which they did make at the P.S.I.'s office in respect of the carrying out of the raid, it is improbable that they should not bring the ultra-violet lamp to the office of the appellant and endeavour to detect the traces of the anthracene powder in so far as those traces would support the prosecution case. A panchnama was made there and then and it is not possible to accept the suggestion implied in the statement of the appellant that Pratapsingh would be a party to the false case against him. Sri Mankad has one more argument to advance in respect of the anthracene powder. We shall notice that argument presently. But to continue the narration of the corroborative evidence mention may be made to the circumstances which occasioned the payment of the bribe. There is no doubt that the tumar in respect of the land unauthorizedly occupied by Naran was pending before the appellant. There is no doubt that it was in respect of that tumar that the appellant asked Naran to come and see him. The papers of that tumar were admittedly with the appellant in his office at the time of the raid and were in fact handed over to the police officer when demanded. It is obvious that that tumar furnished an occasion for demanding the bribe and that circumstance is corroborative of the complainant's story. All this evidence furnishes ample corroboration to the testimony of the three witnesses, and the story which emerges therefrom deserves to be accepted.
21. We may now notice the argument advanced by Sri Mankad in respect of the anthracene powder. The argument is that the prosecution has not led any evidence by way of expert evidence or any evidence of books of science to prove the method of detection of anthracene powder, the nature of the test to be applied, the nature of the result to be expected and whether a layman can detect anthracene powder when such test is applied. His argument is that unless this evidence is led the Court cannot hold it proved that anthracene powder when such test is applied. His argument is that unless this evidence is led the court cannot hold it proved that anthracene powder was present or that the presence of the anthracene powder furnished corroboration to the prosecution evidence. In support of that argument he relied on the decision in Ramsing Bhadrasingh v. State [1 G.L.R. 138]. The facts of that case were entirely different. It does not appear that in that case the police officer explained to the panchas and other witnesses the effect of anthracene powder, as was done in the present case by the police officer as deposed to by the witnesses. In that case there was no demonstration to the witnesses in the light of the ultra-violet lamp before the application of the anthracene powder and therefore they did not know the difference between the effect of the anthracene powder before application and after application. In that case the constable who was conversant with the use of the powder was not examined. In the present case no doubt the constable himself has not been examined but the P.S.I. who was present and who directed the operation has been examined and deposes to about it. In that case the witnesses were not quite agreed as to what was the nature of shine given by the powder noticed after the raid. It was under those circumstances that the Court made the following observations :
'The prosecution must lead positive evidence by way of expert evidence or books of science to prove the sure methods of detection of anthracene powder, the nature of the test to be applied, the nature of the result to be expected and whether a layman can detect anthracene powder when such test is applied. The prosecution must also prove that if the test leads to a positive result, it conclusively proves the presence of anthracene powder and nothing else.'
22. These observations must be read in the light of that case and would not apply to the facts of this case as was pointed out by this Court in Bhanuprasad case [6 I.L.R. 958] (vide supra) where the facts were similar to the facts of the present case. The argument of Sri Mankad therefore that the presence of anthracene powder has not been proved and cannot be relied on as a corroborative piece of evidence is not sustainable. But even if that argument has weight, the exclusion of evidence about the detection of the anthracene powder will not affect the credibility of the three principal witnesses whose evidence is otherwise corroborated by circumstances to whom we have drawn attention.
