Misuse of sec.498-A IPC Dowry Laws in India Supreme Court Judgments.

. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-

dowry-system-in-india

  1. i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

  1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The 18 training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

  1. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
  1. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  1. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services 20 Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018. 21. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action. 22. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions

1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1265 OF 2017

[Arising out of Special Leave Petition (Crl.) No.2013 of 2017]

Rajesh Sharma & ors. …Appellants Versus State of U.P. & Anr. …Respondents

J U D G M E N T

Adarsh Kumar Goel, J

Leave granted.

  1. The question which has arisen in this appeal is whether any directions are called for to prevent the misuse of Section 498A, as acknowledged in certain studies and decisions. The Court requested Shri A.S. Nadkarni, learned ASG and Shri V.V. Giri, learned senior counsel to assist the Court as amicus. We place on record our gratitude for the assistance rendered by learned ASG Shri Nadkarni and learned senior counsel Shri Giri who in turn was 2 ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker.
  1. Proceedings have arisen from complaint dated 2nd December, 2013 filed by respondent No.2 wife of appellant No.1. Appellants 2 to 5 are the parents and siblings of appellant No.1. The complainant alleged that she was married to appellant No.1 on 28th November, 2012. Her father gave dowry as per his capacity but the appellants were not happy with the extent of the dowry. They started abusing the complainant. They made a demand of dowry of Rs.3,00,000/- and a car which the family could not arrange. On 10th November, 2013, appellant No.1 dropped the complainant at her matrimonial home. She was pregnant and suffered pain in the process and her pregnancy was terminated. On the said version, and further version that her stridhan was retained, appellant No.1 was summoned under Section 498A and Section 323 IPC. Appellants 2 to 5 were not summoned. Order dated 14th July, 2014 read as follows:

“After perusal of the file and the document brought on record. It is clear that the husband Shri Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand. It appears that he has tortured the complainant. 3

So far as torture and retaining of the stri dhan and demanding 50,000 and a gold chain and in not meeting the demand the torture is attributable against Shri Rajesh Sharma. Rajesh Sharma appears to be main accused. In the circumstances, rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma and Priyanka Sharma have not committed any crime and they have not participated in commission of the crime. Whereas, it appears that Rajesh Sharma has committed an offence under Section 498A, 323 IPC and read with section 3 / 4 DP act appears to have prima facie made out. Therefore, a summon be issued against him.”

  1. Against the above order, respondent No.2 preferred a revision petition and submitted that appellants 2 to 5 should also have been summoned. The said petition was accepted by the Additional Sessions Judge, Jaunpur vide order dated 3rd July, 2015. The trial court was directed to take a fresh decision in the matter. Thereafter, the trial court vide order dated 18th August, 2015 summoned appellants 2 to 5 also. The appellants approached the High Court under Section 482 CrPC against the order of summoning. Though the matter was referred to the mediation centre, the mediation failed. Thereafter, the High Court found no ground to interfere with the order of summoning and dismissed the petition. Hence this appeal. 4
  1. Main contention raised in support of this appeal is that there is need to check the tendency to rope in all family members to settle a matrimonial dispute. Omnibus allegations against all relatives of the husband cannot be taken at face value when in normal course it may only be the husband or at best his parents who may be accused of demanding dowry or causing cruelty. To check abuse of over implication, clear supporting material is needed to proceed against other relatives of a husband. It is stated that respondent No.2 herself left the matrimonial home. Appellant No.2, father of appellant No.1, is a retired government employee. Appellant No.3 is a house wife. Appellant No.4 is unmarried brother and appellant No.5 is unmarried sister who is a government employee. Appellants 2 to 5 had no interest in making any demand of dowry.
  1. Learned counsel for respondent No.2 supported the impugned order and the averments in the complaint.
  1. Learned ASG submitted that Section 498A was enacted to check unconscionable demands by greedy husbands and their 5 families which at times result in cruelty to women and also suicides. He, however, accepted that there is a growing tendency to abuse the said provision to rope in all the relatives including parents of advanced age, minor children, siblings, grand-parents and uncles on the strength of vague and exaggerated allegations without there being any verifiable evidence of physical or mental harm or injury. At times, this results in harassment and even arrest of innocent family members, including women and senior citizens. This may hamper any possible reconciliation and reunion of a couple. Reference has been made to the statistics from the Crime Records Bureau (CRB) as follows: “

 That according to Reports of National Crime Record Bureau in 2005, for a total 58,319 cases reported under Section 498A IPC, a total of 1,27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law.

While in 2009 for a total 89,546 cases reported, a total of 1,74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law.

  1. That according to Report of Crime in India, 2012 Statistics, National Crime Records Bureau, Ministry of Home Affairs showed that for the year of 2012, a total of 197,762 people all across India were arrested under Section 498A, Indian Penal Code. The Report further shows that approximately a quarter of those arrested were women that is 47,951 of the total were perhaps mother or sisters of the husband. However 6 most surprisingly the rate of charge-sheet filing for the year 2012, under Section 498A IPC was at an exponential height of 93.6% while the conviction rate was at a staggering low at 14.4% only. The Report stated that as many as 3,72,706 cases were pending trial of which 3,17,000 were projected to be acquitted.
  2. That according to Report of Crime in India, 2013, the National Crime Records Bureau further pointed out that of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.”
  1. Referring to Sushil Kumar Sharma versus Union of India1 , Preeti Gupta versus State of Jharkhand2 , Ramgopal versus State of Madhya Pradesh3 , Savitri Devi versus Ramesh Chand4 , it was submitted that misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse. The Madras High Court in M.P. No.1 of 2008 in Cr. O.P. No.1089 of 2008 dated 4th August, 2008 directed issuance of following guidelines: “It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition 1 (2005) 6 SCC 281 2 (2010) 7 SCC 667 3 (2010) 13 SCC 540 4 ILR (2003) I Delhi 484 7 Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.”
  1. Delhi High Court vide order dated 4th August, 2008 in Chander Bhan versus State5 in Bail Application No.1627/2008 directed issuance of following guidelines : “2. Police Authorities: (a) Pursuant to directions given by the Apex Court, the Commissioner of Police, Delhi vide Standing Order No.330/2007 had already issued guidelines for arrest in the dowry cases registered under Sections 498-A/406 IPC and the said guidelines should be followed by the Delhi Police strictly and scrupulously. (i) No case under Section 498-A/406 IPC should be registered without the prior approval of DCP/Addl.DCP. (ii) Arrest of main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP. 5 (2008) 151 DLT 691 8 (iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law etc. should only be made after prior approval of DCP on file. (b) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance. (c) FIR in such cases should not be registered in a routine manner. (d) The endavour of the Police should be to scrutinize complaints very carefully and then register FIR. (e) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty as well as breach of trust. (f) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, then necessary steps in the first instance be taken to ensure return of stridhan and dowry articles etc. by the accused party to the complainant.”
  1. In Arnesh Kumar versus State of Bihar6 , this Court directed as follows : “11.1All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC; 11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 6 (2014) 8 SCC 273 9 11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention; 11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing; 11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; 11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. 11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”
  1. Learned ASG suggested that there must be some preliminary inquiry on the lines of observations in Lalita Kumari versus Government of Uttar Pradesh7 . Arrest of a relative other than husband could only be after permission from the concerned Magistrate. There should be no arrest of relatives aged above 70 years. Power of the police to straight away arrest must be prohibited. While granting permission, the court must ascertain that there is prima facie material of the accused having done some overt and covert act. The offence should be made compoundable and bailable. The role of each accused must be specified in the complaint and the complaint must be accompanied by a signed affidavit. The copy of the preliminary enquiry report should be furnished to the accused.
  2. Shri V. Giri, learned senior counsel assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in an offence under Section 498A should be only after recording reasons and express approval from the Superintendent of Police. In respect of relatives who are ordinarily residing outside India, the matter should proceed only if 7 (2014) 2 SCC 1 11 the IO is convinced that arrest is necessary for fair investigation. In such cases impounding of passport or issuance of red corner notice should be avoided. Procedure under Section 14 of the Protection of Women from Domestic Violence Act, 2005, of counseling should be made mandatory before registration of a case under Section 498A.
  1. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243rd Law Commission Report (August, 2012), 140th Report of the Rajya Sabha Committee on Petition (September, 2011) as well as several decisions to which our attention has been invited.
  1. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. 12 The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted9 . The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the 8 Explanation to Section 498A 9 Preeti Gupta (supra) 13 provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable.
  2. Following areas appear to require remedial steps :- i) Uncalled for implication of husband and his relatives and arrest. ii) Continuation of proceedings in spite of settlement between the parties since the offence is non-compoundable and uncalled for hardship to parties on that account.
  1. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable.10 Just and fair procedure being part of fundamental right to life,11 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a 10 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC 603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para 47, Union of India vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs. Sudhir Batham (2012) 1 SCC 333 11 State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4 SCC 453- para-21 14 non-compoundable case of private nature, if continuing the proceedings is found to be oppressive.12 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.
  1. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
  2. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned 12 Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC 364- para -14 15 trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.
  1. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-
  2. i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

