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In Re: Talari Narainasawmi and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in9Ind.Cas.978
AppellantIn Re: Talari Narainasawmi and anr.
Cases Referred and Ramaswami Gounden v. Emperor
Excerpt:
.....himself to be a bad character. 20. the conviction being based on the evidence of accomplices alone, i have gone through the evidence, and i am satisfied that the prosecution evidence is true......i should be inclined to hold that exhibit k was, strictly speaking, admissible under section 32, indian evidence act: but at best it is only the statement of a deceased person (not cross-examined) who was himself in a minor degree an accomplice, and can add little or nothing to the other evidence in the case.10. the question is whether, allowing all this to be so, the convictions must be set aside as bad in law: in other words, whether the discredit attaching to the prosecution witnesses nos. 4 and 5 as accomplices in the bribery is such that, dealing with the case in revision, we should say that the lower courts were not justified in accepting, and convicting on their evidence.11. according to the learned counsel for the petitioners, if i understand him aright; the legal maxim.....
Judgment:
ORDER

Abdur Rahim, J.

1. The petitioners before us (accused Nos. 3 and 4 before the Magistrate) have been convicted under Sections 161 (taking illegal gratification), 347 (wrongful confinement to extort money) and 384 (extortion) of the Indian Penal Code. They are police constables attached to the Tenali Station. The 2nd accused, whose case is not before us, was the Head Constable of that station. The whole case really depends on the testimony of the prosecution witnesses Nos.4 and 5 and Exhibit K, a statement, made to a Sub-Magistrate under Section 164 of the Criminal Procedure Code by one Virayya who died by the time the petitioners were put on their trial. The statement; is to the effect, that he lent a certain sum of money (Rs. 200) to the prosecution witness No. 4 who came with the prosecution witness No. 5 and the 5th accused on the night of the occurrence and asked for a loan, saying that the money was wanted to be paid to the police in order to procure his (the prosecution 4th witness's) release from custody. This statement does not appear to have been made in the presence of the accused and they had no opportunity of cross-examining Viraya who made the statement. Now, if the statement exposed Virayya to criminal prosecution for abetment of an offence under Section 161 of the Indian Penal Code it must be treated as a statement of an accomplice, and if it did not expose Virayya to criminal prosecution, the statement would be inadmissible. I am inclined to hold that upon that statement Virayya could well be said to have abetted an offence under Section 161 of the Indian Penal Code, although his moral culpability would not be of the same order as that of men who deliberately set about to bribe public servants for their own ends. But, since the statement was not made in the presence of the accused, and it is a statement of an accomplice, very little weight can be attached to it as corroborative evidence.

2. As regards the prosecution witnesses Nos. 4, and 5, the prosecution witness No. 4 is one of the boys who were arrested and he undoubtedly took part in offering and negotiating for the bribe; the prosecution witness No. 5 negotiated and paid the bribe. They are both accomplices. It has been suggested that because the payment was, as a matter of fact, obtained from these witnesses under threat that if the money was not paid the prosecution witness No. 4 would be retained in custody, these witnesses should not be regarded as accomplices. But I cannot agree in that contention. See Queen Empress v. Maganlal and Motilal 14 BK. 115 where the law is fully discussed in the judgments of Jardine and Bayley, JJ.

3. As regards the charges under Sections 384 and 347 of the Indian Penal Code, it seems to me that, if the charge under Section 161 of the Indian Penal Code fails, those charges must also fail. The facts show that there were sufficient grounds {(ft arresting the boys and the money was paid to induce the Police Officers to obtain the release of the prosecution witness No. 4 from custody, to which release the prosecution witness No. 4 might or might not have been entitled. The case is really one under Section 161 and not under Section 384 or 347 of the Indian Penal Code. The case against both the petitioners fails on the ground that there is no sufficient corroboration of the testimony of the accomplices.

4. As against the 3rd accused the evidence, such as it is, does not show that he received any illegal gratification at all.

5. I would, therefore, set aside the convictions against both the accused and' direct their release from jail and that the fines, if paid, be refunded to them.

Ayling, J.

6. Two grounds are advanced in support of this petition; (1) that the conviction, being based on the evidence of accomplices uncorroborated in material particulars, is bad in law and must be set aside for that reason; (2) that the evidence, even if believed, does not establish the complicity of the 1st petitioner (3rd accused in the case).

