# SAT PAL v. DELHI ADMINISTRATION

- **Citation:** [1976] 2 S.C.R. 11
- **Court:** Supreme Court of India
- **Decided:** 1975-09-29
- **Case number:** Criminal Appeal No. 137 of 1971
- **Bench:** P. N. Bhagwati, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sat-pal-v-delhi-administration-6698
- **Pages:** 21

## Headnote

Evidence-Trap witnesses and witnesses with bad
antecedents-Necessity
jor corroboration by independent evidence.
Evidence Act (1 of 1872) ss. 8 and
154-'Hostile'
witness-Weight of
evidence of-Silence as conduct.
Code of Criminal Procedure (Act 5 of 1898) s. 162-Statements recorded
during investigation-Use of.
The appellant, an Assistant Sub Inspector, attached to the railway station,
was convicted under s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act, 1947, and s. 161, l.P.C.
The evidence against him was that the
arrested P.W. 1, took away Rs. 30/. from him and demanded an additional
Rs. 70/- for releasing him. These facts were spoken to by P.W. 1 and P.W. 2
and P.W. 8 who were the women companions of P.W. 1. The evidence regarding
the payment of Rs. 70/- and its recovery was spoken to by P.W. 7, a friend of
P.W. 1 who brought the money, and P.W. 9, the Inspector attached to the Anti-
·Corruption Police who set the trap for catching the appellant. Two items of circumstantial evidence on which the trial court relied were, (a) that P.W. 1 was
found detained by the appellant at the Police Station; and (b) that the accused
kept silent when P.W. 9· accused him of having taken a bribe. P.Ws. 3 and 4
were the panch witnesses who were present at the time of the recovery of the
tainted currency notes from the appellant. They turned 'hostile' to the prosecution
but in cross-examination, supported the prosec.ution .regarding the silence of the
appellant when accused of having taken the bribe. P.W. 3 fqrther supported the
prosecution to ~he extent that the solution turned pink when the hands and the
pocket of the pants of the appellant were dipped in it.
The conviction of the appellant was confirmed by the High Court.
Allowing the appeal to this Court,
HELD : ( 1) This Court ordinarily does not review the evidence and disturb
concurrent findings of fact unless the findings are clearly unreasonable or vitiated
by illegality or material irregularity of procedure or are otherwise contrary to
the fundamental principles of natural justice and fair-play. In the present case,
the trial court and ,the High Cour.t have not only. used the statements of certain
witnesses in a manner which is improper or impermissible under the law, but
also erred in accepting the testimony of interested witnesses without the caution
and corroboration requisite in the peculiar circumstances of the case. [20B-D].
(2) There can be no general rule of universal application for weighing
evidence.
There is also no absolute rule that the evidence of an interested
witness cannot be accepted without corroboration.
But where the witnesses
have poor moral fibre and have to their discredit many bad antecedents, ?nd
have a motive to implicate the accused, as P.W. 1, 2, 7 and 8 have agamst
the appellant, it would be hazardous to accept their testimony in the absence of
corroboration; on crucial points fro)Il independent sources. '[22G-H].
R. P. Arora v. State of Punjab, A.I.R. 1973 S.C. 498, referred to.
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(3) P.Ws. 1, 7 and 9 were concerned with the success of The trap laid for
the appellant and as such were interested witnesses.
Qualitatively, the evidence
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of P. Ws. 1 and 7 was far inferior to the testimony of an ordinary interested witness.
"They were pimps haunting the railway station to solicit customers for P.Ws.
2 and 8. The accused was a police officer with an outstanding and unblemished
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SUPREME COURT REPORTS
[ 197 6] 2 S.C.R.
record of 19 years service and was an obstacle to
these
witnesses in their
act1v1t1es. lt could not, therefore,
be said that they had no mo1ive
to
falsely implicate him. [200~G; 2ZA-B].
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(4) The sum of Rs. 30/- which was alleged to have been taken away by
the appellant from P.W. 1 was not recovered from the appellant or fron
anywhere else in the police station.
Further, according to P.W. 7, when.
the balance of Rs. 70/- had been paid, the appeJlant did not aJlow P.W.
1 ..
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to go away.
Ordinarily su

## Text

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A.
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SAT PAL
v.
DELHI ADMINISTRATION
September 29, 1975
[P. N. BHAGWATI AND R. S. SARKARIA, JJ.]
Evidence-Trap witnesses and witnesses with bad
antecedents-Necessity
jor corroboration by independent evidence.
Evidence Act (1 of 1872) ss. 8 and
154-'Hostile'
witness-Weight of
evidence of-Silence as conduct.
Code of Criminal Procedure (Act 5 of 1898) s. 162-Statements recorded
during investigation-Use of.
The appellant, an Assistant Sub Inspector, attached to the railway station,
was convicted under s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act, 1947, and s. 161, l.P.C.
