# BHANUPRASAD HARIPRASAp DAVE RAJUJI GAMBHDUI v. THE STATE OF Gl)JARAT

- **Citation:** [1969] 1 S.C.R. 22
- **Court:** Supreme Court of India
- **Decided:** 1968-04-19
- **Bench:** G. K Mitter, c. A. VAIDIALINGAM, K. s. HEGDE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhanuprasad-hariprasap-dave-rajuji-gambhdui-v-the-state-of-gl-jarat-4386
- **Pages:** 10

## Headnote

B
Code of Cri111inal Procedure (5 of 1898) ss. 161 and 162-Firsr invcsrj ..
gation by ·a police officer held illegal-Subsequent investigation ordercd1vhelher first investigation non est.
Indian EVidence Act (1 of 1872)-Evidence of partisan lvitnessesCorroboration, if necessary . ..
Bombay Police Act (Dom. 22 of 1951) s. 161(1)-Investigation after
C
six nzonths--W~ien can be done.
A postcard written by R to a lady M requesting her to ask another
lady to meet him, was made over to the first appellant-a police SubInspcctor.
The first appc1lant asked the second appellant-his
writ~r·
constable--to fetch R. On his arrival, R was asked to pay money othetWise
he would be harassed.
R approached the Deputy Superint;ndent of Police,
Arlti-Corruption Department, as a result of which ·a trap '\\·as luid and the
D
currcf'Jcy notes treated with anthracene given to R for the payment.
R and
.one D went to the first appellant, V(hO directed R to pay it to the second
4 appellant.
The first appellant took out the postcard, tore jt and burnt it,
\Vhile R paid the money.
Another I>oJicc Sub-Inspector and
constable,
both belonging to the Ant.i-Corruption Department we.re keeping a watch
from nearby compound. The second appcUant \Vent to L\VO shops
and
changed some currency notes
there.. The Dy. S.P.
searched the,
first
appcJlant but nothing incriminating was found, he seized ithe burnt pjeccs
E
of .postcard, some of the unburnt pieces 'vcre recognised by R.
The Dy.
S.P. seized the curr;ency notes fron1 the shops and their nun1ber tallied.
The second appellant was arrested and considctable anthracene powder was
found on his person. The appellanitS were tried under ss. 161 and I65A
JP~ and ss. 5(I)(d) and 5(2) of the Prevention of O:>rruption Act by
'SpeciaJ Juc!ge, AhmeQaQad.
An objection was taken to the trial that in
view of Bombay State Commissioner of Police Act, 1959, the invc>l!igation
F
should have been made by a Superintendent of Police as there \Vas a Police
Commissioner: in that .city, which :w~s upheld
nn.d a frc.Sh investigation
c•rdered by a Superintendent of Police.
Because u( the fresh investigation~
·in respect of most witnesses, the police diary' coritained two statements
one recorded by the Dy. S.P. and the other by ¢be S.P. While deposing
-in the trial Cow;t. M asserted. that she had destroyed the postcard as soon
as she reacf it, and She was cross-examined by the prosec.qtion in reference
:o her earlier ·statement to the Dy. S.P. to the effect that she had given the
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·postcard to the first appellant.
The Trial O:>urt accepted the prosecution
case and convicted the appellants, which was upheld by the High Court.
In appeal before this Court, dhe appellants contended that (i) in view of
·the orde-.r of reinvestigation, the record of the investigation made hy the
Dy. S.P. stood wiped. out, and therefore M could not have been cross-
-examined with reference rtbereof; (ii) tHe conviction could not solely be
"hased on the evidence of R and Po1ice 1witnesses, who \Vere all interested
'vitnesses; (iii) no offence. was made out under s. 161 TPC as the prosocuff
1ioo had to establish that tbev were public servants and had ob!ainod illegal
·}'.!:ratification for showing or forbearing tq show in exercise of their official
itinctions, favour, or disfavour to R; and (iv) the prosecution v:as barred
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' BHANUPRASAD v. GUJARAT (Hegde, !.)
23
A
by limitation bys. 16l(i) of the Bombay Police Act, 1951 as it was instituted more than six months of the offence.
HELD: Th,e appeal must be dismissed.
