Skip to content


Ambalal Motibhai Patel Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 169 of 1960 (Criminal Appeal No. 423 of 1960 of Bombay file)
Judge
Reported inAIR1961Guj1; 1961CriLJ50; (1960)GLR113
ActsEvidence Act, 1872 - Sections 5, 114 and 133
AppellantAmbalal Motibhai Patel
RespondentState
Appellant Advocate Ghaswala, Adv.
Respondent Advocate Choksy, Govt. Pleader
DispositionAppeal dismissed
Cases ReferredPapa Kamalkhan v. Emperor
Excerpt:
.....of appellant under section 161 and section 5 (2) confirmed - impugned order sustained. - - ultra violet light is used with most success in detecting fluorescent substances. none of the witnesses also says that when the accused stretched out his hands, they failed to notice any marks of white powder. the two tests required to be satisfied by the prosecution to prove the presence of anthracene powder are therefore (1) that no powder was detected with the naked eye; it is, however, contended that in a case like this, ran-chhodbhai is an accomplice and his evidence requires to be independently corroborated. in the case of an interested witness, the courts must always weigh the evidence with particular caution, and if after scrutinizing the evidence of an interested witness, the court..........ultra violet light. it is notsufficient for the prosecution to prove that under the ultra violet light witnesses saw stains of white powder or even that under the ultra violet light they saw some sparkling or some shimmering. none of the witnesses have deposed that when ultra violet light was focussed on the left hand of the accused, there were any signs of sparkling. the only witness to talk of sparkling is the panch motibhai who talks of sparkling when ultra violet light was focussed on bharatsing's hand at the time of the experiment. this witness does not speak of the sparkling on the fingers of the left hand of the accused when ultra violet light was focussed out. mere sparkling is not a positive result. there must be emission of light blue light. none of the witnesses also says.....
Judgment:

Raju, J.

1. This is Criminaa l Appeal by one Ambalal Moti-bhai Patel who in Special Case No. 8 of 1960 was convicted by the Special Judge of Kaira at Nadiad under section 161 I. P. C. and Section 5(2) of the Prevention of Corruption Act.

2. Although the circumstance of the finding of the notes with bribe-taker is absent in this case, the prosecution wants to rely on the finding of the anthracene powder on the fingers of the left hand of the accused immediately after the alleged bribe was taken. It is the evidence of all the witnesses-Ran-chhodbhai, Panch Ghanashyam, Panch Motibhai, Head Constable Bharatsing and P. S. I. Jadeja that when they entered the room of the accused, they asked the accused to stretch out his hand and marks of white powder were seen on all the fingers of the left hand of the accused. The evidence regarding the anthracene powder has been strongly commented upon by. Mr. Ghaswalta. His criticism is that marks of powder could not be seen even under the light of the ultra violate lamp, that no witness speaks of any bluish glow or fluorescence on the fingers of the left hand of the accused, that there is no evidence that the glow on the fingers of the left hand of the accused was similar to the glow noticed at the time of the demonstration made by Bharatsing by applying anthracene powder to his own hands. Bharatsing has deposed that he brought anthracene powder from Baroda and gave a demonstration as to how to detect anthracene powder by using an ultra violet lamp. Anthracene powder is one of many fluorescent substances. There are more than 200 to 300 fluorescent substances the names of which are found in 'Hand Book of Chemistry and Physics by C. D. Hodgman, M. S. 30th Edition pages 2283 to 2294'. Fluorescent substances emit light under the influence of an exciting agent such as ultra violet rays. Ultra violet light is used with most success in detecting fluorescent substances. Ultra violet light is used to excite the substance in question. When a fluorescent substance is excited in such a manner, it emits light of a particular hue. Some fluorescent substances emit green light, some brown, some blue, some yellow, some light blue etc. There are only 3 or 4 substances emitting light blue light under the influence of the exciting agent, ultra violet light. All these fluorescent substances are rare substances and ordinarily, therefore, if the prosecution case is that anthracene powder was applied and that under the influence of the ultra violet lamp light, a light blue light was found emitting from the hands of a particular person, it can be fairly inferred that anthracene powder was present on the hand of such a person. According to the experiment made by Bharatsing, anthracene powder is not visible to the naked eye but visible only under the light of the ultra violet lamp. In such cases, in order to enable a court to draw the inference that what was found on a person was anthracene powder the prosecution must establish that the tests for the detection of anthracene powder had been properly made and had yielded positive results. The main test is the emission of light blue fluorescent light under the influence of ultra violet rays. It is, therefore, essential for the prosecution to prove that there was light blue emission of light under the influence of ultra violet light. It is notsufficient for the prosecution to prove that under the ultra violet light witnesses saw stains of white powder or even that under the ultra violet light they saw some sparkling or some shimmering. None of the witnesses have deposed that when ultra violet light was focussed on the left hand of the accused, there were any signs of sparkling. The only witness to talk of sparkling is the panch Motibhai who talks of sparkling when ultra violet light was focussed on Bharatsing's hand at the time of the experiment. This witness does not speak of the sparkling on the fingers of the left hand of the accused when ultra violet light was focussed out. Mere sparkling is not a positive result. There must be emission of light blue light. None of the witnesses also says that when the accused stretched out his hands, they failed to notice any marks of white powder. According to the prosecution anthracene powder cannot be detected by the naked eye but only under the influence of ultra violet lamp. The two tests required to be satisfied by the prosecution to prove the presence of anthracene powder are therefore (1) that no powder was detected with the naked eye; and (2) that when ultra violet light was focussed, there was emission of light blue fluorescent light. If evidence proved positive results for both these tests, then it would be right to infer that anthracene powder was present, but evidence of this type is completely absent in the present case.