7. It must be remarked that in the coarse of the hearing before us the learned Counsel for the petitioners made no attempt to show that the evidence adduced by the prosecution was false, or to indicate discrepancies, improbabilities, motives or other circumstances which are usually put forward to impeach oral testimony. His argument was confined to showing that the chief witnesses, the prosecution witnesses Nos. 4 and 5, were implicated in the giving of the bribe to the Head Constable, which forms the subject of the charge under Section 161 of the Indian Penal Code; that they must, therefore, be regarded as accomplices; that apart from Exhibit K, which according to him should not have been admitted in evidence, there is no corroboration of their evidence on the material point of the receipt of the bribe by the accused persons, and that on this ground alone, the conviction must be set aside.

8. I shall not, therefore, discuss the evidence in detail, but will merely remark that, apart from the complicity of these witnesses (prosecution witnesses Nos. 4 and 5), no reason has been advanced, nor do I see any, why the prosecution story should not be accepted: i.e., that, in order to save the prosecution witness No. 4, a boy of 15, from being locked up in the police station for the night, the prosecution witness No. 4 and his uncle, the prosecution witness No. 5, raised a sum of Rs. 200 and paid it to the Head Constable, 2nd accused in the case. The evidence of these witnesses makes it quite clear that although it was the Head Constable who actually negotiated and received the bribe, nevertheless the 4th accused (the present 2nd petitioner) actively assisted him, took the boy and his uncle to the man from whom the money was borrowed (one Virayya, since deceased, whose statement is recorded in Exhibit K), and further took the prosecution witness No. 5 back to the Head Constable, and was present when the money was paid to the latter. The complicity of the 2nd petitioner (3rd accused) is somewhat less clearly established, and will be dealt with later.

9. Now, it may be conceded at once that the case rests on the evidence of the prosecution witnesses Nos. 4 and 5, that both these men must be regarded as technically accomplices in the offence under Section 161, Indian Penal Code, (bribery), though not in those under Sections 347 and 384, Indian Penal Code, and that the corroboration of their evidence on the material point of the receipt of the bribe by the accused persons is so slight, that it may be left out of consideration. I should be inclined to hold that Exhibit K was, strictly speaking, admissible under Section 32, Indian Evidence Act: but at best it is only the statement of a deceased person (not cross-examined) who was himself in a minor degree an accomplice, and can add little or nothing to the other evidence in the case.

10. The question is whether, allowing all this to be so, the convictions must be set aside as bad in law: in other words, whether the discredit attaching to the prosecution witnesses Nos. 4 and 5 as accomplices in the bribery is such that, dealing with the case in revision, we should say that the lower Courts were not justified in accepting, and convicting on their evidence.

11. According to the learned Counsel for the petitioners, if I understand him aright; the legal maxim (embodied in illustration (6) to Section 114, Indian Evidence Act, that the uncorroborated evidence of an accomplice is unworthy of credit, is one which must be applied with unvarying force to every witness to whom the character of accomplice, in whatever degree, can be affixed: and it must further be so applied, that every conviction based on such evidence must necessarily be set aside.

12. The correctness of this argument was fully considered by my learned brother and myself in Vyasa Rao v. Emperor 9 Ind. Cas 897: and for reasons set forth at length in my judgment in that case it seems to me to be not only opposed to the very distinct provisions of Section 133,' Indian Evidence Act, but to go much further than is warranted by the case-law on the point. In my view, while the discredit involved in the character of an accomplice is a point which should always be borne in mind by a Court in appraising the evidence of such a person, yet the degree of discredit will vary enormously in different cases according to the nature of the offence, and of the witness's complicity therein. It is only one of several factors which have to be considered in deciding whether his evidence should be believed or not: where a Court, after giving full weight to this, and other considerations, decides that the evidence is true, it is not only open to it to convict on that evidence, but it is its duty to do so. This, with great deference to the view taken by my learned brother, appears to me to be the general effect of the numerous rulings on the point, the most important of which I have considered in my judgment in the other case R. v. Elahee Buksh 5 W.R. (Cr.) 80 : B.L.R. Sup. Vol. 459 : R. v. Gobardhan 9 AP. 528; Emperor v. Shrinivas 7 Bom. L.R. 969 : 3 Cr. L.R. 33 and Ramaswami Gounden v. Emperor 27 MP. 271.