(i) '[hough the first investjgation \\'as not in accurdance law, but yet
it \Vas in no sense. 11011...::st.
investigation includes laying of trap. That
part of the· investigation \Vas done by the Dy. S.P. The statements recorded
ti
hy the Dy. S.P. in the Course of his investigation, though the investigation
in question \Vas illegal, were still si:atcments recorded by a police officer
in the course of investigation under Chapter XIV of the Code o

## Text

22
BHANUPRASAD HARIPRASAp DAVE RAJUJI GAMBHDUI
v.
THE STATE OF Gl)JARAT
April 19, 1968
A
[G. K MITTER, c. A. VAIDIALINGAM AND K. s. HEGDE, JJ.]
B
Code of Cri111inal Procedure (5 of 1898) ss. 161 and 162-Firsr invcsrj ..
gation by ·a police officer held illegal-Subsequent investigation ordercd1vhelher first investigation non est.
Indian EVidence Act (1 of 1872)-Evidence of partisan lvitnessesCorroboration, if necessary . ..
Bombay Police Act (Dom. 22 of 1951) s. 161(1)-Investigation after
C
six nzonths--W~ien can be done.
A postcard written by R to a lady M requesting her to ask another
lady to meet him, was made over to the first appellant-a police SubInspcctor.
The first appc1lant asked the second appellant-his
writ~r·
constable--to fetch R. On his arrival, R was asked to pay money othetWise
he would be harassed.
R approached the Deputy Superint;ndent of Police,
Arlti-Corruption Department, as a result of which ·a trap '\\·as luid and the
D
currcf'Jcy notes treated with anthracene given to R for the payment.
R and
.one D went to the first appellant, V(hO directed R to pay it to the second
4 appellant.
The first appellant took out the postcard, tore jt and burnt it,
\Vhile R paid the money.
Another I>oJicc Sub-Inspector and
constable,
both belonging to the Ant.i-Corruption Department we.re keeping a watch
from nearby compound. The second appcUant \Vent to L\VO shops
and
changed some currency notes
there.. The Dy. S.P.
searched the,
first
appcJlant but nothing incriminating was found, he seized ithe burnt pjeccs
E
of .postcard, some of the unburnt pieces 'vcre recognised by R.
The Dy.
S.P. seized the curr;ency notes fron1 the shops and their nun1ber tallied.
The second appellant was arrested and considctable anthracene powder was
found on his person. The appellanitS were tried under ss. 161 and I65A
JP~ and ss. 5(I)(d) and 5(2) of the Prevention of O:>rruption Act by
'SpeciaJ Juc!ge, AhmeQaQad.
An objection was taken to the trial that in
view of Bombay State Commissioner of Police Act, 1959, the invc>l!igation
F
should have been made by a Superintendent of Police as there \Vas a Police
Commissioner: in that .city, which :w~s upheld
nn.d a frc.Sh investigation
c•rdered by a Superintendent of Police.
Because u( the fresh investigation~
·in respect of most witnesses, the police diary' coritained two statements
one recorded by the Dy. S.P. and the other by ¢be S.P. While deposing
-in the trial Cow;t. M asserted. that she had destroyed the postcard as soon
as she reacf it, and She was cross-examined by the prosec.qtion in reference
:o her earlier ·statement to the Dy. S.P. to the effect that she had given the
G
·postcard to the first appellant.
The Trial O:>urt accepted the prosecution
case and convicted the appellants, which was upheld by the High Court.
In appeal before this Court, dhe appellants contended that (i) in view of
·the orde-.r of reinvestigation, the record of the investigation made hy the
Dy. S.P. stood wiped. out, and therefore M could not have been cross-
-examined with reference rtbereof; (ii) tHe conviction could not solely be
"hased on the evidence of R and Po1ice 1witnesses, who \Vere all interested
'vitnesses; (iii) no offence. was made out under s. 161 TPC as the prosocuff
1ioo had to establish that tbev were public servants and had ob!ainod illegal
·}'.!:ratification for showing or forbearing tq show in exercise of their official
itinctions, favour, or disfavour to R; and (iv) the prosecution v:as barred
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' BHANUPRASAD v. GUJARAT (Hegde, !.)
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by limitation bys. 16l(i) of the Bombay Police Act, 1951 as it was instituted more than six months of the offence.
HELD: Th,e appeal must be dismissed.