  1. ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The 18 training may be completed within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

  1. iv) If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
  2. v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
  3. vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

  1. After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services 20 Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018. 21. Copies of this order be sent to National Legal Services Authority, Director General of Police of all the States and the Registrars of all the High Courts for further appropriate action. 22. It will be open to the parties in the present case to approach the concerned trial or other court for further orders in the light of the above directions

. …………………………………….J. (Adarsh Kumar Goel)

…………………………………….J. (Uday Umesh Lalit)

New Delhi;

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Section 3 of the Indian Evidence Act, 1872 makes every electronic record produced in evidence for the inspection to the court, a documentary evidence. When a document is an ‘electronic record’ within the definition of Section 2(1)(t) of the Information Technology Act, 2000 (hereinafter referred as ‘IT Act’), it must be filed along with a certificate in compliance of the conditions mentioned in Section 65B of the Evidence Act. However, if the original electronic record is produced in the court, the compliance of Section 65B is not mandatory.

It is settled law that secondary evidence is only admissible in Court when the person who prepared the copy of the original document, must have seen the original document himself. (See Bank of Baroda, Bombay v. Shree Moti Industries, Bombay and others, AIR 2008 Bom 201). A perusal of the record reveals that Insp. Amrik Raj (PW-13) had not heard the original recording from the digital recorder.

 

The digital tape recorder, which was used to record the questioned conversation was neither produced before the Court, nor it was examined. No certificate under section 65B, Indian Evidence Act, 1872 was produced with respect to the transcript memo (Ex. PW-3/F) prepared from the conversation. Placing reliance on Rakesh Kumar & Ors. v. State, 2009 (163) DLT 658, learned senior counsel submits that the computer generated electronic records is admissible at a trial only if proved in the manner specified by Section 65B of the Evidence Act. He submits that the recorded conversation was full of disturbance and most of it was not clear. In this regard, the complainant (PW-3), in his cross examination, stated that “It is correct that there is lot of disturbance in the cassette played today… … There was no noise in room No.902 but there was noise in surroundings.”

Learned counsel submits that with regard to the transcript (Ex. PW- 3/G), section 65B, Evidence Act is not applicable in this case to the memos. The transcripts have only been typed in the computer and have not come into existence on the computer like an email or digitally signed document. In this regard, reliance is placed on Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473.


 

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on:      11.03.2015

Judgment delivered on:      19.04.2016

+       Crl.A. 263/2009

GIRWAR SINGH                                             ….. Petitioner

Through:      Mr. R.N. Mittal, Sr. Adv. with Mr.

Abhijeet Singh, Advocate.

versus

C.B.I.                                                 ….. Respondent

Through:      Mr. Narender Mann, SPP with Mr.

Manoj Pant and Ms. Utkarsha Kohli,

Advocates.

+       Crl. A. 279/2009

LALA RAM                                               ….. Petitioner

Through:      Mr. Tanveer Ahmed Mir and Ms.

Megha Gurnani, Advocates.

versus

C.B.I.                                                 ….. Respondent

Through:      Mr. Narender Mann, SPP with Mr.

Manoj Pant and Ms. Utkarsha Kohli,

CORAM:

HON’BLE MR. JUSTICE VIPIN SANGHI

Crl263/2009 & Crl. A. 279/2009

VIPIN SANGHI, J.

  1. These two appeals have been preferred by the two appellants individually under Section 374 Criminal Procedure Code, 1973 (Cr PC) to assail the common judgment dated 21.03.2009 and order of sentence dated 23.03.2009 passed by Learned Special Judge, in CC No. 30/2003 arising out of F.I.R No. RC-DAI-2002(A)-0035 under Section 120-B, Indian Penal Code, 1860 (IPC) read with Section 7 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (PC Act). Appellant Girwar Singh – the appellant in Crl.A. 263/2009 (hereinafter referred as ‘Appellant No. 1’), was sentenced to undergo Rigorous Imprisonment (‘R.I.’) for one year with fine of Rs. 5,000/-, and in default of payment of fine, to undergo Simple Imprisonment (‘S.I.’) for 7 days for offence punishable under Section 120-B IPC. He was further sentenced under Section 7 of the PC Act to undergo R.I. for a period of two and a half years and to pay a fine of Rs. 15,000/-, and in default of payment of fine, to undergo S.I. for 15 days. He was sentenced to R.I. for three years and to pay a fine of Rs. 20,000/-, and in default of payment of fine, to undergo S.I. for 15 days for offence punishable under Section 13(2) read with Section 13(1)(d) of the PC Act. Appellant, Lala Ram – the appellant in Crl.A. 279/2009 (hereinafter referred to as ‘Appellant No. 2’), was sentenced to undergo R.I. for one year and a fine of Rs. 5,000/-, in default of payment of fine, further S.I. for 7 days for offences punishable under Sections 120-B IPC. He was further sentenced under Section 7 of the PC Act to undergo R.I. for a period of two years and to pay a fine of Rs. 10,000/-, and in default of payment of fine, to undergo S.I. for 15 days. He was sentenced to R.I. for two and a half years and to pay a fine of Rs. 15,000/-, and in default of payment of fine, to undergo S.I. for 15 days for offence punishable under Section 13(2) read with Section 13(1)(d) of the PC Act. All the sentences of appellant no. 1 and appellant no. 2 were directed to run concurrently.
  2. The facts in both the appeals arise out of the same FIR (Ex. PW-14/A) dated 03.06.2002. Appellant no. 1 Girwar Singh was a Senior Audit Officer, and appellant no. 2 Lala Ram was an Assistant Audit Officer working in the Sales Tax department.
  3. The facts as enumerated in the charge-sheet are that the prosecution/C.B.I. registered the case on 03.06.2002 on the basis of the written complaint of Sh. Rajpal Katyal (PW-3), Proprietor, M/s. Kailash Engineers (hereinafter referred to as ‘Firm’). He inter alia stated that he was having a business of spare parts of diesel generator sets and the firm was registered with Delhi Sales Tax Department. An audit party of Accountant General of Audit, Delhi was doing audit of Sales Tax Department from 30.04.2002 to 27.05.2002. Complete folder of M/s. Kailash Engineers was handed over to Audit Party on 15.05.2002. On 23.05.2002, his Accountant Sachin Arora was called by Audit Branch of Sales Tax Department, where he met appellant no. 2, Assistant Audit Officer, who asked Sachin Arora (PW-5) to produce some documents for the year 1996-97 and 1997-98. Appellant No. 2 further informed that the purchase orders have not been enclosed with “C” forms, and ST-I form was not enclosed with the return for the year 1997-98. On 27.05.2002, Rajpal Katyal sent the documents through Sachin Arora but appellant no. 2 demanded Rs. 15,000/- for accepting the documents and stated that he would, otherwise, raise audit objections.

Thereafter, on 30.05.2002, Rajpal Katyal again sent Sachin Arora to Sales Tax Office to enquire the purpose of demand of money. After visiting Sales Tax office, appellant no. 2 introduced Sachin to appellant no. 1, Senior Audit Officer, who told that they have studied the case and found that one ST-I Form in return of 1997-98 was deficient, and a demand of Rs. 6 lacs could be raised on that ground, but the matter could be closed if Rs. 40,000/- are paid – and not Rs. 15,000/- as demanded by appellant no. 2. It was further informed that the amount was to be shared by all members of the audit party. On 31.05.2002, Rajpal Katyal himself visited Sales Tax Office and contacted appellant no. 1 & 2 and enquired about his firm’s case. Both the appellants informed him that the matter had been explained to his Accountant the previous day and that the amount to settle the matter had also been intimated to Sachin Arora. Rajpal Katyal expressed his inability to pay such a huge amount, whereupon appellant no. 1 reduced the amount to Rs. 30,000/- stating that it could not be reduced further, as the same was to be shared by other members of his team and directed him to pay the bribe by 03.06.2002. Since he did not want to pay the bribe, he lodged the complaint (Ex. PW-3/A).