23. Sri Mankad's next submission is that the whole of the prosecution story is improbable. He relies on four circumstances in support of that submission. He says that the order of possession of and in favour of the complainant Naran was already passed by the mamlatdar who was the superior officer to the appellant and therefore there has hardly any scope for the appellant to demand any bribe for doing something which was already ordered to be done. He next submits that it is impossible to believe that such a demand would be made in a bazaar as alleged by the complainant because if it is so made many other persons will come to know of it. The third circumstance on which he relies is that the amount demanded would not be so large nor would the appellant try for such an amount when the occupancy price which the complainant would have had to pay in respect of the land would according to the evidence be about Rs. 56. He lastly argues that it is contrary to human conduct for a bribe-taker to accept the bribe in the presence of a stranger as was done in the present case when the appellant is alleged to have accepted the bribe in the presence of Pratapsingh. These circumstances, in our opinion, are not such as would negative the prosecution story. There was no absolute order of possession in favour of the complainant. The papers of the tumar Ex. 11 show that an inquiry was ordered to be made on two points firstly whether Naran had any other land and if so whether it is entered in his name and secondly whether any hardship was likely to occur if the encroachment was removed. Till this inquiry is completed and the report is received Naran would not be able to get the grant. The first point of the inquiry may be factual but in respect of the second point the reporting officer had to give his own opinion. Therefore, it cannot be said that an order of possession in favour of Naran was passed or there was no occasion for the appellant to demand a bribe in respect of the report in favour of Naran regarding this land. It is true that the demand in so far as it was made on 18 and 19 August was made in the bazaar but Naran states that when he asked the appellant for going to the office the appellant told him that there would be other people in the office. There is nothing unusual in this statement. If Naran had wanted to improve the story he could have substituted the office in place of bazaar. Under these circumstances Naran's story on that score is not improbable. It is true that the amount asked for was many times the occupancy price but the point is that Naran had no intention to pay it as a price for a favourable report. Immediately the demand was made he reported to the P.S.I. and therefore if he agreed to the payment of Rs. 400 he did so in order to enable him to trap the appellant from making such an illegal demand. The argument that the amount would not be accepted in the presence of a stranger overlooks the evidence on the point for the evidence is that when the appellant inquired from Naran as to who his companion was Naran told him that his companion was his cousin and there was nothing to worry about it and the appellant was satisfied. In our opinion therefore, the circumstances relied on by Sri Mankad in support of his argument that the prosecution story is improbable are not such as to sustain his submission.
24. Now, before considering the last submission of Sri Mankad it would be worthwhile to notice the material evidence and the findings of the learned Sessions Judge. The evidence of Naran and Pratapsingh was that the appellant asked them to sit in his office and after both of them had sat the appellant asked Naran who his companion was and after Naran had explained to him that he was his cousin brother the appellant asked Naran whether he had brought the thing earlier agreed and Naran replied in the affirmative. Naran then took out three 100 rupee currency notes from his pocket and gave the same to the appellant one by one and then Naran took the other 10 currency notes of Rs. 10 each from his pocket and gave them to appellant one by one after counting them. The appellant took all the currency notes and counted them and then placed them on the table and told the complainant that he was feeling something like powder on the currency notes. Naran told him that currency notes were brought by him from Anandsar and he did not know anything about any powder. The appellant then took the currency notes in this hand and examined them with a sense of suspicion and at that time Naran got up and went to the terrace for spitting. The appellant then rose and took out bidis from the pocket of his coat that was hanging on a peg on the wall. He again sat on the chair and was looking at the currency notes lying on the table. At that time the appellant stated that the currency notes lying on the table. At that time the appellant stated that the currency notes were bearing initials of some panchas. This is the story deposed to by panch witness Pratapsingh and it is substantially the same as deposed to also by Naran. This story has been accepted by the learned Judge in toto and in our opinion it deserves to be accepted. Now, with this we may turn to the findings of the learned Judge. Three questions were raised by him for determination. They are as under :
'(1) Whether the prosecution proves that this accused had demanded illegal gratification of Rs. 400 from this complainant for allowing him the grant of the filed held by the complainant
(2) Whether the prosecution proves that the accused accepted or agreed to accept the illegal gratification of Rs. 400 and had placed the said amount on his table after accepting the same
(3) Whether the accused is proved to have committed any offence ?'
25. The findings to these questions of the learned Judge are as under :
(2) Yes : agreed to accept.
(3) The offence under S. 5(2) of the Prevention of Corruption Act and S. 161 read with S. 511 of the Indian Penal Code.'