The evidence against him was that the
arrested P.W. 1, took away Rs. 30/. from him and demanded an additional
Rs. 70/- for releasing him. These facts were spoken to by P.W. 1 and P.W. 2
and P.W. 8 who were the women companions of P.W. 1. The evidence regarding
the payment of Rs. 70/- and its recovery was spoken to by P.W. 7, a friend of
P.W. 1 who brought the money, and P.W. 9, the Inspector attached to the Anti-
·Corruption Police who set the trap for catching the appellant. Two items of circumstantial evidence on which the trial court relied were, (a) that P.W. 1 was
found detained by the appellant at the Police Station; and (b) that the accused
kept silent when P.W. 9· accused him of having taken a bribe. P.Ws. 3 and 4
were the panch witnesses who were present at the time of the recovery of the
tainted currency notes from the appellant. They turned 'hostile' to the prosecution
but in cross-examination, supported the prosec.ution .regarding the silence of the
appellant when accused of having taken the bribe. P.W. 3 fqrther supported the
prosecution to ~he extent that the solution turned pink when the hands and the
pocket of the pants of the appellant were dipped in it.
The conviction of the appellant was confirmed by the High Court.
Allowing the appeal to this Court,
HELD : ( 1) This Court ordinarily does not review the evidence and disturb
concurrent findings of fact unless the findings are clearly unreasonable or vitiated
by illegality or material irregularity of procedure or are otherwise contrary to
the fundamental principles of natural justice and fair-play. In the present case,
the trial court and ,the High Cour.t have not only. used the statements of certain
witnesses in a manner which is improper or impermissible under the law, but
also erred in accepting the testimony of interested witnesses without the caution
and corroboration requisite in the peculiar circumstances of the case. [20B-D].
(2) There can be no general rule of universal application for weighing
evidence.
There is also no absolute rule that the evidence of an interested
witness cannot be accepted without corroboration.
But where the witnesses
have poor moral fibre and have to their discredit many bad antecedents, ?nd
have a motive to implicate the accused, as P.W. 1, 2, 7 and 8 have agamst
the appellant, it would be hazardous to accept their testimony in the absence of
corroboration; on crucial points fro)Il independent sources. '[22G-H].
R. P. Arora v. State of Punjab, A.I.R. 1973 S.C. 498, referred to.
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(3) P.Ws. 1, 7 and 9 were concerned with the success of The trap laid for
the appellant and as such were interested witnesses.
Qualitatively, the evidence
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of P. Ws. 1 and 7 was far inferior to the testimony of an ordinary interested witness.
"They were pimps haunting the railway station to solicit customers for P.Ws.
2 and 8. The accused was a police officer with an outstanding and unblemished
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SUPREME COURT REPORTS
[ 197 6] 2 S.C.R.
record of 19 years service and was an obstacle to
these
witnesses in their
act1v1t1es. lt could not, therefore,
be said that they had no mo1ive
to
falsely implicate him. [200~G; 2ZA-B].
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(4) The sum of Rs. 30/- which was alleged to have been taken away by
the appellant from P.W. 1 was not recovered from the appellant or fron
anywhere else in the police station.
Further, according to P.W. 7, when.
the balance of Rs. 70/- had been paid, the appeJlant did not aJlow P.W.
1 ..
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to go away.
Ordinarily such discrepancies and small improbabilities are not
of much consequence; but when the witnesses are m~nifestly disreputable. p:rsons, their testimony must pass the test of severe scrutmv and even nunor u1firmities may assume importance. [220-G].
.
(5) As regards P.W.9, though it has not been shown that he bad any hostile animus against the appellant, or that he was friendly to P.Ws. ·1 or 7, he
was the Inspector of the Anti-Corruption Staff of Police who planned !he trap,
and was therefore, interested in its success.
Although the power conferred on
him did not extend to the investigation of an offenee under s.
161, I.P.C., he
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went ahead with the execution of the trap and the investigation.
Not being
an indcpendenl witness, this evidence could not furnish the kind of corroboration requisi~ in the circumstances of the case•. [23E-HJ.
(6) As regards the circumstantial evidence. (a) the conduct of the appellant
in detaining P.W.1 for interrogation could be the innocent act of an honest
and duty-conscious Police Officer in view of the immoral activity of P.W.1
and his companions P.Ws 2 and 8; and (b) assuming that the silence cf the
appellant was admissible as conduct under s.8, Evidence Act, and not excluded
,.
as a statement under s. 162, Cr. P.C., its probative value in the circumstances·
of the case would be almost nothing. The appeJlant explained that he did not
protest and resist out of fear, that P.W.9 might make matters worse for him
even for getting bail.
It would not be unusual, even for an innocent officer,
to be frightened out of his wits on being suddenly accused of bribe-takin~ by
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a superior officer. [22B-C; 230'-E] .
(7) Even in a criminal prosecution, when a witness is cross-exmuined and
contrndicted with the leave of the court by the party calling him, his evidence
cannot, as a matter of law, be treated as wiped off the record altogether. It
is for the court to consider in each case, whether as a result of such cross-examination anJ contradic~ion, the witness stands
thoroughly
discredited,
or
can still be believed in regard to a part of his testimony. If in a given case
lhe whole of the testimony of such a witness .is impugned. and in the process, the
witness stands squarely and totally discredited, the Judge shou.ld as a matter of
pmdence, discard his evidence in toto. [300-F]
(a) Unlike the law in England, in India, the grant of permission to crossexamine his own witness by a party is not conditional on the witness being declared 'adverse' or 'hostile'. In fact, in the order granting .such permission it is preferable to avoid such expressions as "declared 'hostile," "declared unfavourable"
etc.