3. Mr. Ghaswalla drew our attention to the book 'Fluorescence Analysis in Ultra Violet Light' by Radley and Julius Grant wherein the following observations are made at page 503:-

'Pure distilled water has practically no fluorescence. The faint blue colour observed has been attributed by S. J. Vavilov and L. A. Tummermann to oxygen or carbon dioxide, since it is also shown by many liquids with similar spectral features (e.g. sulphuric acid, ether, acetone and benzene). Ordinary tap water has generally a faint bluish fluorescence, due, in all probability, to small traces of dissolved organic matter'.

It is, therefore, contended that even the presence of a faint bluish fluorescence does not necessarily prove the presence of anthracene powder, because even tap water, according to these authors, has generally a faint bluish fluorescence. It may be that tap-water in sufficiently large quantities might show traces of faint bluish fluorescence when ultra violet light is focussed. But Mr. Ghaswalla has not pointed out to us any authority for the statement that even a trace of water on the fingers would cause a faint bluish fluorescence to emit from the fingers. We, therefore, reject the contention that the presence of bluish fluorescence does not necessarily prove the presence of anthracene powder. However as already observed, the prosecution has not led evidence in the manner required to prove the presence of anthracene powder on the fingers of a person, viz., by proving that under the naked eye, no marks of any powder were seen and secondly that when ultra violet lamp light was focussed on the hands, there was an emission of light blue fluorescene. In the absence of the evidence of this type, we have to exclude the circumstance on which the prosecution relies -- that anthracene powder was present on all the fingers of the left hand of the accused. In this view of the matter, it is unnecessary to refer to theexplanation of the accused in regard to the stains on the five fingers of his left hand.