(i) '[hough the first investjgation \\'as not in accurdance law, but yet
it \Vas in no sense. 11011...::st.
investigation includes laying of trap. That
part of the· investigation \Vas done by the Dy. S.P. The statements recorded
ti
hy the Dy. S.P. in the Course of his investigation, though the investigation
in question \Vas illegal, were still si:atcments recorded by a police officer
in the course of investigation under Chapter XIV of the Code of Criminal
Procedure an.ct consequently they fell within the scope of ss. 161 and 162
of the Code. [27C-F]
S. N. Bose v. State of Bihar, Cr. A. 109 of 1967 decided on March 26,
1968; H. N. Rishbud v. Tile State of Delhi. [1955] 1 S.C.R. 1150; ano The
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State of Bifwr v. Basawan Singh, [1959] SCR. 195, followe<I.
D
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(ii) While in the case of evidence of an nccon1plioe no conviction can
be, based on his evidence unless it is corroborated in material particulars
but as regards the evidence of a partisan witness it is open to a courrt to
convict an accused solely on that evidence, if it is satisfied that that evidence
is reliable. But it may in appropriate case look for coroboration. In this
case, R and the police witnesses could not be said to be aCcomplices, and
both the courts bclO\\' have fully accepted their evidence.
So, it was open
to then1 to convict the appellarn~s on the basis of their evidence. That
apart their e.vidence, ¥.'as ~ubstantially corroborated by the evidence of D
and the shopkeepers. [29B-D]
The State of Bilwr v. Basawan Sill/ih, [1959] S.C.R. 195; followed.
Rao Shiv Bahadur Singh v. State of T7indhya Pradesh, [1954]
S.C.R.
1098, overruled.
Major E.G. Bar.my v. The Swte of Bombay; [1962] 2 S.C.R.
195,
distinguished.
(iii) Offence under s. 161 IPC was made out. The question whether
there was any offence which the first appellant could have investigated or
not was irrc]evant. If he bad used his official position to extract i1legal
F
gratification, the requirement of law was satisfied. [29F]
G
II
Mahesh Prasad v. The State of U.P. (1955] 1 S.C.R. 965: Dhaneshwar
Narain Saxena v. The Delhi Adn1inistratio11, [1962] 3 S.C.R. 259, followed.
(iv) Section 161(1) of the Bombay Police. Act, 1951 was in.applicable
to 1this case. The appellants could not be said to have received
bribe
under the colour of their duty.
There was no connection between the
<luties to be performed hy them and the rcceiPt of the bribe in question.
All that. could be said was that the first appellant a police office!'. taking
advant~ of his position as a police officer and availing himself of the
opportunity afforded by the letter M handed over to him coerced R to pay
illegal gratification to him.
This could not be said 1to have been done
"und.er colour of duty". The charge against the second appellant was that
he aided the first appellant in his illegal activity. [30G-3!A]
The State of Andhra Pradesh v. N. Venugopa/,
[1964] 3 S.C.R. 742,
referred to.
v~·rupaxappa Veerappa Kadan1pur v. The State
Supp. 2 S.C.R. 6, held inapplicable.
of Mysore,
[1963]
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SUPREME COURT REPORTS
(1969 j J S.C.R.
CRIMINAL APPELLATE JUR!SD!CT!O~ : Criminal Appeal No.
A
155 of 1965.
Appeal by special leave from the judgment and order dated
September 8, 9, 10, 1965 of the Gujarat High Court in Criminal
Appeal No. 538 of 1964.
M. R. Barot and R. Gopalakrislman, fo~ the appellants.
a
P. K. Chatterjee, R. Ii. Dhebar and S. P. Nayyar, for the
respondent.
The Judgment of the Court was delivered by
Hegde, J. The appellants in this appeal arc two police officers.
The first appellant Bhanu prasad Hariprasad Dave was the police
Sub-Inspector and the second appellant, Rajuji Gambhirji, was
his writer constable in February 1963.
At that time both of
them were attached to the Navrangpura police station, Ahmedabad.
They were tried and
convicted by the Special
Judge,
Ahrnedabad, for offences wider s. 161 read with s. 165-A of the
Indian Penal Code ands. 5(i)(d) read with s. 5(2) of the
Prevention of Corruption Act, (No. 2 of 1947), and for those
offences each of them was sentenced to suffer rigorous imprisonment for two and half ye.1rs and a ftnc of Rs. 1,000, in default
to suffer further rigorous
imprisonment for year.
The judgment of the learned Special Judge was at!im1ed by the High Court
of Gujarat. It is against that judgment. this appeal has
been
filed, after obtaining special leave from this Court.