Whether it be the grant of permission under s. 142,
Evidence
Act,
ro
put leading
questions
or
lea_ve
llndcr
s. 154
to ask
questions which
might be put in cross-examination by the adverse party, the Indian Evidence Act
leaves the matter entirely to the discretion of the Court. The discretion is unqualified and untrammelled and is apart from any question of hostility. It is to
be liberally excrci,J;d whenever the court from the wimess's demeanour temper,
attitude, bearing, or the tenor and tendency of his answers, or from a perusal of
his previous inconsistent statement or otherwise, thinks that the granh of such
permission is expedient to extract the truth and to do jusHce. The grant of such
permission does ndt amount to1 an adjudication by the court as to the veracity' of
th_e witness. The fallacy underlying the view tnat where a party calling the witness reques'8 the court to declare him a "hostile" witness and with the leave of the
court cross-examines the witness, the latter's evidence should be excluded
altogether in criminal cases, stems from the assumption that the only purpose of
cross-examination of a witness is to discredit him. There is another equally important object of cross-examination, namely, to elicit admissions of facts which
would help build the case of the cross-examiner. When a party with the leave of
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SAT PAL V. DELHI ADMINISTRATION
13
the court, c,onfronts bis witness with bis
previous inconsistent statement be
also does so in the hope that the witness might revert to what be bad stated
previously, because, if the departure from the prior statement is not deliberate
but due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement. The rule prohibiting a party from
putting questions in the manner of cross-examination or in a leading form to
his own witness is relaxed not because the witness has already forfeited all
right to credit but because from his ~ntipathetic attitude or otherwise, the court
may feel that for doing justice, his evidence will be more fully given, the truth
more effectively extricated and his credit more adequately tested by questions
pub in a more pointed, penetrating and searching way. [26 E-H; 27 F-28 BJ.
(b) Section 154 speaks of permitting a party to put to his own witness
questions which might be put in cross-examination. It is not necessarily tantamount to cross-examining the witness.
Cross-examination,
strictly
speaking,
can only be by the adverse party.
Therefore, neither the party calling hi"''·
nor ~he adverse party is, in law, precluded from relying on any
part of the
statement of such a witness. [28 C-EJ.
(c) The contention of the appellant. that this Court in Jagir Singh v. State,
A.LR. 1975 S.C. 1400, held that when a prosecution witness, being hostile,
was cross-examined by the public prosecutor, his entire evidence is to be discarded as a matter of law, is misconceived.
In that case the Court did
not
reject the evidence as a r_ule of law, but only after scrutinising it carefully, came
to ~he conclusion that the evidence should be rejected en bloc. [30 F-H].
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(d) Therefore, a part of the evidence of P.Ws 3 and 4 could be used
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availed of by the prosecution in support of its case.
But. they contradicted
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substantially their previou~ statements, and a~ a result of the cross-examination,
their credit, if not wholly. was substantially, shaken.
Therefore, as a matter
of prudence, on the facts of the present case, it. would be hazardous to allow
the prosecution to use stray sentences from their evidence as corroboration to
support the evidence of the trap· witnesses. [31 A-BJ.•
( 8) The High Court was also• not competent to use the· statements of these
witnesses recorded by the police during investigation for seeking assurance of the
prosecution story. Such use of the police statement is not permissible under
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the pnniso. to. s. 162, Cr. P. C.
They can be used dnly for the purpose of
contradicting a prosecution witness in the manner indicated in s. 145. Evi'dence
Act, and for no other purpose. [31 C-D].
(9) Further, there wa~ the evidence· of defence witnesses which was not
succesfully impeached by the prosecution in cross-examination. The High Court
had not di'scussed their evidence at all. If that evidence· were to be believed,
the possibility of the tainted notes having been implanted by P.W. 7 from
where they were recovered, could not be ruled out. [31 E--G].
F
Boihmtha Nath v. Prasannamoyi, AIR 1922, P.C. 409; Prophulla Kumar
Sarkar V;1 Emperor. ILR 58 Cal. 1404; Shobraj v. R. ILR 9 Patna 474; E. v'~
Jelumgir Gama 1927 Born. 501; Ammathrzyar v. Official Assignee 56 Mad. 7;
Nebti v. R. 19 Pat. 369; Shahdev v. Bipti AIR 1969 Pat. 41~; ILR [1954] 4
Raj. 822(DB); Shyam Kumar v. E .. ( 1941) Oudh 130; AIR 1955 NUC (Punj)
5715; AIR. 1964 M.P. 30. In re Ku/u Singh; Rana v. State AIR 1965 Orissa 31;
AIR 1960 Mys. 248; (1951) Ker. LT. 471; AIR 1953 J & K 41 (DB); Narayan
Nathu Naik v. Maharashtra State. [1971] I SCR 133 referred to.