  1. After the registration of the case, the trap party headed by Inspector Umesh Vashishth, Trap Laying Officer (TLO) (PW-14) was constituted and two independent witnesses -Sh. S.S. Rana, shadow witness (PW-8) LDC, Staff-III and Sh. Mann Singh, recovery witness (PW-4) Assistant, both from the office of Director General, Doordarshan, Mandi House, were associated. During the pre-trap proceedings, the complainant Rajpal Katyal produced Rs. 20,000/- in the form of 40 GC notes of Rs. 500/- denomination each.

The numbers of GC notes were noted in the Annexure A to the Handing Over Memo (Ex. PW-3/C). Inspector C.K. Sharma gave a demonstration by applying phenolphthalein powder on those GC notes and showed its reaction with sodium carbonate, the solution turned pink. After treatment, the treated GC notes were handed over to the complainant (PW-3), with the direction to hand over the tainted GC notes to appellant no. 2 or his associates on specific demand. Further, the shadow witness Mann Singh (PW-4) was directed to act as a shadow witness and give the signal by scratching his head with both the hands after the bribe transaction was over. The complainant (PW-3) was also directed to give a signal by dialling the pre- fed mobile number of ‘CBI’ Mobile No. 9810636241 from his mobile no. 9810660147. A Samsung digital recorder, SVR 240, was also handed over to the complainant (PW-3) for recording the conversation at the spot, as per the ‘Tape Recording Handing Over Memo’ (Ex. PW-3/D).

  1. At about 2:00 PM, the trap party along with the two independent witnesses aforesaid and the complainant (PW-3) left CBI office and reached Sales Tax Office, ITO at about 2:25 PM. The complainant (PW-3) and shadow witness (PW-4) were directed to enter room no. 902 and contact the appellants, whereas the other members of the trap party took suitable positions near the office of the appellants at 9 th floor. The complainant (PW-

3) discussed with the appellant No.1, about the bribe amount to be paid for the settlement of sales tax matter. After the conversation, the complainant (PW-3) paid the tainted amount of Rs. 20,000/- to appellant no. 1 and stated that the remaining amount would be delivered later on. Appellant No. 1 accepted the bribe amount by his right hand and after counting them, kept the same in his left hand. After the bribe transaction was over, the shadow witness (PW-4) went outside and gave the pre-determined signal. The complainant (PW-3) also gave the signal through his mobile and in the meantime, appellant no. 1 leaned towards his left side and hid the bribe amount. On receipt of pre-determined signal at about 3:00 PM, the trap party entered in the office room and challenged appellant no. 1 having demanded and accepted Rs. 20,000/- as bribe amount. Thereafter, the bribe amount, which had been concealed under the carpet near the left side of appellant no.1, was recovered and the number of GC notes tallied. The wash of both the hands of appellant no. 1 as well as portion of carpet under which the amount had been concealed were taken, which turned pink. The conversation between the appellant and complainant (PW-3) as recorded in the Samsung digital recorder was heard at the spot, which confirmed the discussion between the complainant (PW-3) and appellant no. 1 about the sales tax matter and the settlement of bribe between them. The conversation recorded in the digital Samsung recorder was transferred to another cassette, which was sealed at the spot. In addition, another cassette was prepared for investigation purposes which were left unsealed. Thereafter, the search of tables of the three members of the audit party namely, appellant no. 1, appellant no. 2 and Amar Singh Rawat, senior auditor was taken. The files relating to complainant’s firm were recovered from the possession of Amar Singh Rawat and the same were seized.

  1. Subsequently, during investigation, the washes were referred to CFSL for chemical examination and the CFSL expert vide his report (Ex. PW-2/A) dated 25.06.2002 opined that washes gave positive test for phenolphthalein and sodium carbonate. Further, the voice samples of appellant no.1, appellant no. 2, Amar Singh Rawat and complainant (PW-3) were sent to CFSL for comparison with the specimen voice samples. CFSL confirmed the similarity of questioned voice and specimen voice samples of appellant no. 1 and complainant (PW-3) with the voice in cassette in respect of linguistic and phonetic features on basis of auditory examination, and similarity in respect of format frequencies distribution, intonation pattern, number of formants and other general visual features in voice grams on the basis of voice spectrographic examination vide Ex. PW-1/B.
  2. Thereafter, the competent authority i.e. the Director General of Audit, Central Revenue, IP Estate, New Delhi, accorded sanctions under section 19 of the PC Act for prosecution of appellant no. 1 and appellant no. 2 vide Ex. PW-15/A and Ex. PW-15/B. After taking cognizance, both the accused were summoned and on appearance, they were supplied copies of charge sheet and documents. On 23.02.2004, the learned Predecessor of the Trial Court framed the charges against both the accused under section 120-B, IPC and under section 7 & 13(2) read with section 13(1)(d) of the PC Act, to which they pleaded not guilty, and claimed trial.
  3. The prosecution examined 15 witnesses to prove its case. They are as follows:

 

PW-1 Dr. Rajinder Singh, PSO (Physics), CFSL, New Delhi.

PW-2 K.S. Chabra, SSO cum Assistant Chemical Examiner, CFSL.

PW-3 Rajpal Katyal (the complainant). He proved his complaint.

PW-4 Mann Singh (the independent shadow witness).

PW-5 Sachin Arora, Accountant with M/s. Kailash Engineering.

PW-6 Darshan Singh, Sales Tax Officer.

PW-7 Rakesh Kumar, Sole Proprietor, Shahdara Steel Rolling Mills (Firm which purchased the generator set from M/s. Kailash Engineers).

PW-8 S.S. Rana (the independent recovery witness).

PW-9 Mukesh Kumar, Value Added Tax Inspector (Sales Tax Inspector), Dept. of Sales Tax

PW-10 Chander Mohan, Director Administration, Office of the Principal Director of Audit.

PW-11 Gurbachan Lal, Senior Audit Officer.

PW-12 Ajay Chandana, Junior Account Officer, Gurunank Dev Polytechnic.

PW-13 Inspector Amrik Raj, Economic Offences Wing, Crime Branch (the Investigating Officer).

PW-14 Umesh Vashishth, Inspector CISF (Raid Officer/ Trap Laying Officer).

PW-15 H.P. Dass, Chairman, State Administrative Tribunal Orissa (Sanctioning Authority of both appellant no. 1 and appellant no. 2).

  1. The statement of the appellant no. 1 was recorded under Section 313, Cr.P.C. He claimed to be innocent and falsely implicated in this case. He further stated that:

“The case is false. The complainant Raj Pal Katyal did not submit the ST-I Form for getting the exemption from depositing the sale tax about Rs.7 lacs and he got the assessment order in his favour from the Sale Tax Officer knowing fully that if this fact came to the knowledge of any other authority i.e. auditor or superior officer of Sales Tax Officer who conducted the assessment, so he has been watching and following his file and when he came to know that there was likelihood that the said concealment of non depositing of ST-I Form upon which he got the exemption of Rs.7 lacs sales tax, so in order to save himself that no person could pass any order against him, he falsely lodged a complaint with the CBI against me and other members of the auditing party and falsely got involved in this case. The said file upon which the assessment order has been passed by the sales Tax Officer was likely to be sent for audit and the complainant knew that this concealment would not remain under the file and would come on the surface, so he got laid down a false trap and got me and Lala Ram falsely arrested in this case. I never demanded any illegal gratification from complainant Raj Pal Katyal because the said file never came to me and I did not raise any objection, so the dropping of the objection did not arise by me as mentioned in the sanction order. The complainant manipulated to keep the money under the Carpet in order to falsely implicate me because he knew that I would not accept the money because I had never demanded or agreed to accept the illegal gratification from him. Raj Pal Katyal had already falsely implicated one officer of Income Tax Department when he found that he was likely to be implicated in the evasion of income tax. He is very close to certain CBI officers as one of his close relative is in CBI who has helped him illegally and unlawfully in conducting the raid against me.”

  1. The appellant no. 2 in the statement recorded under Section 313, Cr.P.C stated that he was innocent and that it was a false case.
  2. The appellant no. 1 examined the following witnesses in support of his defence:

DW-1 Deepak Kumar, Senior Audit Officer.

DW-2 Madan Lal, UDC, Record Keeper, Sales Tax.

DW-3 L.S. Thakur, Senior Auditor.

DW-4 R.S. Sharma, Audit Officer.