13. The question for determination then is this: in the present case is the degree of discredit, which attaches to the evidence of the prosecution witnesses Nos. 4 and 5 from their character as accomplices such that the lower Courts were not justified in basing a conviction thereupon? One main reason for distrusting an accomplice is that by his admitted participation in a crime, he shows himself to be a bad character. How far this is so must depend on the nature and circumstances of the crime. The payment of a bribe to a public official must Always be a wrong act: but the circumstances of the present case are such as to render the immorality of a very venial description, especially when we consider the prevailing notions on the subject. The prosecution witness No. 4, a mere lad, was in danger of being locked up for the night in the Police Station on an unformulated charge. Whatever case there may have been against his companion, Narayanasami, as far as the evidence shows, there was nothing against him. So far as appears, his incarceration was threatened by the Head Constable simply and solely to extort money. Looking to the dread of Police custody so commonly felt, and to the youth of (he lad, I should hesitate to say that the payment of the bribe stamps either the boy or his uncle as a person of a lower moral character than the average witness. And, as has been pointed out in more than one reported case, in bribery cases the other reasons for distrusting an accomplice (viz., that he is giving evidence under promise of pardon, and to screen himself) are entirely absent.

14. I do not consider that we should be justified in setting aside the conviction merely on account of the complicity of the prosecution witnesses Nos. 4 and 5 in the bribery.

15. The next question is, whether the evidence is sufficient to establish, the guilt of the 3rd accused. It amounts simply to this. He is stated to have been present with the accused Nos. 2 and 4, when negotiations regarding the bribe were proceeding. What part, if any, he took is not clear: but the prosecution witnesses Nos. 4 and 5 both speak of the three men as acting conjointly, though the Head Constable was, no doubt, the leader after the bribe was settled the 3rd accused, is said to have been sent with the other boy Narayanasami to the Police station: but he returned to the Head Constable's house, after locking up Narayanasami, and according to the prosecution witness No. 5, stood at the door, while he (prosecution witness No. 5) and The 4th accused took the money in and paid it to the Head Constable. I think the 3rd accused's return to the Head Constable's house at 3 A. m., for which no innocent explanation is offered tends strongly to show that he was in the conspiracy; and no attempt appears to have been made to cross-examine the prosecution witnesses Nos. 4 and 5 on their somewhat general statements regarding his joining in the negotiations. He appears to have played a very minor part in the offence and, I think, would be adequately punished by a short term of imprisonment, say three, months. But I am not prepared to interfere with the conviction.

Abdur Rahim, J.

16. As my learned brother holds a different view, the case must be placed before a third Judge for disposal.

17. The case was laid before Sankaran Nair, J., who passed the following

Order

18. I see no reason to interfere with the conviction of the petitioners. The petitioners are Police Constables attached to the Tenali Police station. They arrested the prosecution 4th witness, a boy of fifteen, and it is the prosecution case that to prevent him from being locked up in the Police station for the night, he and his uncle, P.W. No. 5 raised a loan of Rs. 200 and paid it to the Head Constable, the 2nd accused. The 3rd and 4th accused assisted him and were acting with him throughout in this matter.

19. The evidence of the 4th and 5th prosecution witnesses, if believed, prove the prosecution ease. But it is contended that as they are accomplices their evidence must be disregarded in the absence of any material corroboration. I agree that there is no corroboration. But a conviction based on the uncorroborated testimony of an accomplice is not illegal, though I am of opinion that it should not be accepted unless for special reasons. Such reasons exist in this case. The money was paid under circumstances which do not show any moral turpitude on the part of these witnesses though I am aware that it is always wrong to bribe an official. The boy was not guilty of any offence. Police custody, a night in a Police station, is always dreaded; and the money was paid to prevent this unlawful detention and the consequence that the 4th and 5th witnesses apprehended might follow from it. Money paid under these circumstances cannot be treated as a voluntary payment. There is nothing to suggest that they gave their evidence to prevent any unpleasant consequences to themselves. They did not make any complaint but the proceedings had their origin in the suspicion aroused in the mind of the prosecution 1st witness, Inspector, on perusing the diary of the 2nd accused.

20. The conviction being based on the evidence of accomplices alone, I have gone through the evidence, and i am satisfied that the prosecution evidence is true. I see no reason to interfere with the sentences. I, therefore, dismiss the petition.


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