Observations contra in Luc/1iram Motilal v. Radhe Charan, (1921) 24 C.L.J.
107; E. V. Satyrndra Kumar Dutt, AIR 1923 Cal, 463; Surendra v. Ranee Dassi,
47 Cal. 1043; Khijiruddin v. E. AIR 1926 Cal. 139 and Panchanan v. R. 57 Cal.
1266, over-ruled.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 137
of 1971.
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Appeal by Special Leave from the Judgment and Order dated the
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9th March 1971 of the Delhi High Court at New Delhi in Criminal
Appeal No. 151 of 1970.
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[1976] 2 S.C.R.
Frank Anthony, O. P. Soni and E. C. Agarwala for the Appellants.
V. C. lv!ahajan and R. N. Sachthey for Respondent.
The Judgment of the Court was delivered by
SARKARIA, J.
This appeal by special leave is directed against a
judgment of the High Court of Delhi upholding the conviction and
sentence of the appellant under s. 5 (2) read with s. 5 (l)(d) of the
Prevention of Corruption Act and s. 161 Penal Code.
The facts are
these :
On 16-1-1970, Ramesh @ Kaka (PW 1), Mst. Maya (PW 2) and
Jayna (PW 8) went to the Railway Station to receive one Mst. Mumtaz, who was expected from Bombay by 1.45 p.m.
train.
Finding
them loitering there, a constable of the Railway police took them to
the appellant at the Railway Police Post where he was posted as an
Assistant Sub-Inspector.
The appellant gave a beating to Ramesh
and demanded an explanation as to why they had come to the Railway Station.
Ramesh said that they had come to receive one Mst.
Mumtaz, who was expected from Bombay by train at about 1.45 P.M.
The appellant questioned if Mumtaz was being brought to Delhi for
prostitution. Ramesh and his companions refuted the insinuation and
informed the appellant that Mumtaz was a dancing girl and not a
prostitute.
The appellant then demanded a bribe of Rs. 100 from
Ramesh and party, warning that in the event of non-payment, they
would be implicated in some case. Ramesh paid Rs. 30 there and then
to the appellant.
The latter insisted that they would not be released
unless they paid the balance of Rs. 70/-
On the suggestion of the
women, the appellant detained Ramesh but let off the women with the
direction to send the balance of Rs. 70/-.
Mst.
Maya and Mst.
Jayna returned to their residence on G.B. Road and informed Dal
Chand (PW 7) all about the incident.
Mst.
Maya then handed over Rs. 70/- to Dal Chand for securing the release of Ramesh. Dal
Chand instead, went to the office of the Anti-Corruption Police where
Inspector Paras Nath recorded his statement,
Ex PW 3/A.
The
Inspector organised a raiding party.
He summoned Surinder Nath
(PW 3) and Sohan Pal Singh (PW 4), two clerks from the Sal.es-tax
Office.
The recorded statement of Dal Chand was then read out to
Dal Chand,, and was admitted to be correct by him in the presence and
hearing of the Panch witnesses.
Dal Chand then produced
seven
currency notes of the denomination of Rs. 10 /- each.
The Inspector treated those notes with phenol-phythelene powder. He demonstrated to the witnesses how the fingers of a person touching a note
treated with such powder would tum violet when dipped in a solution
of sodium carbonate.
The treated notes were then returned to Dal
Chand with the direction that he should band over the same to the
appellant on demand.
The -Pancb witnesses were instructed to keep
close to Dal Chand to witness the passing of the tainted notes. The
raiding party headed by Inspector Paras Nath. including Dal Chand
and the panch witnesses then reached
New Delhi Railway Station
at about 5 .25 p.m. Dal Chand and Sohan Pal Singh were directed ta
go ahead whlle the re.~t of the party took uo positions nearby. Dal
Chand and bis companions found the appellant talking to some per-
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SAT PAL v. DELHI ADMINISTRATION (Sarkaria, J.)
15
:son just outside the Police Post.
After a couple of minutes when the
appellant was free from that talk, and was alone, Dal Chand
approached him and said that he was the brother of Ramesh (PW 1)
and had been sent by the women to pay him Rs. 70/- for getting
Ramesh released.
The appellant first demanded Rs. 100/- but later
1·eceived Rs. 70/- from Dal Chand and put the currency notes in the
left side pocket of his pants which he was then wearing.
The appellant
then told Dal Chand to go away, and assured the latter that Ramesh
would be released.
The appellant then went into his room in the Potice
Post.
Inspector Paras Nath and party followed the appellant into the
room.
Inside they found him sitting on a cot and Ramesh PW squatting on the fioon
The Inspector dtsclosed his identity and accused the
appellant of having received a bribe.
The appellant kept mum. The
Inspector then recovered the currency notes Ex. Pl to P7, from the
pocket of the pants which the appellant was
then wearing.
He
compared the numbers of the notes with those noted in the
memorandum PW 3 /P. They tallied. Pointing towards Ramesh, the.
Inspector asked the .appellant as to who he was.