DW-5 D.R. Raja, Senior Audit Officer.

DW-6 Neksay Lal, Senior Audit Officer.

However, the appellant no. 2 did not lead any evidence in his defence.

  1. The Trial Court on an analysis of the evidence came to the conclusion that the case against the appellant no. 1 and appellant no. 2 had been proved by the prosecution beyond reasonable doubt and, thus, convicted the appellants.

Submissions on behalf of Girwar Singh Appellant no.1:

  1. Mr. Mittal, learned senior counsel, appearing for appellant no. 1, submits that there are contradictions in the statements of the complainant (PW-3), rendering his testimony unreliable. The complainant (PW-3) in the examination-in-chief, inter alia, stated that:

“On 31.05.2002, I personally met both the accused, who are present in the court today (Correctly identified). I showed my inability to pay Rs.40,000/- and on my request they reduced the amount to Rs.30,000/- and further told that this could not be reduced. I was directed to pay the settled amount of Rs.30,000/- on 3.6.2002. I asked the accused persons if I could not arrange the amount then I was told that whatever amount I could arrange, the same should be paid.”

  1. However, the complainant (PW-3), in his cross-examination, stated as follows:

“I did not ask for Lala Ram in room No.902 and I asked for Girwar Singh only. I talked to Girwar Singh only. I had interaction with Lala Ram in CBI office for a minute.”

  1. Mr. Mittal submits that it is evident from the statements of the complainant (PW-3) that there is a contradiction with regard to the presence of appellant no. 2 when he allegedly had conversation regarding the demand and negotiation of the bribe amount. The complainant (PW-3), earlier deposed that both the appellants were present when the demand was made, however, in his cross examination, he stated that he only enquired about appellant no. 1 and had conversation with appellant No. 1. Therefore, it raises a doubt whether there was any demand for bribe, and by whom was it demanded. He submits that there is no evidence of demand by the appellant no.1. Learned senior counsel submits that the proof of demand is a sine qua non to constitute the offences in question. In this regard, he places reliance on Banarasi Dass v. State of Haryana, (2010) 4 SCC 450, Rakesh Kapoor v. State of Himichal Pradesh, (2012) 13 SCC 552, State of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368, B. Jayaraj v. State of A.P., 2014 (13) SCC 55, Ashish Kumar Dubey v. State thr. C.B.I., 2014 (142) DRJ 396.
  2. Learned senior counsel submits that as per the examination in chief of the complainant (PW-3), it is clear that there was no demand by appellant no. 1 even on 03.06.2002. The complainant (PW-3) states that after he reached the sales tax office along with Sachin Arora (PW-5), he introduced himself and informed the appellants that he could arrange Rs. 20,000/- and thereafter, he handed over the bribe money to appellant no. 1. Thus, in the light of the statement of the complainant (PW-3), it stands established that there was no demand by the appellant no. 1. Even according to the statement of the complainant (PW-3) the money was allegedly handed over without there being any demand.
  3. Learned senior counsel submits that as per the testimony of the shadow witness (PW-4), there was no demand by appellant no.1, and there was only acceptance. In this regard, the statement of the shadow witness (PW-4) is relied upon which is as follows: “Mr. Katyal sat in front of Mr. Girwar Singh, accused present in the Court (correctly identified). They were talking about some case and after some time Mr. Katyal gave the tainted GC notes to Mr. Girwar Singh.” He submits that since demand is an essential ingredient for constituting an offence under PC Act, in the absence of demand, the appellants cannot be convicted for the offence.
  4. Learned senior counsel for the appellant no.1 submits that the shadow witness (PW-4) had earlier been a witness in a CBI raids. In this regard, shadow witness (PW-4) stated that “I have joined 2-3 CBI raids as a witness.” Being a stock witness of the CBI, the statement of the shadow witness cannot be relied upon as an independent witness. In this regard, he places reliance on Pyare Lal v. State, (2008)149 DLT 425 and G.V. Nanjundiah v. State (Delhi Administration), 1987 Supp. SCC 266.
  5. Learned senior counsel submits that the digital tape recorder, which was used to record the questioned conversation was neither produced before the Court, nor it was examined. No certificate under section 65B, Indian Evidence Act, 1872 was produced with respect to the transcript memo (Ex. PW-3/F) prepared from the conversation. Placing reliance on Rakesh Kumar & Ors. v. State, 2009 (163) DLT 658, learned senior counsel submits that the computer generated electronic records is admissible at a trial only if proved in the manner specified by Section 65B of the Evidence Act. He submits that the recorded conversation was full of disturbance and most of it was not clear. In this regard, the complainant (PW-3), in his cross examination, stated that “It is correct that there is lot of disturbance in the cassette played today… … There was no noise in room No.902 but there was noise in surroundings.”
  6. Mr. Mittal submits that as per the statement of the TLO (PW-14), the original recording was transferred into two cassettes, out of which one was sealed and the other was not sealed and the original recording was deleted. Therefore, tampering with the cassette cannot be ruled out and the same is not admissible in the court. In this regard, he places reliance on Ram Singh & Ors. v. Col. Ram Singh, (1985) Supp SCC 611, wherein the Supreme Court held that the tape recording conversation cannot be relied upon if there are lots of disturbance in the cassette played before the court, and the possibility of tampering cannot be ruled out. Further, the complainant (PW-

3) stated that “It is also correct that the said conversation was transferred in a blank cassette which was sealed at the spot and its wrapper was signed by us.” Hence, there is inconsistency as the complainant does not talk about the recording being transferred into two cassettes, creating a doubt as to whether the recording was transferred at all, or not. Even the shadow witness (PW-4) does not support the prosecution case with regard to the transfer of the recording to two cassettes.

  1. Mr. Mittal submits that it is evident from the statement of the complainant (PW-3) that a portion of the recording is inaudible. Further, in the portions audible, only the voice of the complainant (PW-3) can be heard talking. Nothing in the conversation in cassette has been attributed to appellant no. 1. He submits that from the testimony of the complainant (PW-

3) -with respect to the recording of the cassette, the transaction between the complainant (PW-3) and appellant is inconclusive.

  1. Learned senior counsel submits that there is contradiction qua the date of recording of the specimen voice. The complainant (PW-3) in his examination-in-chief, inter alia, stated that “I was again called in the CBI office where specimen voice of myself and Girwar Singh were recorded and a memo was prepared in respect of sealing the cassette. The memo is Ex. PW 3/F bearing my signature at point-A.”. Further, in his cross examination he stated that “it is correct that on the day of raid, my specimen voice or that of accused Girwar was not recorded. It was recorded on 5 th only.” However, as per the Specimen voice recording memo (Ex. PW-3/H), the recording of the specimen voice was done on 25.07.2002. This is also corroborated by the statement of the I.O. (PW-13). The I.O (PW-13) stated that “I also recorded the specimen voice of the accused Girwar Singh and the complainant Rajpal Katiyal in the presence of independent witnesses Sh. Mann Singh and Sh. SS Rana on 25.7.02.”. Thus, there is material contradiction in the statement of the complainant (PW-3) and Insp. Amrik Raj, I.O. (PW-13), read with (Ex. PW-3/H).
  2. Moreover, the shadow witness (PW-4) in his cross examination, inter alia, stated that “Perhaps specimen voice of accused No. 1 was recorded in CBI office on the day of raid but it was not recorded at the spot. I do not remember if specimen voice of complainant was recorded at the spot or in the CBI office on that day.” The shadow witness (PW-4) also does not support the statement of the complainant (PW-3) with respect to the date of recording of specimen voice.
  3. Learned senior counsel submits that in view of the contradiction in the statements of the shadow witness (PW-4) & I.O. (PW-13), with regard to the sealing of the cassette, there was a possibility of tampering with the samples. The shadow witness (PW-4) deposed that after hearing the conversation, it was transferred in a blank cassette, which was thereafter sealed and signed at the spot. However, the I.O. (PW-13) in his re-examination, inter alia, stated that “I state that the transcription was prepared after listening the investigation copy of the cassette recorded on 3.6.2002 of the conversation between Sh. Rajpal Katiyal and Girwar Singh. This Memo was prepared and signed by me. The investigation copy of the cassette was not in sealed condition. I was a little bit confused as I had thought that the Ld. Defence Counsel is asking about the cassette used for recording the specimen voice.”