4. Although this circumstance is excluded, there is, in our opinion, abundant oral evidence of the prosecution witnesses fortified by the conduct of the accused to prove the fact that a bribe of Rs. 10/- had been taken by the accused. We have already referred to the oral evidence of the witnesses, viz., Ranchhodbhai, panchas Ghanshayam and Motibhai, Constable Bharatsing and P. S. I. Jadeja. There is no reason to reject the evidence of these witnesses in view of the fact that the conduct of the accused makes the prosecution story highly probable. It is, however, contended that in a case like this, Ran-chhodbhai is an accomplice and his evidence requires to be independently corroborated. It is urged that he had agreed to pay bribe of Rs. 10/- to the accused and that therefore he was in the position of an accomplice. In the present case, according to the prosecution, when on 17-8-1959 Ranchhodbhai went to the office of the accused to get the sale-deed registered, the accused took objection and put obstacles in the way of the smooth registration of the document. It was he who demanded a bribe of Rs. 25/- and it was he who agreed to reduce the demand to Rs. 10/-. It is not the case of a person offering a bribe to a person in order to get an undeserved favour but it was a case of a Registrar refusing to do his duty unless a bribe was paid to him. Ranchhodbhai was, therefore, not a willing party. The idea of paying bribe did not originate with him and he was therefore forced to agree to give a bribe, becuse otherwise he thought that his document would not be registered. As observed by their Lordships of the Supreme Court such a person cannot be treated as an accomplice. As observed by their Lordships of the Supreme Court, a person who it not a willing party to giving of bribe and who is only actuated by the motive of trapping another cannot be regarded as an accomplice, but the evidence of such a witness is that of a partisan witness who was out to entrap another. Although their Lordships observed that such a person was a partisan witness, they did not lay down the principle that as he was a partisan witness, his evidence requires to be corroborated by independent evidence. A partisan witness merely means a person who is interested in the prosecution and in bribery cases in the successful laying of a trap and in the successful prosecution of the alleged bribe-taker. In other cases also there may be interested witnesses. If a person is murdered, the relatives of the deceased person may be regarded as interested witnesses, but there is no rule that in the case of an interested witness there must always be independent corroboration. In the case of an interested witness, the courts must always weigh the evidence with particular caution, and if after scrutinizing the evidence of an interested witness, the court finds it safe to accept such evidence, then independent corroboration is not necessary. It may be found in some cases that after scrutinizing the evidence of an interested witness, it is found to be unsatisfactory in some respects. In such cases, independent corroboration would be necessary before the prosecution case can be accepted. This is the principle laid down by their Lordships of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh : 1954CriLJ910 . In that case before the SupremeCourt, the evidence of two witnesses, viz., Nagindas and Sir Chinubhai, was under consideration. Their Lordships observed that a perusal of the evidence ot Nagindas and Sir Chinubhai leaves in the mind the impression that they were not witnesses whose evidence could be taken at its face value, and then their Lordships observed that the evidence of these two witnesses was not satisfactory and could not bo relied upon for implicating the appellant without independent corroboration. Their Lordships referred to independent coroboration because the evidence of the witnesses was unsatisfactory. Their Lordships did not say that even if the evidence of such witnesses is satisfactory and found to be trustworthy and credible, independent corroboration is necessary. The head-note that the evidence of a partisan witness cannot be relied upon without independent corroboration requires to be qualified. The evidence of a partisan witness, which is unsatisfactory, cannot be relied upon for implicating an accused person without independent corroboration.

5. It is also contended by Mr. Ghaswalla that the evidence of panch Ghanashyam also requires corroboration as the panch was interested in the success of the trap laid against the accused. He also relies on the admission of the panch that he did not go inside the office of the accused but stood outside near the window but in a position to see what was going on inside the room. It is, therefore, urged that the panch had contravened the instructions given to him by the P. S. I. Jadeja because he was particularly interested in the success of the trap. The P. S. I. was also interested in the success of the trap, and the fact that the panch Ghanashyam disobeyed the P. S. I. does not therefore show that the panch Ghanashyam was particularly interested in' the success of the trap. Ordinarily when a bribe is given or taken, it is not done in the presence of strangers and in the presence of panchas. In gambling cases ordinarily the punter goes alone; he is not accompanied by a panch. It would be unreasonable to accept that bribe taker would take the bribe in the presence of a panch or a stranger. What the panch did was quite natural in the circumstances and it does not show that he was particularly interested in the success of the trap. He was called as a panch only after the P.S.I. Jadeja decided to lay a trap. Whether a panch acted as a panch-witness after the raid is over or during the course of the raid, he cannot be treated as a partisan witness unless the idea to make a raid originated from him. In order to provide independent evidence of what happened in the course of a raid, it is always necessary that the police should get the assistance of independent panchas and it is not reasonable to stigmatise panchas as not independent hut interested witnesses simply Because they do their duty of providing independent evidence as to what happened in the course of the raid. aS observed by the learned Judge of the Bombay High Court in Ramchand Tolaram Khatri v. The State : AIR1956Bom287