The appellant replica
that he (Ramesh) had been found loitering outside in suspicious circumstances and was brought for interrogation. The left hand fingers of the
appellant were then dipped in a solution of sodium carbonate which
turned pink.
After preparing the seizure memo and the ra!id report
(PW 9/A), the Inspector sent the same to the police Station for registra ..
tion of the formal First Information Report.
After completing the investigation and securing the necessary sanction for prosecution of the appellant, he laid a charge-sheet against
him in the court of the Special Judge, Delhi.
Examined under s. 342, Cr.P.C., the appellant denied the prosecution case, and gave this version of the occurrence .
. "I left the Police Post at 4.15 p.m. in uniform for patrol
duty ~t the New Delhi Railway Station platforms because
there is a heavy rush of 1;rains at that time.
I was: sent for
by the Incharge Police Post through Dev Raj Constable. I
came to the Police Post through an entrance towards the platform. At that time Incharge, Police Post was busy in a conversation on telephone. I was carrying a baton in my hand.
I entered my room and placed the baton on the table. My
room is hardly 8'X4t'. Just at that time Inspector Paras Nath
came there and secured me near the door of my room.
On
a few occasions I did not oblige Inspector Paras Nath for
getting seats reserved at the Railway Station for his friends and
relatives.
He had strained relations with me.
I knew Dal
Chand and Ramesh,. They are pimps.
They often used to
come to the Railway Station to solicit customers who were
v.isitors to Delhi.
On a number of occasions I saw them accompanied by prostitutes of G.B. Road I reprimanded
them several times not to frequent the Railway platforms in
that manner.
They were out to harm me.
The recovered
pants was hanging on a peg in my room and it was removed
from there by the Inspector. I was wearing my uniform. No
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SUPREME COURT REPORTS
(1976] 2 S.C.R~
proceeding~ of the type mentioned above took place in my
room. I got confused on seeing the Anti-Corruption Staff. I
was afraid that they might create trouble for my bail and therefore I did not resist or protest.
I have served in the Police
Department for the last 19 years and there is not a single ad~
verse entry,, major or minor in my service book. I am innocent."
In defence, the appellant examined five witnesses~all members of
the Police force.
Head Constable J abar Singh (DW 1) testified on the basis of the servJce record, that there was not a ,single adverse entry in the Character
Roll of the appellant, and that no less than 60 commendation certificates, some of them accompanied by cash rewards, were awarded to.
him since his joining the Police force on 7-6-1951. Constable Sardar
Singh DW2, .12_roved with reference to the official records brought by
him that Ramesh (PW 1) was convicted and fined on 14-1-1966 by
·a Delhi Magistrate under s. 12 of the Gambling Act. Constable Dev
Raj, DW 3 of the Railway Police Post was examined to show that
at the time of occurrence, the appellant was in police uniform and was
not wearing the civilian clothes, including the pants from which the
tainted currency notes are alleged to have been recovered. He testified
that on 16-1-1970 at about 4.45-p.m., the Incharge Police Post directed
the witness to convey a message to the appellant that he was wanted
on the telephone to receive a call from his sister from Kirti Nagar.
Accordingly,_ the witness went and conveyed the message to the appellant
who was then in uniform, patrolling the Railway plantform. Constable
Muharrar Sujan Singh, DW 4, produced the Daily Diary of the Police
Post, containing entry No. 40, showing that on 16-1-1970, the appellant
had departed from the Police Post for patrol duty at 4.15 P.M. He
stated that there was a Standing Order according to which all Police
Officers going on patrol were peremptorily required to go in uniform.
Om Prakash Sahni, DW 5, is an important witness examined by
the defence.
He is a Sub-Inspector who at the relevant time, was Jncharge of the Police Post of New Delhi Railway Station.
His room
in the Police Post is on one side of the verandah and that of the accused on the other side at a distance of hardly six feet.
The dimensions
of the room of the accused are Tx6' and it has only one door which
opens into the verandah.
DW 5 completely discounted the prosecution version.
According to him, on 16-1-1970, he was throughout
present in his room from l.30 P.M. to 5.55 P.M. During this period
he did not see any stranger, or suspect in the room of the accused.
The witness swore that between 5.30 P.M. and 6 P.M., the accused
was on patrol duty. He further stated that at about 5.45 P.M. a telephone call was received from the sister of the accused from
Kirti
Nagar, whereupon he sent Constable Dev Raj to inform the accused
about it.
Jn response to the message sent by the witness, Sat Pal
accused in Police uniform came from the side of the Railway platform
to the Post.
At that time,, the witness was attending to another telephone message, consequently, the accused went into his room.
The
witness then left for patrol duty, after telling the accused about the
telephone message.
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SAT PAL v. DELHI ADMINISTRATION (Sarkaria, J.)
17
The prosecution evidence which is the mainstay of the conviction
of the appellant may be catalogued under these captions :
A. Direct Evidence
(i) Demand of the bribe : Evidence in regard to this fact was
given by Ramesh, PW 1, Mst. Maya, PW 2,. and Mst.
Jayna PW 8.
(ii) Passing of tainted currency notes, Pl to P7 to the accused.