He submits that it is clear from the statement of the Insp. Amrik Raj, I.O. (PW-13) that the transcription was prepared after opening the seal of the cassette, and without taking permission of the court to open the seal. Further, the Insp. Amrik Raj, I.O. (PW-13) admitted that “I did not inform the CFSL Authority regarding the breaking of the seal of the cassette from which I prepared the transcription.” Consequently, the cassette cannot be relied upon, as there is grave possibility of the samples having been tampered with.

  1. Another submission of learned senior counsel is that the Insp. Amrik Raj, I.O. (PW-13) admitted that he did not file the investigation copy of the cassette on the record along with the charge-sheet.
  2. Learned senior counsel submits that the T.L.O. (PW-14) stated that after taking the digital recorder from the complainant (PW-3), it was heard and thereafter, Sub Inspector Prem Nath transferred the conversation into a cassette. However, neither Prem Nath was produced as a witness before the court nor any statement was recorded under section 161, Cr.P.C. to the effect that he transferred the conversation into a cassette from digital recorder.
  3. Mr. Mittal submits that there is no provision regarding taking of voice sample. He submits that the scope of section 311A, Cr.P.C. is with regard to the power of the magistrate to give specimen for signature or handwriting for the purposes of any investigation. Thus, there is no provision for taking the specimen of voice sample. In this regard, reliance is placed on Rakesh Bisht v. CBI, 2007 (2) AD (Delhi) 23 and Ritesh Sinha v. State of Uttar Pradesh & Anr., (2013) 2 SCC 357. Further, he submits that due to the difference of opinion of the courts, the matter has been referred to a larger bench.
  4. Mr. Mittal submits that motive and demand are the basis of a case under the PC Act. He submits that the allegation of the complainant (PW-3) in the complaint (Ex. PW-3/A) is that the accused/appellant no.1 refused to accept documents, unless the bribe was paid. The complainant (PW-3) in his cross examination stated that “It is correct that ST-1 form was deficient in that file.” Further, he stated that “It is correct that the ST-1 form was never issued in my favour by the purchaser of the generator.” Thus, it cannot be the case that the bribe was being demanded to hush up the ST-1 form.
  5. Learned senior counsel submits that there was contradiction in the statement of the complainant (PW-3) made during his cross examination and his statement recorded under section 161, Cr.P.C (Ex. PW-3/DA). The complainant (PW-3), in his cross-examination, inter alia, stated as follows:

“I did not state before CBI that accused No. 1 was challenged for demanding and accepting Rs.30,000/-. (Confronted with portion-A to A statement Ex. PW-3/DA where it is so recorded).”

  1. However, complainant (PW-3) in his statement recorded under section 161, Cr.P.C. (Ex. PW-3/DA), stated that “You challenged the accused persons as together they had demanded and accepted bribe of Rs. 30,000/- from me. On this the accused became confused and kept mum.” He states that under the Proviso to Section 162, Cr. P.C. such statements recorded under Section 161, Cr.P.C. can be used only for the purpose of contradicting a prosecution witness in the manner indicated in Section 145, Evidence Act, and for no other purpose. Thus, the previous statement of a witness can be used by the accused for the limited purpose mentioned in Section 162 of the Code as provided for in Section 145 of the Evidence Act. Consequently, it would not be safe to rely on the statement of the complainant (PW-3) as his statements are contradictory and all other witnesses have turned hostile.
  2. Ld. Senior Counsel submits that the shadow witness (PW-4) in his testimony deposed that he did not know, if one person with the name of Sachin Arora (PW-5) was present at the time of meeting the appellant. Thus, it creates doubt about the presence of the accountant Sachin Arora (PW-5) at the time of the transaction.
  3. Another submission of Mr. Mittal is that there was a leading question put to the shadow witness (PW-4). The shadow witness (PW-4), in reply to a leading question, states:

“It is correct that while extending the bribe amount towards Girwar Singh, the complainant told Girwar Singh that he could arrange only Rs.20,000/- and remaining amount will be delivered soon through the person accompanying him”

  1. He submits that leading questions cannot be put to the witness by the prosecution. Thus, the fact that a conversation regarding the payment of the remaining bribe amount later took place between the complainant (PW-3) and appellant no.1 cannot be used in evidence against the appellant no.1.
  2. Mr. Mittal submits that Sachin Arora (PW-5) does not support the case of the prosecution. Sachin Arora (PW-5), is his cross examination, inter alia, stated:

“It is incorrect to suggest that after brief discussion about the case, Mr. Katyal handed over the bribe amount to Girwar Singh who accepted the same with his right hand and after counting the same with both hands, kept the same in his left hand. (Confronted with portion K to K where it is so recorded).”

  1. Sachin Arora (PW-5) denied that any such transaction took place between the complainant (PW-3) and the appellant. Thus, the testimony of Sachin Arora (PW-5) does not support the prosecution’s case.
  2. Learned senior counsel submits that the statement of the recovery witness (PW-8) with regard to the transaction between the complainant (PW-3) and appellant no. 1 would fall within the purview of rule of hearsay evidence. The recovery witness (PW-8) stated that:

“Sh. Mann Singh, shadow witness also again entered in the room along with the raiding party after giving the signal. Inspector Vashishth inquired from Sh. Raj Pal Katyal and Sh. Mann Singh about the transaction of bribe money and the conversation which took place between Sh. Raj Pal Katyal and the accused. Sh. Raj Pal Katyal and Sh. Mann Singh both disclosed to Inspector Vashishth that accused Girwar Singh had accepted bribe money in his right hand and thereafter he counted the same with both hands. Sh. Raj Pal also disclosed that after accepting the bribe money, accused Girwar Singh had bent towards one side while remained sitting on his chair.”

  1. The TLO (PW-14) deposed that he inquired from the shadow witness (PW-4) regarding the transaction of the bribe, and the shadow witness (PW-

4) informed that after the discussion with appellant no. 1, appellant no.1 accepted the bribe money from the complainant (PW-3) from his right hand and counted them with both his hands and kept them in his left hand. The TLO (PW-14) further deposed that he was informed by the complainant (PW-3) that while he was giving a miss call, the appellant no. 1 bent towards his left side and when he sat on the chair, the bribe amount was not in his hands. Thus, the statement of the recovery witness (PW-8) and TLO (PW-

 

14) being hearsay evidence, are not admissible in evidence. Further, neither the complainant (PW-3), nor shadow witness (PW-4), who were present inside the room when the transaction took place, stated in their depositions that appellant no. 1 bent down to place the bribe money.

  1. The shadow witness (PW-4) in his statement stated that “It is incorrect to suggest that after accepting the (sic.) bribe amount, accused Girwar Singh counted the same with his both hands and after that kept the same in his left hand.” The shadow witness does not support the prosecution case that the appellant no. 1 accepted the bribe money and thereafter, counted the same.
  2. Learned senior counsel submits that as per the statement of the shadow witness (PW-4), the search was made for the tainted notes, which was finally recovered under the carpet from the portion just under the chair of the appellant no. 1. He submits that it was not possible that during the process of search, the notes were recovered from the chair underneath.
  3. Learned senior counsel submits that the complainant (PW-3), in his testimony, has nowhere stated that he saw the appellant no. 1 leaning towards the left and concealing the bribe money, or he informed the I.O. (PW-13) regarding the fact that the money was concealed by leaning. However, the recovery memo (Ex. PW-3/E) states that “The complainant also confirmed the same version of shadow witness and further added that while he was busy in giving signal on CBI cell phone through his mobile, he saw the accused Shri Girwar Singh leaning towards his left side and concealed the bribe amount as the same was not seen in his hands later.” Further, the shadow witness (PW-4), in his cross examination, stated that there could be a possibility that the complainant (PW-3) told the CBI that the appellant no. 1 leaned and concealed the bribe amount. Thus, there is contradiction qua the fact that whether the complainant (PW-3) knew about the concealment of the bribe amount by leaning, or not.
  4. Learned senior counsel submits that Sachin Arora (PW-5) did not support the case of the prosecution. Sachin Arora (PW-5) in his cross examination denied that the bribe amount was accepted by appellant no. 1 in his presence and thereafter he concealed it. He denied that he was present at the time of the post trap proceedings. He denied that his signatures are present on the recovery memo (Ex. PW-3/E). He further denied that the bribe money was recovered from underneath the carpet, and that the hand washes were conducted in his presence. Thus, the testimony of Sachin Arora (PW-5) cannot be relied upon.
  5. On the aspect of recovery, learned senior counsel submits that it is clear from the statements of the complainant (PW-3), shadow witness (PW-

4), recovery witness (PW-8) and the TLO (PW-14) that the bribe amount was not recovered from the appellant, but from underneath the carpet under the chair of appellant no. 1. Therefore, it cannot be construed that the recovery is established, and appellant no.1 was in possession of the GC notes. In this regard, reliance is placed on Suraj Mal v. State (Delhi Administration), (1979) 4 SCC 725, M.K. Harshan v. State of Kerala, (1996) 11 SCC 720, C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779.