26. Therefore, in respect of the demand for illegal gratification of Rs. 400 there is a clear finding in the affirmative. The second point should have mentioned not merely the question of acceptance or agreement to accept but also the question whether the appellant had obtained the money, because S. 5(2) of the Prevention of Corruption Act is concerned with obtaining, whereas S. 161 of the Indian Penal Code is concerned with both obtaining and acceptance, but presumably the learned Judge thought that as he had already dealt with the point of demand in the first point, the second point in so far as it related to acceptance would cover also obtaining. In the second point once the evidence was accepted, the answer would be affirmative but the finding is 'Yes, agreed to accept.' If we turn to the reasoning of the learned Judge it becomes apparent that there is some misconception on this point. He appears to have been much impressed by the fact that the appellant was suspecting some fraud. He was suspecting either there was powder on the notes or there were initials in the notes and because of this suspicion the learned Judge appears to have thought that although the appellant demanded the money. money was given to him, he counted it out and he placed it on the table, there was nevertheless no final acceptance of the money because of the suspicion which the appellant entertained in respect of the notes themselves. The learned Judge appears to have confused the idea of acceptance of the bribe with the idea of the acceptability of the notes which were handed over to the appellant in respect of that bribe. This becomes clear from some of the passages in the judgment. In Para. 19 of his judgment the learned Judge says :
'According to these two witnesses the currency notes were lying on the table and it was evident that finding of the currency notes on the table would not amount to undisputed acceptance of the same by the accused.'
27. The learned Judge here refers to the position when the police party entered. The learned Judge's observations that the two witnesses have not tried to exaggerate are with reference to the fact that the witnesses do not go so far as to say that the appellant put the notes in his pocket. The learned Judge accepts the evidence that the appellant himself put the notes on the table after counting. The same observations are repeated in the next paragraph where it is pointed out that the P.S.I. though he was interested to see that the trap laid by him was successful, had not made even an attempt to exaggerate the story but placed the facts as he found them. In Para. 22 the learned Judge says :
'I am satisfied that the prosecution has succeeded in proving the fact that the accused had demanded illegal gratification from the complainant of Rs. 400 for doing the official work and had made an attempt to accept that amount, when the amount, of currency notes, dusted with anthracene powder, was given to him. I may hold that the accused had hesitated to accept the amount, after making an attempt to get the same and the accused was exposed before he finally accepted the amount.'
28. This passage shows the confusion which the learned Judge has got into. Once the money was demanded by the appellant, was paid to him, he counted it out and placed on his table, the acceptance of it was complete. The suspicion relating to the notes which arose in the mind of the appellant was concerned not with the payment of the bribe money but with the form in which it was paid, namely, the notes which he felt may be dusted or initialled. If it was paid in any other form and if he did not entertain any suspicion, there should be no difficulty. What happened therefore was that having accepted the money when he began to feel doubts that perhaps the notes were marked, he did not want to retain the notes and this unwillingness to retain them has been construed by the learned Judge as hesitation to accept the amount and that is now he thinks that what the appellant did was merely an attempt to accept the amount, an expression which is difficult to follow. The reason for the confusion becomes clear in the last paragraph of his judgment, namely, Para. 24 where he states that :
'The amount was not found from the possession of the accused but was found lying on the table of the accused and the evidence showed very clearly that even though the accused admitted to take the amount, he had not actually accepted the same. I would therefore convict him for the offence, punishable ...'
29. Sri Mankad's submission may now be discussed. His argument is that before accepting the amount demanded the appellant voluntarily withdrew and therefore there was not only no acceptance but not even an attempt to accept or an agreement to accept as held by the learned Sessions Judge. And therefore there would be no offence under S. 161 even for the alleged agreement to accept, much less would there be an offence under S. 5(2) of the Prevention of Corruption Act. He invited our attention to the decision of the Supreme Court in Abhayanand Mishra v. State of Bihar [A.I.R. 1961 S.C. 1698]. That was a case of an attempt to cheat. The appellant wanted to appear at the M.A. examination as a private candidate. He made an application attaching certain certificates purporting to be from the headmaster of the school and the inspector of schools, showing that he was qualified to appear. The university authorities accepted the applicant's statement and gave permission to appear and wrote to him asking for the remission of the fees and two copies of his photograph. The appellant furnished these and proper admission card for him was despatched to the headmaster of the school. Before the card was delivered to the appellant. Information reached the university about the appellant's not being a graduate and being not a teacher. On inquiry the information was found to be correct and the certificates to be false. In consequence, the matter was reported to the police and after investigation for the offence of attempt to cheat punishable under Ss. 420 and 511, Indian Penal Code. The argument before the Court was that on the facts there would be no conviction for an attempt to commit the offence, for it was argued that the attempt would be an offence if the alleged criminal act is the necessary ingredient of the main offence and is the penultimate act which if carried out would have resulted in the commission of the offence. Their lordships rejected that argument. They said :
'There is therefore hardly any scope for saying that what the appellant had actually done did not amount to his attempting to commit the offence and had not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the university. The moment he despatched it, he entered the realm of attempting to commit the offence of cheating. He did succeed in deceiving the university and inducing it to issue the admission card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the university was informed about his being neither a graduate nor a teacher.'