Evidence with regard to this fact was given by Dal Chand
(PW 7) and Inspector Paras Nath, PW 9.
(iii) Recovery of the tainted notes
from the person of the
accused. Dal Chand PW 7 and Inspector Paras Nath PW
B9 are the only witnesses who have deposed to this fact.
C ·
For proof of this fact, support has also been sought from
the evidence of the hostile witnesses, PW 3 & 4.
B. Circumstantial Evi<;lence
(i) The circumstance that Ramesh
was found
detained by
the appellant.
(ii) On J.2eing accused by the Inspector, that he had Pbtained
a bride, the app·ellant kept mum and did not protest or
refute the accusation.
Jt may be noted at the outset, that Surinder Nath, PW 3 and
Sohan Pal Singh PW 4, who were supposed to be independent Panch
witnesses of the trap, turned hostile to the prosecution and were thoroughly cross-examined by the Public Prosecutor with the leave of the
court to impeach their credit.
In cross-examination, Surinder Nath,
however, said that when the Inspector accused the appellant of receiving a bribe, the latter kept mum. He further supported the prosecution to the extent, that when the fingers and the pant pocket of the
accused were dipped in a solution of sodium carbonate, they turned
pink.
Excepting with regard to the reticence of the accused on the
query made by. the Inspector, Sohan Pal Singh, who was supPosed to
have kept close company with Dal Chand, did not support the prosecution at all.
The learned trial Judge found that "the complainant and party
ai;e "men of shady and questionable character" but according to him,
that was no ground to discard their testimony.
Referring to certain
observations of Dua J. in Ram Sarup Singh v. The State,(<!) he held
that persons with such shady characteristics fall easy victims to
the
illegal explofts of unscrupulous and
dishonest officers.
The
Judge
was further of the opinion that the testimony of the Panch witness
Surindernath (PW3) also cannot be discarded straightaway on accoilllt of his having been cross-examined by the prosecution". He rejected
the defence version propounded by DWs 3 and 5 and concluded that
the evidence given b1y the PWs including Dal Chand, and Inspector
Paras Nath, coupled with the compelling circumstantial evidence was
(1) (1967) Cr. L. J. 744.
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suflicient to establish the passing of the tainted notes to the accused
and the subsequent recovery of the same from him.
Calling in aid
the presumption under sec. 4 of the Prevention of Corruption Act, he
convicted the appellant under sec. 5(2) read with sec. 5(1)(d) of
the Act and under s. 161, Penal Code.
In appeal, the High Court affirmed the findings of the trial Court.
In seeking support for the prosecution case from the evidence of the
hostile witnesses, it went far ahead of the trial comt. The High Court
sought assurance from the statements of PW 3 and 4 thus :
"After a detailed reference to the evidence adduced in
this case it becomes clear that P.Ws 3 and 4 in their statements under s. 161(3) duly proved in terms of the proviso
to section 162 of the
Code of Criminal Procedure,
did
support the version which was given at the trial by PWs. l,
7 and 9. If it were open to an accused person to utilise
the aforementioned proviso to urge that the contradictions
point in a particular direction then it is equally open to the
prosecution to urge that the contradictions establish on the
record that the statement made earlier to which the statement made in court was contrary, was the one which was
the correct statement."
·
Perhaps realising that in making use of the police statement it was
going too far, the High Court then switched over to the alternative
argument:
"It is not only on the basis of the
statements falling
within the purview of the proviso to section 162 that I am
coming to the conclusion that the prosecution has succeeded in proving its case.
Even otherwise I am satisfied thit
Ramesh was kept in custody by the appcilant whose hands,
when dipped in the sodium carbonate solution turned pink.
The same was the result when the pocket of Pant Exhibit
P. 11 was dipped in the sodium carbonate §olution."
Conceding that the testimony of the trap witnesses was interested
testimony, the High Court held that it was not correct to say that
their evidence cannot, as a matter of law, be accepted without corroboration.
On this point, it referred to this Court's decision in Dalpat
Singh v. State of Rajasihan.(1)
Even so, according to the High Court
the interested testimony of PWs 7 and 9 "received full corroboration
from PW l". The High Court summarily brushed aside the defence
version without adverting to the defence evidence at all.
Mr. Frank Anthony, the learned Counsel for the appellant contended (a) . that the courts below erred in law in using the reticence
of the appellant as evidence against him.
This silence 11mounted to
a statement made to the police in the course of investigation, and as
such it was inadmissible, being hit by s. 162, Cr. P.C. (Reference
(1) A. I. R. 1969 SC. 17.
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has been made to N arasimham v. State (11) • In any case,
this
reticent conduct of the appellant was not indicative of his guilt; ( b)
that the courts below have erred in using a part of the testimony of
the hostile witnesses in support of the prosecution case. They had
been fully cross-examined by the prosecution to impeach their credit,
and indeed their evidence stood thoroughly discredited (For this proposition reliance has been placed on a recent decision of this Court
in Jagir Singh v. The State (2); ·(c) that the High Court has erred in
using the police statements of P.Ws. 3 and 4 for seeking assurance
and corroboration of the prosecution story.