'Panchas whom the police take with themselves before going for a raid cannot be called members of a raiding party. The Panchas have nothing to do with the raid or the operations of the raid. They are not participators in the act of raiding. The decision to effect a raid is the decision of the police.

The panchas are not parties to that decision nor do they subsequently become parties to it at any stage of the raid. The raid is decided upon the information supplied by the informant who is generally the complainant and the panchas have nothing to do with that decision or the result of it viz., the actual raid. Unless the panchas are sharers in the police intention to raid, we fail to see how they can be characterised as components of a raiding party. At no stage ofthe raid does the conduct of the panchas become the conduct of persons actively interested in the result of the raid. The police who are a raiding party, carry out the raid and wish that the raid should succeed. The informant who really initiates the police decision to make a raid would also like that the raid should succeed. Therefore, he too is a member of the raiding party. He is really responsible for bringing about the raid. He would accordingly be a partisan witness, unless he is a willing participator in the crime in which case he would even be an accomplice. But the panchas who are taken to accompany the police have nothing to do with the raid or the result of the raid. They are indifferent about it; It matters nothing to them whether the raid succeeds or foils. They have no partisan interest in the raid or its result. The police do not take them with themselves in order that they should take any part in the raid itself. They are taken merely to see and hear what takes place during the raid which is carried out by the police with the help of the informant. They dispassionately see what takes place during the raid and record.....'

In another case Jairamdas v. State, AIR 1936 Bom 426, it was observed thus:-

'It cannot be said that the evidence of every panch witness who takes part in the laying of a trap in cases of bribery can be regarded as evidence of partisan witness. Whether or not a panch witness in a criminal case is a partisan witness would always de-pend upon the circumstances of each case.....'

6. Their Lordships of the Privy Council also improved of the observations of Beaumont, C. J., in Papa Kamalkhan v. Emperor, AIR 1935 Bom 230 at p. 232 which are as follows:-

'In cases where the payment of the bribe has not been voluntary, very slight corroboration would be sufficient to make the evidence of accomplice admissible against the receiver of the bribe. The rule of the Court which requires corroboration of the evidence of an accomplice as against each accused, if it applies at all, applies with very little force to a case in which the accused is charged with extorting a bribe from other persons. The objections which usually arise to the evidence of an accomplice do not really apply where the alleged accomplice, that is the person who pays the bribe, is not a willing participant in the offence, but is really a victim at that offence'.

7. For these reasons, we hold that in the present case, it is not necessary that there should be independent corroboration of the evidence of Ranobhodbhai panch Ghanashyam and panch Motibhai, if their evidence is found to he satisfactory. For the reasons already given, we hold that the evidence of these witnesses is quite satisfactory. In fact, there is corroboration to the evidence of these witnesses, viz., the conduct of the accused in welcoming Ranobhodbhai he entered the office of the accused,in offering him a cup of tea and showing him the document which had already been registered on the 17th, two days earlier.

8. The oral evidence is quite satisfactory and the conduct of the accused is inconsistent with his innocence.

9. We, therefore, confirm the conviction of the appellant under Section 161 I. P. C. and Section 5(2) of the Prevention of Corruption Act, because the act of receiving a bribe would amount to criminal misconduct as defined in Sub-section (1) of Section 5 of the Prevention of Corruption Act.


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