To state briefly, the prosecution case is as follows : Ramanlal.
the complainant in this case, wrote a postcard on February 11,
1963 to one Madhukanta, a lady teacher, requesting her to ask
Chandrakanta, another lady teacher wurkin!\ with her, to meet
him in connection with certain work.
Therein he also wrote that
he would be glad ii Madhukanta could accompany Chandrakanta.
The headmaster of the school where Madhukanta and Chandrakanta were working, happened to read that postcard.
She took
Madhukanta to task for allowing strangers to write to her in that
manner.
Piqued by the oonduct of RamanlaJ,
Madhukanta
made over the postcard in question to the first appellant, probably
with a request that Ramanlal might be pulled up for his conduct.
On February 16, 1963, the first appellant sent the second appellant
to fetch Ramanlal to the police station.
On his arrival at the
police station. Ran1anlal was abused and slapped by the
first
appellant.
He threatened to take action against him and aft.er
some time he told him that unless he paid him a sum of Rs. I 00
he would be harassed.
With a view to get out of the situatiun.
Ramanlal agreed to pay the sum demanded.
But when he went
to draw the required amount from his hank. as that day was a
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BHANUPRASAD v. GUJARAT (Hegde, J.)
25
Saturday the bank had been closed by the time he went there.
He the ref ore asked ·the first appellant time for payment till ~e
18th. The first appellant agreed to the same. On the. mormn,g
of 18th, Ramanlal met the Deputy Superintend~nt of Police, ~n~,
Corruption Department, and complam~d to ~
about the. m~1dent in question.
He was asked to give a wntten complamt m
that regard which he did.
Thereafter he produced before the
Dy. S.P. ten currency-notes of Rs. 10 each.
The numbers .of
those notes were noted and then those notes were treated with
anthracene powder. Ramanlal was asked to give those not~ to
the first appellant if he made any further demand for bnbe.
Thereafter he was sent to the police station with the
pa~ch
witness, Dahyabhai.
But when they went to the police station
they found
that the first
appellant was not there. They
were told that he had gone to attend court.
Hei;ice Ram'.111lal and Dahyabhai returned to the office of the Ant1-Corrupllon
Department and reported to the Dy. S.P. about the same.
Under
instructions from the Dy. S.P. he again went to the office of the
Anti-Corruption Department on the evening of that day with
currency-notes.
Those notes were again treated with anthracene
powder and their numbers noted.
Ramanlal was again senCto
the police station with Dahyabhai on that evening at about 5-3e
p.m.
When they went there, the first appellant was not there,
but the second appellant was there.
He told them that the fii:St
appellant was expected in the station at any moment. Thereafter
the second appellant, Ramanlal and Dahyabhai went to a nearby
tea-shop and took tea.
By the time they returned to the μolice
station the first appellant was there.
Rarnanlal told the first appellant that he had brought the money. Then B.e asked hint to pay
the same to the second appellant who was in one of the rooms of
the police station.
When Ramanlal went to pay the money to
thl'. second appellant, the first appellant took out the μostcard
wntten by Ramanlal to Madhukanta, showed it to Dahyabhai
and thereafter tore it to pieces and burnt it.
Meanwhile Rarnanlal went and paid the currency-notes in question to the second
appellant.
While Ramanlal and Dahyabhai were in the police
. station, police Sub-Inspector Erulker and constable Santramji,
?"th belonging to the Anti-Corruption Department, were observmg from a nearby compound the happenings in the police station.
The second appellant immediately on receiving the notes in question left the 1'blice station.
But he was followed by constable
Santramji.
From the police station the second appellant first
went to the shop of one Sanghvi and changed one of the currencynotes.
From there he went to the pan shop of Sendhalal and
there changed three more currency-notes.
Thereafter constable
Santramji was not able to keep track of him.
Meanwhile when
things did not go according to plan, Ralll'1nlal
was somewhat
confused.
He after paying the amount to the second appellant
UOSup.CJ/68-3
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SUPREME COURT REPORTS
(1969] I S.C.R.
straight rused back to ~e Dy. S.P. and told hi.Jn what had happened ~t the police sta!Ion.
Immediately, the Dy. S.P. rushed to
the police stallon and there he searched the person of the first
appe!l~t, but nothing incriminating was found.
He seized the
burnt pieces of the postcard.