Such user is not permissible under the proviso to Sec. 162, Ct. P.C. (d) (i) that it was
clear from the record that P.Ws. 1, 2, 7 and 8 are persons of low
moral character and were haunting the Railway Station in connection
with their immoral trade, that the appellant was a stumbling block in
the way of their immoral pursuits, and consequently these PWs had
a motive to falsely implicate the appellant. (ii) PW 9, who was an
Inspector of Anti-Corruption Police was
also a highly
interested
witness.
His overzeal can be gauged from the fact that he investigated this offence under s. 161, Penal Code, although he was not
duly empowered to do so.
(iii) The evidence of these
interested
witnesses is replete with material discrepancies, and, as a rule of prudence, could not, in the absence of corroboration from independent
sources, be accepted particularly when it stood sharply contradicted
by the qualitatively better testimony of DWs 3 and 5.
(Reliance
has been placed on R. P. Arora v. State of Punjab) (3 ),, (e) That
the trial Court erred in law in invoking the presumption under s. 4
of the ·Prevention of Corruption Act for convicting the appellant for
an offence under s. 4(2) read with s. 4(1) (d) of the Act.
In mpport of this argument, reference has been made to Sita Ram v. The
State of Rajas than. ( 4).
As against tlle above, Mr. V. Mahajan,, the learned Counsel for
the. Respondent, submits that the evidence of the interested witnesse~
has been accepted by the courts below, and consequently this Court,
should not in keeping with its practice, disturb these concurrent findings of fact.
It is maintainted that there is no rule of law, that the
evidence of an interested witness cannot be acted upon without corro,boration, that, in any c.ase, the evidence of PWs 1, 7 and 9 was
sufficiently corroborated by the circumstantial evidence consisting of
the conduct of the accused in keeping mum to the accusation made
by the Inspector and by the factum of Ramesh's detention by the appellant.
The said conduct of the appellant, proceeds the argument,
was relevant under sec. 8, Evidence Act and was a delinite pointer
towards his guilt.
Counsel has not tried to support the use of the
police statements of PWs 3 and 4 made by the High Court;
His
point is that even without such support, the evidence on record was
sufficient to bring home the charges to the appellant.
Counsel has
further invited our attention to the copy of the judgment of the Delhi
High Court in Criminal Revision No. 505 of 1968 (Raj Kumar v.
Stare) delivered on tlle 7th. April 1970 (produced by ilie appellant's
(1) A. I. R. 1969 A. P. 271.
(2) A. I. R. 1975 S. C. 1400.
(3) A. I. R. 1973 S. C. 498.
(4) A. I. R. 1975 S. C. 13z·4
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side in this Court) wherein it is recited that all l nspectors of Police
in th.e Anti-Corruption Branch of the Delhi A<Jministration have beef.I
authorised by an order dated March 21, 1968 passed under
sec.
SA( 1) of the Prevention of Corruption Act, by the Adminisfrator of
the Union Territory of
Delhi to investigate
offences under
sec.
5 ( 1) ( d) of this Act.
According to Counsel the mere fact that the
authority given to Inspector Paras Nath did not extend to investigation of offences under sec. 161, Penal Code, would not vitiate either
the validity of the trial or the probative value of his evidence.
It is true that ordinarily, as ·a matter of practice, this Court docs
not review the evidence and disturb concurrent findings of fact unless
those findings are clearly unreasonable or are vitiated by an illegality
or material irregularity of procedure or or otherwise contrary to the
fundamental principles of natural justice and fair-play.
The instant
case is one which falls within the exception to this rule.
As shall be
presently discuss~d, the courts below have adopted a basically wrong
approach.
They have
not only used the statement of certain witnesses in a manner which is manifestly improper or impermissible
under the law, but have also erred in accepting the tcstir.nony of interested witnesses without due caution
and corroboration, requi;itc
in the peculiar circumstances of the case. It is therefore, necessary to
have another look at the evidence and the salient features of the case.
We will begin with the evidence of the trap witnesses.
They arc
Ramesh PW 1, Dal Chand PW 7 and Inspector Parasnath, PW 9.
It cannot be gainsaid that all the three were concerned with the success of the trap and as such, were interested witnesses.
What the
courts below appear to have failed to note is that qualitatively, the
evidence of these witnesses particularly PWs 1 and 7 was far infcrrior to
the testimony of an ordinary interested witness.
While the trial cour.t
was unduly indulgent and modest in allowing these witnesses to pass
under the euphemistic title of "questionable and shady" characters,
the High Court overlooked their antecedents altogetl1er.
Evasiv~ denials of Ramesh and company notwithstanding, sufficient material has been brought on the record from which it is cleai;ly
discernible that PWs Ramesh and Dal Chand are pimps and they
were haunting at the Railway Station to solicit customers for Mst. Maya
and Mst. Jayna.
The facts which have been elicited from Ramesh and company
in cross-examination arc these : There is an accommodation, com~
prising of one hall, and side-rooms on G.B. Road which is known as
the Katha (brothel) of Mst. Maya, Mst. Jayna, Mst. JV!ava and one
Mst. Lachmi have been living together in these premises for th~ previous 8 or 9 years.