  1. Learned senior counsel submits that the TLO (PW-14), in his deposition stated that after searching for the bribe amount at other places, the shadow witness (PW-4) informed that the bribe money was found under the carpet. In this regard, the TLO (PW-14) stated that:

“The drawer of the table of the accused was searched but the bribe money was not found. Thereafter search of other places around the table of the accused were conducted and during the search, the independent witness Sh. Mann Singh informed that the bribe money was kept under the Carpet on the floor of the office room, towards the left side of the accused Girwar Singh.”

  1. However, the shadow witness (PW-4) has nowhere stated in his testimony stated that he informed about the bribe money being kept under the carpet.
  2. Learned senior counsel submits that there is inconsistency between the statement of TLO (PW-14) and the complainant (PW-3) with regard to the moving of chairs and tables to recover the bribe money. The complainant (PW-3) stated that “It is correct that certain articles like furniture drawer etc. were moved to find out where the money has been kept and money was not recovered from drawer.” However, the TLO (PW-14) stated as follows:

“It took about 10 minutes to me in checking the drawers of the table of the accused Girwar Singh.

So far as I remember there were some damages in the carpet and without removing table and chair, the tainted money was recovered under the carpet.”

  1. Thus, there is inconsistency in the statements of the TLO (PW-14) and the complainant (PW-3) qua the movement of furniture, etc. to recover the bribe amount from the carpet.
  2. Learned senior counsel submits that as per the testimony of the recovery witness (PW-8), he did not search for the bribe money. He further stated that the carpet was 8″ x 10″. However, there is contradiction with regard to the area which was covered by the carpet as the other witnesses stated that the carpet was wall to wall. Learned senior counsel submits that the site plan (Ex. PW-4/A), is only a corroborative piece of evidence, and not substantive evidence. He submits that the dimensions have not been mentioned in the site plan and it is not even clear whether it has been prepared by the I.O. or not. The table and chairs have also not been shown or marked in the site plan.
  3. Mr. Mittal submits that the complainant (PW-3) stated that the portion of the carpet from where the tainted amount was recovered, was also seized. However, none of the other witnesses deposed that piece of the carpet was cut out.
  4. Learned senior counsel submits that the shadow witness (PW-4) does not remember if the portion of the carpet from where money was recovered, was also taken. He submits that during cross examination, the shadow witness (PW-4) did not remember as to who had cut the carpet, and what cutting instrument was used.
  5. The recovery witness (PW-8) in his statement stated that the bottle Ex. P-3 contained very less, approximately 10 teaspoons of lightest pink colour solution. Even Ex. P-2 contained lightest pink colour solution. Thus, it creates doubt regarding the presence of phenolphthalein powder.
  6. Learned senior counsel submits that the sanction order (Ex. PW-15/A) does not show that the sanctioning authority has applied his mind while granting the sanction. He submits that, firstly, the sanction order is incomplete, as mere demand of the appellant is not sufficient, as it does not show that there was acceptance or recovery of the gratification amount of Rs. 20,000/- by the appellant no.1. Further, the sanction order (Ex. PW- 15/A) is for the bribe amount of Rs. 30,000/- which shows that there is no application of mind by the sanctioning authority (PW-15).
  7. Mr. Mittal submits that from the testimony of Deepak Kumar Gupta (DW-1), it is established that appellant no. 1 did not have any file pertaining to the complainant (PW-3). Deepak Kumar Gupta (DW-1), inter alia, stated that “The summoned record i.e. file of alleged objections raised by Girwar Singh on the file of M/s. Kailash Engineering is not in our office. … In this file, there is no document or photocopy showing raising of objection by Girwar Singh.” Thus, the appellant did not have the file pertaining to the complainant.

Submissions on behalf of Lala Ram – appellant no.2:

  1. Mr. Tanveer Ahmed Mir, learned counsel appearing for appellant no. 2 submits that in the case of Amar Singh Rawat – the third person who was present in the room when the transaction happened, the sanctioning authority initially refused to accord sanction to prosecute him. However, the sanction was accorded qua him later, but the trial court discharged him. He submits that the role of appellant no. 2 is at par with Amar Singh Rawat and, therefore, the appellant no. 2 should be discharged from the charges as well.
  2. Learned counsel submits that no demand has been established by/against appellant no. 2, and neither was there any acceptance or recovery from the appellant no. 2. He further submits that no voice recording of the appellant no. 2 was found in the recorded conversation. Therefore, the appellant no. 2 cannot be charged with conspiracy for obtaining gratification from the complainant (PW-3).
  3. Learned counsel submits that although a phone call was received from sales tax office on 23.05.2002, Sachin Arora (PW-5) nowhere mentions in his statement from ‘whom’ the call was received. Further, Sachin Arora (PW-5) denied that when he visited the Sales Tax Office on 27.05.2002, he met appellant no. 2 and that demand for bribe was made at that time.
  4. Learned counsel submits that the demands allegedly made by the appellant No.2 on 25.07.2002 and by appellant No.1 on 30.05.2002 for bribe of Rs.15,000/- and Rs.40,000/- respectively are not established as they are hearsay evidence of the complainant PW-3. These demands were allegedly made to Sachin Arora (PW-5), who had turned hostile. He has referred to the examination-in-chief of PW-3, the complainant, wherein he, inter alia, stated:

“On 31.5.2002, I personally met both the accused, who are present in the court today (Correctly identified). I showed my inability to pay Rs.40,000/- and on my request they reduced the amount to Rs.30,000/- and further told that this could not be reduced. I was directerd to pay the settled amount Rs30,000/- on 3.6.2002. I asked the accused persons if I could not arrange the amount of Rs.30,000/- then I was told that whatever amount I could arrange, the same should be paid.”

  1. Learned counsel submits that the statement of PW-3 does not show that on 31.05.2002 any demand was raised by the two accused. The complainant on his own accord claims to have offered to pay the amount to the accused.

 

  1. Learned counsel submits that Sachin Arora (PW-5), who allegedly was dealing with appellant no. 2, turned hostile, and did not support the case of the prosecution. Further, the shadow witness (PW-4) does not implicate appellant no. 2 in his statement. The shadow witness (PW-4) stated that the complainant (PW-3) spoke to appellant no. 1 before the tainted notes were handed over to him.
  2. Learned counsel submits that on a perusal of the CFSL report of the audio recording, it is clear that nothing incriminating was found qua the appellant no. 2.
  3. Learned counsel for appellant no. 2 placed reliance on the following judgments:
  4. State of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368.
  5. B. Jayaraj v. State of A.P., JT 2014 (7) SC 381.

iii.    Surinder Kaur v. State of Haryana, 2014 (10) SCALE 716

Submissions on behalf of the CBI:

  1. On the other hand, learned counsel for the CBI fully supports the judgment and order of the trial court. He submits that there was demand for bribe by the appellants. The complainant (PW-3) in his deposition stated that:

“On 31.05.2002, I personally met both the accused, who are present in the court today (Correctly identified). I showed my inability to pay Rs. 40,000/- and on my request they reduced the amount to Rs. 30,000/-and further told that this could not be reduced. I was directed to pay the settled amount of Rs. 30,000/- on 3.6.2002. I asked the accused persons if I could not arrange the amount of Rs. 30,000/- then I was told that whatever amount I could arrange, the same should be paid.”