Some of the unburnt pieces were
recognised by Ramanlal as portions of the postcard written by
hi.Jn to Madhuk.anta.
From there the Dy. S.P. proceeded to the
shop of Sangh".1 and Sendhalal and seized the currency-nole6
changed m the1r shops by the second appellanL
Their numbers
tallied with the numbers of the notes earlier handed over to
Ramanlal after being treated with anthracene powder.
Those
notes were full of anthracene powder.
The same night the
second appellant was arrested and at that time it was found there
was considerable anthracene powder on his person.
After investigation the appellants were prosecuted for the offences mentioned earlier.
Both the trial court and the High Court have accepted the
prosecution case.
This Court being a court of special jurisdictiQJ\ does not examine the evidence afresh except under exceptional circwnstances.
No good reasons were shown to us for
departing from the ordinary rule.
Hence we proceed on
the
basis that the findings of fact reached by the High
Court are
.correct.
Before proceeding to examine
the various contentions ad-
"Vanced on behalf of the appellants it is necessary to mention that
in this case there were two investigations.
As seen earlier the
trap in this case was laid by the Dy. S.P., Anti-Corruption Department.
He was the person who investigated the case and laid the
charge-sheet.
But when the case came up for trial before the
learned Special Judge objection was taken to the trial of the case
on the ground that in view of the provisions of the Bombay State
Commissioner of Police Act, 1959, the investigation in this case
should have been made by a Superintendent of Police as there
was a Police Commissioner for the city of Ahmedabad.
The
learned Special Judge accepted that contention and directed
a
fresh investigation to the extent possible by one of the Superintendents of Police.
A fresh investigation was accordingly made;
but naturally nothing afresh could be done so far as the trap was
concerned.
Because of the fresh investigation, in respect of most
of the prosecution witnesses, the police diary contained, two statements one recorded by the Dy. S.P. and the other by the S.P.
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Jn the course of the trial of the case,
several prosecu~on
witnesses were alleged to have gone back on th_e ~tatements given
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by them during investigation. .With ~he perrmss1on of t~e court
some of them were c~ss-e_xam1J?Cd .with refe.rence to. thc!r statements recorded during the mves!Iga!Jon. Whtie deposing m court
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BHANUPRASAD v. GUJARAT (Hegde, J.)
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Madhukanta asserted that she had destroyed the postcard written
by Ramanlal as soon as she read the same whereas both Ramanlal ·
as well as the panch witness Dahyabhai had deposed that the first
appellant had shown them the postcard in question.
With the
permission of the court the learned Public Prosecutor crossexamined Madhukanta with reference to her statement
given
before the Dy. S.P. wherein she appears to have stated that she
had given the postcard in question to the first appellant.
Mr.
Barot, learned counsel for the appellants, strenuously contended
that in view of the order of the Special Judge, directing re-investigation, in law, the record of the investigation made by the Dy. S.P.
stood wiped out, and therefore Madhukanta should not have been
cross-examined with reference to the statement alleged to have
been made by her during the first investigation.
We are unable
to accept this contention as correct. It is true that the first investigation was not in accordance with law, but it is no sense
non-est.
Investigation, as held by this Court in S. N. Bose v.
State of Bihar('), includes the laying of trap.
That part of the
investigation was admittedly done by the Dy. S.P. The statements
recorded by the Dy. S.P. in the course of his investigation; though
the investigation in question was illegal, (see, H. N. Rishbud v.
the State of Delhi (2), are still statements recorded by a police
officer in the course of investigation under Chapter XN of the
Code of Criminal Procedure and consequently they fall within
the scope of ss. 161 and 162 of the said Code. Neither in Rishbud's case(') nor in S. N. Bose's case('), where investigations
had been carried on in contravention of s. 5-A of the Prevention
Corruption Act, this Court considered those investigations as
non-est.
Both the trial court and the High Court have accepted
the evidence of Ramanlal and Dahyabhai in preference to that of
Madhukanta that the first appellant was in possession of the postcard in question on February 18, 1963.
This is essentially a
finding of fact.
In our judgment in coming to that conclusion
those courts did not ignore any legal principle.
It was next contended by the learned counsel tor the
appellants that the appellants were convicted solely on the basis
of the testimony of Ramanlal, the Dy. S.P. Erulker and Santramji,
who, according to him, are all interested witnesses
and their
evidence not having been corroborated by any independent evidence, the same was insufficient to base the conviction of the
appellants.