30. Sri Mankad relies on the last sentence in these observations and particularly the words :
'because something beyond his control took place inasmuch as the university was informed about his being neither a graduate nor a teacher.'
31. His argument is that for a criminal act to be an attempt to commit the offence the withdrawal therefrom or the non-commission of the offence must be due to supervening circumstances over which the offender had no control. That is not what their lordships laid down. The observations just quoted are only with reference to the facts of the case and meant to indicate that but for the fact that the university entertained a suspicion the appellant would have committed the main offence. Their lordships quote with approval the definition of 'attempt' in Stephen's Digest of Criminal Law, 9th Edn., as under :
'An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted.
The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case.
An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact impossible, is an attempt to commit that crime.
The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself.'
32. Therefore, the failure or non-commission need not only be by supervening circumstances over which the offender had no no control but may be due to the voluntary withdrawal from the actual commission of the main offence. This was also laid down in R. MacCrea case [I.L.R. 15 All. 173] the decision of which has been fully approved by the Supreme Court in the above case. Their lordships pointed out that whether in a particular case a certain act amounts to an attempt to commit a particular offence is a question of fact depending on the nature of the offence and no specific precise definition is possible. Sri Mankad's argument therefore that the hesitation on the part of the appellant to take the notes because of a doubt in his mind as to the possible trap saves him even from an attempt to commit the offence cannot be accepted. In fact the whole argument is based on some misconception. And that misconception has arisen because of the application of S. 511, Indian Penal Code, by the learned judge. The offence under S. 161, Indian Penal Code, Covers not only the acceptance and obtaining but also a case where there is no agreement to accept or an attempt to obtain. It is not necessary to enter into a discussion of the difference between the concepts of accepting and obtaining. It is clear that attempts are covered by this section. The attempt is an offence itself under S. 161, Indian Penal code. There is therefore no scope for application of S. 511, Indian Penal Code. That section applies to a case where there is an attempt to commit an offence. When the attempt itself is an offence, there is no scope for saying that such an attempt is an attempt to commit the offence. Sri Mankad's argument that no offence either under S. 161 or S. 5(2) of the prevention of Corruption Act was committed on the facts of this case, cannot be accepted.
33. Sri Mankad's last argument is that in any case the learned Judge has acquitted the appellant of the offence under S. 5(2), because he has not in his findings stated that the appellant attempted to obtain illegal gratification. The offence under S. 5(1)(d) is said to have been committed if the offender, by corrupted or illegal means or by otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. Now, the learned judge has found that the appellant attempted to obtain the money, on the first point for determination. In his finding on the second point for determination he has stated that the appellant agreed to accept, Sri Mankad's argument is that there being no finding that the appellant obtained the money, there was no offence committed under S. 5(1)(d) which is punishable under S. 5(2) of the Act. The argument over looks the last paragraph of the judgment. If that paragraph is read as a whole it is clear, that the learned judge came to the conclusion that on the evidence there had been obtaining. When the learned judge says that the appellant did not actually accept, he brings in the concept of retention of money after it had been taken. This was obviously nothing to do with the commission of the offence. Sri Mankad's argument that there has been acquittal in respect of S. 5(2) of the Prevention of Corruption Act, 1947, is not consistent with what the learned judge has held in para. 24 or with what is stated in his final order under which the appellant has been convicted.
34. In the result, therefore, the appeal must fail, but for the reasons which we have given the learned judge was in error in specifying the offence under the Indian Penal Code as the offence under S. 161, read with S. 511, Indian Penal Code. Section 511, Indian Penal Code, does not apply at all and so far as the learned judge has imported that section in his order, that part of the order has to be modified.
35. For these reasons, the conviction of the appellant under S. 161, Indian Penal Code, read with S. 511, Indian Penal Code, is corrected into one under S. 161, Indian Penal Code. The rest of the order of the learned judge so far as the conviction of and sentence on the appellant are concerned is maintained and the appeal is dismissed. Bail bond cancelled. The appellant to surrender to bail.