(Emphasis supplied)

  1. Thus, the essential ingredient of demand by the appellant no. 2 stands established.
  2. Mr. Mann, learned standing counsel for CBI submits that the complainant (PW-3) has deposed and proved that on 31.05.2002 he visited the office of the Sales tax at 9th Floor and personally met both the appellants and showed his inability to pay 40,000/- which was reduced to Rs. 30,000/- with the direction to pay on 3.6.2002. PW-3 corroborated the demand by his contemporaneously made written complaint (PW-3/A), wherein he specifically mentioned about the demand of bribe money by both the appellants. PW-3 proved the pre-raid proceedings and preparation of handing over memo (Ex. PW-3/B), annexure to handing over memo (Ex. PW-3/B), handing over of tape recorder memo (Ex. PW-3/D) and his signatures on the same. PW-3 further proved that trap, acceptance of illegal gratification of Rs. 20,000/- by the appellant Girwar Singh, and recovery of the same by the independent witnesses. PW-3 has also proved the post-raid proceedings/Recovery vide Ex. PW-3/E, transcript cum voice identification memo (Ex. PW-3/F), the transcription (Ex. PW-3/G), and the specimen voice recording memo (PW-3/H), and his signatures on the same. PW-3 has proved the transcription (Ex. PW-3/G) and also identified his and voice of the accused Girwar Singh. This fact is further corroborated by the testimony of Rajinder Singh (PW-1), his report is Ex. PW-1/A and Ex.PW- 1/B, wherein he gave opinion that the questioned voice in questioned cassette is that of Girwar Singh. He has proved the left hand wash of the accused and the carpet wash, which turned pink. PW-3 also proved the GC notes Ex. P-1 to P-40. He submits that the aspect of demand, acceptance and recovery of money has been proved from the statement of PW-3, and other circumstances which clearly pointing out the complicity of the appellants in the crime.
  3. Mr. Mann submits that PW-5 has admitted to his visits to the Sales tax office on two occasions and talk of some settlement. Though PW-5 has not supported the specific demand by the appellants, but the subsequent circumstances that the complainant met both the appellants who reiterated the demand and reduced the same from Rs. 40,000/- to Rs. 30,000/- support the case of the prosecution that demand/agreement to accept Rs. 30,000/- as bribe, and acceptance of Rs. 20,000/- by Girwar Singh was part of the conspiracy, and the amount was accepted by Girwar Singh himself and the appellant Lala Ram. Reliance is placed on D. Velayutham v. State Represented by Inspector of Police, Salem Town, Chennai, 2015 (12) SCC 348, wherein the Supreme Court has observed in para

“15. Though this Court has stressed the need and significance of phenolphthalein as a trap device in corruption cases, so as to allay doubts about the actual receiving of bribes by accused persons, there may be cases where there are multiple demanders in a common or conjoint bribe demand, and for whatsoever reason, only one receives the sum on their behalf, and is entrapped in consequence. Depending on strength of the remainder of evidence, in these cases, constructive receipt by co-accused persons is open to establishment by the prosecution, in order that those who intermediately obtain bribes be latched with equal culpability as their co-accused and entrapped receivers. This will, of course, discount those cases where the trap is successful only against one and not the other official, the latter having refused to accept the bribe tendered. In this case, the trap would have clearly failed against such an official, and there could be no question of the application of constructive receipt. If the receipt and handling of bribe money by Accused 2 so convincingly and inexorably points towards his custodianship of part of the same bribe amount on behalf of his superior officer, namely Accused 1, then Accused 1 cannot rely on mere non-handling/non-receipt of the bribe money, as his path to exculpation. This Court’s construal of anti-corruption cases is sensitive even to these byzantine methods of bribe-taking, and where an evader escapes a trap, constructive receipt has to be an alternate means of fastening criminal culpability.”

(Emphasis supplied)

  1. Learned counsel submits that Sachin Arora (PW-5), in his examination in chief, inter alia, stated:

“When I met the officer alongwith the papers who telephoned in our office, he refused to accept the paper saying that first of all some settlement has to be done by us and only then the papers will be accepted. I told that officer that only my boss could settle as he was the final authority. Thereafter I informed about the talks to my boss who told me that I should have asked about the terms of settlement. I again met that officer who directed me to send my boss and I conveyed the same to the boss. After 2-3 days my boss Sh. Rajpal Katyal directed me telephonically to come with files to Sales Tax Office. When i met Mr. Katyal in STO, I found one person accompanying him and we all the three went inside the office room of audit department where we met two-three persons.”

  1. He submits that Sachin Arora (PW-5) was not cross examined by the appellant on this aspect and, therefore, this portion of the statement can be relied upon by the prosecution. Thus, from the statement of Sachin Arora (PW-5), it stands corroborated that the officer refused to accept papers as some settlement has to be done and further that he accompanied the complainant (PW-3) & another person to the office room of the audit department.
  2. Learned counsel submits that no suggestion was put to the complainant (PW-3) in his cross examination that he did not visit the office of sales tax on 31.05.2002. Thus, it stands established that the complainant (PW-3) went to sales tax office.

 

  1. Mr. Mann submits that the shadow witness (PW-4) – who is the independent witness, has supported the case of the prosecution. Further, the complaint of the complainant (PW-3) has been supported by the statements of the independent shadow witness (PW-4), and the recovery witness (PW-

8), and also by the TLO (PW-14).

  1. With regard to the presence of phenolphthalein on his hands and the piece of carpet under which the bribe amount was found, learned counsel submits that appellant no. 1 did not explain this incriminating evidence against him in his statement under Section 313 Cr.P.C. When the appellant no. 1 was questioned vide Q. 31, regarding the hand wash turning pink in the colourless solution of sodium carbonate, in his statement recorded under section 313 Cr.P.C., he made bald denials that the pink washes have been falsely prepared to falsely implicate him. However, no explanation has come forth from appellant no. 1.
  2. Learned counsel submits that appellant no. 1 in his statement recorded under Section 313 Cr.P.C. stated that it is correct that he was the head of party no. 10 along with the co-accused i.e. appellant no. 2 and Amar Singh Rawat for the period 30.04.2002 to 27.05.2002. Thus, it proves that the appellants were in the audit team involved in the audit of the complainants firm.
  3. Learned counsel places reliance on Explanation (d) to Section 7, PC Act to submit that it is not necessary that the public servant should actually do, or should be capable of doing the act for which bribe may be demanded.
  4. Mr. Mann submits that K.S. Chabra (PW-2), who was the Assistant Chemical Examiner, CFSL in his examination in chief stated that “On chemical analysis all the exhibits gave positive tests for phenolphthalein and sodium carbonate”. Further, the CFSL report (Ex. PW-2/A) tested positive for the presence of phenolphthalein and sodium carbonate. Under section 293, Cr.P.C. the report of the chemical/ Assistant chemical examiner is good evidence.
  5. On the aspect of sanction, learned counsel submits that the appellants have not shown what failure of justice has taken place, even if it is assumed that sanction granted to the appellant is irregular. In this regard, reliance is placed on C.S. Krishnamurthy v. State of Karnataka, 2005 (4) SCC 81.
  6. Learned counsel submits that with regard to the transcript (Ex. PW- 3/G), section 65B, Evidence Act is not applicable in this case to the memos. The transcripts have only been typed in the computer and have not come into existence on the computer like an email or digitally signed document. In this regard, reliance is placed on Anvar P.V. v. P.K. Basheer & Ors., (2014) 10 SCC 473.
  7. I have heard learned counsels, perused the record and considered the submissions and evidence recorded in the case.

Regarding the validity of Sanction:

  1. H.P. Dass, Chairman, State Administrative Tribunal, Orissa (PW-15), was the authority competent to remove appellant no. 1 and appellant no. 2 from service and he accorded the sanction for prosecution of both the accused for the alleged offence. Learned counsels for the appellants contended that there was no application of mind by the sanctioning authority (PW-15) while according the sanction.
  2. Section 19(3), PC Act reads as follows:

“(3) Notwithstanding anything contained in the Cr.P.C., 1973,-

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.”

  1. Thus, there must a failure of justice caused to the accused due to the irregularity in the sanction order. The Sanctioning Authority (PW-15) has specifically stated in his deposition that after carefully examining the material on record including documents and statement of witnesses under Section 161 Cr.P.C, he has accorded sanction for the prosecution of the appellants. In C.S. Krishnamurthy (supra), the Supreme Court held as follows:

“9. Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself, then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No. 40 and has deposed about his application of mind and after going through the report of the Superintendent of Police, C.B.I. and after discussing the matter with his legal department, he accorded sanction, it is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned single Judge of the High Court is justified.”

(Emphasis Supplied)

  1. The Sanctioning Authority (PW-15) has denied in his cross examination that he granted sanction for prosecution mechanically without application of mind, or without knowing the true facts of the case. Further, with regard to the bribe amount being mentioned as Rs. 30,000/-, the sanctioning authority (PW-15) has stated that “The facts mentioned in the Sanction Orders were noted from the file maintained in the office.” The sanction order mentions the demand for bribe of Rs. 30,000/-, as the demand by the appellant no. 1 was for the aforesaid amount. The complainant (PW-

3) has stated in his examination in chief that he informed the appellants that he could only arrange Rs. 20,000/- and the balance amount would be paid later on. Thus, the sanctioning authority (PW-15) had correctly mentioned in his sanction order that an amount of Rs. 30,000/- had been demanded from the complainant (PW-3), as the appellants on 31.05.2002 agreed to accept that amount.