Before examining this contell,_tion it !J1ay be mentioned that so far as Dahyabhai was concerned, he appeared to have
turned hostile to the prosecution at the trial.
He supported the
evidence of Ramanlal in some respects; but in most important
respects he did not support the prosecution' case.
He admittee
(!) Cr. A.109/1967, decided on March 26, l9<0'l.
(2) [1955) 1 S.C.R. ll50.
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SUPREME COURT REPORTS
(1969] I S.C.R.
to have accompanied Ramanlal both in che morning and on the
evening of the 18th.
He also admitted that he and Ramanlal
met a police Sub-Inspector in the police station who showed them
the postcard written by Ramanlal
to
Madhukanta.
He also
corroborated Ramanla! about the talk that Ramanlal had with
that Sub-Inspector, in connection with the payment of
bribe.
But when it came to the question of identifying that Sub-Inspector,
he denied that it was the first appellant.
He also did not identify
the second appellant.
It was obvious that the had been gained
over. So far as Sanghvi is concerned, he admitted that a police
constable in unilwm came to his shop on the evening of the
18th and changed a ten-rupee corrency-note.
But he stated that
he was not able to say whether that constable was th~ second
appellant. Sendhalal deposed that a person came to him on the
evening of the I 8th and changed three ten-rupee currency notes.
He also stated that he was unable to say whether it was
the
second appellant who changed those notes; he went a step further and stated that the person who came to his shop was not in
uniform.
But the fact remains !hat the currency-notes seized
from the shops of Sanghvi and Sendhalal are the very notes whose
numbers had been earlier noted by the Dy. S.P. and further treated
with anthraccne.
There is the evidence of constable Santramji
to establish that !he notes in question were changed at the shops
of Sanghvi and Sendhalal by. the second appellant.
The trial
court as well as the High Court
accepted
the
evidence
of
Dahyabbai, Sanghvi and Sendhalal to the extent it supported the
prosecution case and rejected the rest.
It was open for those
courts to do so.
Now coming back to the contention that the appellants could
not have been convicted solely on the basis of the evidence of
Ramanlal and the police witnesses, we are of opinion that it is
an untenable contention.
The utmost that can be said against
Ramanlal, the Dy. S.P., Erulker and Santramji is that they are
partisan witnesses as they were interested in !he success
of the
trap laid by them.
It cannot be said-and it was not saidthat they were accomplices.
Therefore, the law docs not require
that their evidence 'hould be corroborated before being accepted
as sufficient tu found a conviction. This position is placed beyond
controversy by the decision of this Court in the State of Rihar v.
Basawan Singh('), wherein this Court laid down, overruling the
decision in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh(2) that where the witnesses are not accomplices but are
merely partisan or interested witnesses. who are concerned in the
success of the trap, their evidence must be tested in the same way
as any other interested evidence is tested. and in a proper case,
the court may look for independent corroboration before cOnvict___.._
(I) [1959) S.C.R. 195.
CCI
[1954) S.C.R. iO<>i .
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BHANUPRASAD v. GUJARAT (Hegde, J.)
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ing the accused person.
We are unable to agree that any different
rule was laid down in Major E. G. Barsay v. The State of
Bombay (1). It must be remembered that the decision in Basawan Singh's case(2) was given by a Bench of Five Judges and
trat decision was binding on the Bench that decided Major Barsay's
case('). Some of the observations in Major Barasay's case(1) no
doubt support the contention of the appellants.
But those observations must be confined to the peculiar facts of that case. It is
now well settled by a series of decisions of this Court that while
in the case of evidence of an accomplice, no conviction can be
based on his evidence unless it is corroborated in material particulars but as regards the evidence of a partisan witness rt is open
to a court to convict an accused person solely on the basis of that
evidence, if it is satisfied that that evidence is reliable.
But it may
in appropriate case look for corroboration.
In the instant case,
the trial court and the High Court have fully accepted the evidence
of Rarnanlal, the Dy. S.P., Erulker and Santramji.
That being
so, it was open to them to convict the appellants solely on the
basis of their evidence. That apart, their evidence is substantially
corroborated by the evidence of Dahyabhai, Sanghvi and Sendhalal.
In the case of partisan witnesses, the corroboration that may
be looked for is corroboration in a general way and not material
corroboration as in the case of the evidence of accomplices.