The rent of these premises for all th:: L'Ccupants
is being paid by Mst. Maya. Mst. Lachmi is the mis•ress of Ramesh
and the latter lives on her professional income. Mst. Maya is the keep
of Dal Chand w4o maintains her servant, Mst. Jayna, also. Ramesh
also claims to be a servant of Mst. Ma1va.
He also Jives in the Koth~
(vide Dal Chand PW 7).
Dal Chand claimed that h~ was
livi1g
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21
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.-£eparately at Pahar Ganj.
But he admitted that he has been fre-
.quently visiting the Katha of Maya and on the day of occurrence
also he was there when, according to the witness, Mst. Maya came
.and informed him about the demand of the bribe by the appellant.
Dal Chand stated that Ramesh was only
a
brother by
courtesy.
He admitted that Ramesh, Maya and Jayna were arresced by
the
'r
+-Po!ice under the Suppression of Immoral Traffic ACt, and the charge
.against him and Ramesh was that they were pimps and their women
companions were carrying on the profession of prostitution.
He
further admitted that in 196~ Mst. Maya was convicted under the
said Act by a Delhi Magistrate. Ramesh and Maya both were being
jointly prosecuted (on the date of their examination) for an offence
under the said Act.
It is further admitted (vi de Ramesh) that one
./ Mst. Mumtaz, a dancing girl of Bombay, is the friend and she fre-
.quently comes and stays in the kotha of Mst. Maya.
Ramesh was
.convict·~d for an offence under the Gambling Act also.
Viewed against this background, the suggestion made by the defence in cross-examination to these witnesses, that they were loitering
at the Railway Station to procure custorners for their immoral business could not be said to be devoid of substance.
The purpose of
._ their visit to the Railway Station at that busy hour, according to
·them, was to see Mst. Mumtaz who
was then
expected to arrive
from Bombay by train.
This Mumtaz was not produced by the prosecution, though she was repeatedly
summoned.
In the
circmnsl
tances, the defence v~rsion, that these persons were roaming there
to hawk their "wares" does not fall beyond the orbit of reasonable
probabili~y. The above circumstances further lend assurance to the
appellant's plea that he had on several occasions, previously, reprimanded these witnesses for visiting the Railway Station for immoral
trade.
Even, according to the prosecution, the appellant had round-
.ed up Ramesh and party on the accusation that . they were soliciting
. customers for their immoral business.
Dal Chand stated that
on
being questioned by Inspector Parasnath, the
appellant
explained
that since Ramesh was found loitering at the Railway Station in suspicious . circumstances, .J:ie had been brought for interrogation.
This
·explanation receives c_onfirmation from Ramesh who stated that the .
accused had questioned him about the purpose of their visit to the
-. Railway Station, and when the witness told him that they had come
to receive Mumtaz, the accused, not being satisfied, asked whether
she was also being brought for prostitution. The appellant . had also
;. threatened to prosecute and put them behind the bars.
The courts below have believed the word of these pimps and women of easy virtue that the appellant did all this to extort a bribe.
The trial court with reference to certain observations of Dua J. in
Ram Sarup"s case, (ibid) treated the "shady and questionable characteristics" of these witness as a point in favour of the prosecution.
It
argued that persons with such antecedents can be easily exploited by
corrupt pGlice officers for extorting bribes.
Thus. in a way, what was
a stigma, was considered a badge of honour.
We are, with resp~ct,
1lnable to appreciate this
reasoning.
The
observations
in
Ram
.Swarup's case, were not intended to lay down a rule of universal
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application.
Indeed f,or weighing evidence there can be no specific
canon.
No generalisation is possible in such matters.
Each case
has its own features and each witness his own
peculiarities.
Here
was a police officer with an unblemished record, rather an outstanding record of 19 years' service.
Such an Officer would· be least disposed to countenance pimping within his territorial jurisdiction.
He
must therefore have been an eye-sore to them. It could not there- ..
fore be said that these witnesses had no motive whatever to falsely
implicate the appellant.
·
Thus the conduct of the appellant in restraining Ramesh for interrogation could be the innocent act of an honest and duty-consciousPdlice Officer.
Th-en the evidence of these witnesses was replete with discrepancies, contradictions and improbable versions.
PW 1 stated that they
were all taken by a Constable to a room and there the appellant gave
him a beating.
This was in sharp conflict with the version c,f Mst.
Jayna, that it was PW 1 alone who was first rounded up by the Constable.
Again, PW 1 would have it believed that he had Rs.: 30/-
in all with him which he gave to the appellant.
This
was sharply
contradicted by Mst. Jayna, according to whom, it was Mst. Maya
-and not PW 1-who had given this money to the appellant. . fa
the context, it may be noted that apart
from Rs. 70/- in tainted
no,tes, the fur!her sum of Rs. 30/- was not recovered from the appellant or from anywhere in the Police Post.
The story of the advance
payment of Rs. 30/- therefore does not inspire confidence.
Furtherthe conduct of the appellant in not releasing Ramesh forthwith even
after the alleged receipt of Rs.