It was next contended that even if we accept the prosecution
case in full, no offence can be said to have bee.n made out under
s. 161 of the Indian Penal Code.
We are unable to accept that
contention.
To establish the offence under s. 161 of the Indian
Penal Code all that prosecution had to establish was that the
appellants were public servants and that they had obtained illegal
gratification for showing or forbearing to show, in the exercise of
their official functions, favour or disfavour to Ramanlal.
The
question whether there was any offence which the first appellant
could have investigated or not is irrelevant for that purpose. If
he had used his official p'OSition to extract illegal gratification the
requirements of the law is satisfied.
This position is made clear
by the decision of this Court in Mahesh Prasad v. The State of
U.P.( 3 ) and Dhaneshwar Narain Saxena v. The Delhi Administration(4).
Lastly we come to the question whether the prosecution was
barred bys. 161(1) of the Bombay Police Act, 1951 (Bombay
Act 22 of 1951), which, to the extent material for our present
purpose, says that in any case of alleged offences by a police officer
or of a wrong alleged to have been done by such officer by any
(I) [1962] 2 S.C.R. 195.
•
(2) [1959] S.C.R. 195.
(3) [1955] I S.C.R. 965.
(4) [1962] 3 S.C.R. 259 .
•
•
30
SUPREME COURT REPORTS
[1969] I SC.R.
acL done under colour or in excess of any such duty or authority
as mentioned in that Act, the prosecution shall not be entertained
or shall be dismissed if instituted, more than six months of the
act complained of.
Admittedly, the prosecution in this case was
instituted more than six months af1cr February 18, 1963, the day
on which illegal gratification was obtained.
!n support of the
contention that the prosecution is barred by limitation, reliance
was placed on the decision of this Court in Virupaxappa Veerappa
Kadampur v. The State of Mysore(').
Therein a head constable
was charged under s. 218 of the Indian Penal Code. The prosecution case was that on February 23, 1954 on reccipl of some
information that some persons were smuggling ganja, the headconstable arrested a person with a bundle containing 13 packets
of ganja and seized them. and in the panchnama he incorrectly
showed the seizure of nine packets of i:anja, and that on the next
day he however prepared a new report in which it was falsely
recited that the person with the bundle ran away on seeing the
police after throwing away the bundle containing nine packets of
ganja. 111e allegation against the head-amstable was that the prepared a false report with the dishonest intention of saving the
person concerned from whom the ganja was seized and who had
been actually caught with ganja, from legal punishment.
This
Court held that under s. 161 of the Bombay Police Act, 1951,
the words "under colour of duty" have been used to include acts,
done under the cloak of duty, even though not by virtue of the
duty; that when the head-constable prepared a false report he was
using the existence of his legal duty as a cloak for his corrupt
action and that, therefore. the act thus done in derelictinn of his
duty must be held to have been done "under colour of duty''.
The rule laid down in that decision is inapplicable to the facts of
the present case.
In Virupaxappa Veerappa Kadampur's(') case,
the head-constable in que1Jion had a duty to prepare the panchnama and the report.
He by taking advantage of..that duty prepared a false panchnama and false repcrt and therefore it wa'
held that what he did was under the colour of duty. In the present
case the appellants cannot be said to have received the bribe under
the colour of their duty. There was no connection between the
duties to be performed by them and the receipt of the bribe in
question.
The facts of the present case bear some similarity to
the facts in the State of Andhra Pradcs/1 v. N. Vcnugapol(') and
the rule laid down therein bears on the question under discussion.
All that can he said in the present case is that the first appellant
a police officer, taking advantage of his pmition as a police offir.cr
and availing himself of the opportunity afforded
by the letter
Madhukanta handed over to him, coerced Ramanlal to pay illegal
gratification to him. ThJs cannot be said to have been done under
(I) [I 963] St1pp. 2 S.C.R. 6 .
(2) p 964] J S.C. H. 742.
•
•
B
c
D
F
-
G
H
A
B
.
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I
BHANUPRASAD v. GUJARAT (Hegde, J.)
31
colour of duty. The charge against the second appellant is that
he aided the first appellant in his illegal activity.
For the reasons mentioned above, this appeal fails and the
same is dismissed.
The appellants who are on bail shall surrender
forthwith to serve the remaining portion of the sentences imposed
on them.
Y.P .
Appeal dismissed.
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