  1. Further, it is settled law that the irregularity in granting sanction would be of significance if there was failure of justice as a consequence of it (See Paul Varghese v. State of Kerala & Anr., (2007) 14 SCC 783). In the present case, the appellant has failed to show that there was failure of justice due to grant of sanction by H.P. Dass (PW-15).
  2. In view of the above discussion, the submission of the appellant that the sanctioning authority did not apply his mind in according sanction is rejected.

On Merits:

  1. On the aspect of demand, the complainant (PW-3) in his examination is chief, inter alia, stated that:

“On 31.05.2002, I personally met both the accused, who are present in the court today (Correctly identified). I showed my inability to pay Rs.40,000/- and on my request they reduced the amount to Rs.30,000/- and further told that this could not be reduced. I was directed to pay the settled amount of Rs.30,000/- on 3.6.2002. I asked the accused persons if I could not arrange the amount then I was told that whatever amount I could arrange, the same should be paid.”

  1. In his cross examination, he stated that:

“First I visited room No. 902 on 31.5.2002 and at that time there was sitting arrangement for four officials and three were present out of them two officers were present on their seat and one person sitting opposite them on visitor’s seat and two seats of officials were vacant. I did not ask for Lala Ram in room No.902 and I asked for Girwar Singh only. I talked to Girwar Singh only.”

  1. The statement of the complainant (PW-3) establishes that a demand was made for the bribe money for some settlement. The complainant was given the information of demand by his accountant Sachin Arora (PW-5) since the accountant was the first person to whom the initial demand was made. Sachin Arora (PW-5) was declared a hostile witness during the trial. He denied the demand made by the appellants. However, the examination in chief of Sachin Arora (PW-5) is relevant, as it corroborates the version of the complainant (PW-3) and facts in the complaint (Ex. PW-3/A). In his examination in chief, he stated that he went to the sales tax office and met an officer, along with the papers. The officer refused to accept the papers stating that first, a settlement has to be done and then the papers will be accepted. He informed the complainant (PW-3) regarding the conversation with the officer. He (i.e. PW-5) again met the officer, who directed him to send his boss, i.e. the complainant (PW-3). He conveyed this to the complainant (PW-3). He also stated that on the day of raid proceedings, the complainant (PW-3) was accompanied by another person and then they went inside the office.
  2. In Koli Lakhmanbhai Chanabhai v. State of Gujarat, AIR 2000 SC 210, Sat Paul v. Delhi Administration, AIR 1976 SC 294 and Shyamlal Ghosh v. State of West Bengal, AIR 2012 SC 3539, the Supreme Court has held that the testimony of a hostile witness is not liable to be wholly rejected, and can be relied upon to the extent that it supports the version of the prosecution. It was further held that conviction can be based on such a testimony, if corroborated by other reliable evidence. Therefore, testimony of Sachin Arora (PW-5) cannot be wholly rejected, and the same is relevant where it corroborates with the testimony of other witnesses.
  3. Further, the statement of the complainant (PW-3) is consistent with the complaint (Ex. PW-3/A) made to the CBI. The relevant portion of complaint (Ex. PW-3/A) recorded is as follows:

“on 31/5/2002 i.e. next day I personally visited sales tax office to verify the facts and in Room No 902 I met Sh. Girwar Singh (Sr Account officer) and Sh. Lala Ram (Assistant Account officer) in the afternoon and enquired about the case of our firm. Both of them informed that the matter has been explained to my Accountant the previous day and Sh. Girwar Singh told that the amount to settle the things has also been already been intimated to Sachin Arora. I expressed my inability to pay such a huge amount on which Sh. Girwar Singh reduced the same to Rs. 30,000/- by stating that the amount cannot be reduced further as the same has to be shared by other members of his team. He asked me to pay the bribe amount by Monday i.e. 3/6/2002.”

  1. Thus, it stands established that the complainant (PW-3) was called to the sales tax office regarding some settlement. The demand for illegal gratification was made by the appellants to settle the matter against the complainant (PW-3). The stand of the complainant (PW-3) is consistent and natural in his complaint and as a witness in court. His stand even in cross examination stood unimpeached. The submission of the learned senior counsel that there is a contradiction qua the presence of appellant no.2 at the time of demand also does not hold ground. The statements of PW3, extracted in paragraphs 13 and 14 hereinabove relate to the events of different dates. Whereas the testimony extracted in paragraph 13 relates to the event of 31.05.2002, that recorded in paragraph 14 relates to the events of 03.06.2002.
  2. Learned senior counsel for appellant no.1 placed reliance on Rakesh Kapoor (supra), wherein the Supreme Court while relying on Banarasi Dass (supra) held that in the absence of proof with respect to the demand, the accused cannot be convicted and is entitled to a benefit of doubt. In Ashish Kumar Dubey (supra), this Court held that there was insufficient evidence to establish demand and acceptance by the accused. The testimony of the complainant witness was held to be unreliable and in the absence of any other evidence, the testimony of the official witness did not inspire confidence in the version put up by the prosecution. Thus, the Court held that demand and acceptance were not proved. In the present case, the complainant (PW-3) had given a reliable testimony, supported by the complaint (Ex. PW-3/A). The complainant has not been shown to be an interested witness-such that he had any specific interest in falsely implicating the appellants. The appellants do not claim to have known, or had any past dealings with the appellant. The reason given by appellant No. 1 in his statement recorded under Section 313 Cr. P.C. is not convincing If not the appellants, some other officer would have examined the complainants casein audit. Thus, merely by getting the appellants entrapped, the complainant could not have avoided the consequences of his sales tax record not being complete. The acceptance of the bribe has been corroborated by the other prosecution witnesses, including the shadow witness (PW-4), recovery witness (PW-8) and the TLO (PW-14). Their testimonies have been extracted, insofar as they are relevant, in a later part of the judgment. Therefore, Ashish Kumar Dubey (supra) and the aforementioned cases are of no help to the appellants.
  3. In B. Jayaraj (supra), the complainant did not support the case of the prosecution and there was no other witness to prove the demand of the bribe. The Supreme Court held that in the absence of evidence to establish demand, a mere recovery cannot form the basis of conviction under Sections 7 and 13(1)(d)(i) and (ii) of the Act. The facts in B. Jayaraj (supra) are different to the present case, since the complainant (PW-3) has supported the case of the prosecution. B. Jayaraj (supra) has no application to the present case.
  4. Reliance placed on Madan Mohan Lal Verma (supra) by the appellants also does not advance their case. In the present case, the prosecution had not sought to rely only on the testimony of the complainant (PW-3). Sachin Arora (PW-5) deposed that he had met the appellants before the trap was laid. The shadow witness (PW-4) has also supported the version of the complainant with respect to the acceptance of the bribe. Moreover, in State of U.P. v. Zakaullah, (1998) SCC (Crl.) 456, the Supreme Court has observed that the evidence of a complainant requires greater scrutiny, but it cannot be rejected as he is aggrieved by the accused.
  5. Banarasi Dass (supra), relied on by the learned senior counsel for appellant no.1, was a case where the demand was made by a Patwari to the complainant and a driver accompanying the complainant. In the said case, during the trap, the GC notes were kept on the table when the recovery witnesses reached the spot. Both the complainant and the driver (shadow witness) were declared hostile. The police and administrative official (recovery witnesses) were not present when demand and acceptance took place and their evidence to that effect was hearsay. The Supreme Court held that since the recovery witnesses were not eyewitnesses to the demand and acceptance, in absence of any evidence of demand and acceptance, the accused-appellant cannot be convicted. It was further held that demand and acceptance is a sine qua non for the conviction of offences under Section 5 of the old PC Act (Section 7 of the new Act). It is pertinent to note that in Banarasi Dass (supra), although the complainant did support the case of the prosecution to some extent, she was declared hostile because she virtually denied the essential ingredients to bring home the guilt of the accused.
  6. The facts of the present case are different to the facts of Banarasi Dass (supra) and the same provides no help to the appellants. In the present case, the complainant (PW-3) supported the case of the prosecution with respect to the demand and acceptance of bribe, unlike the complainant in Banarasi Dass (supra). The shadow witness (PW-4) also supported the prosecution while stating that bribe of Rs.20,000/- was given to the appellant no.1. Their testimonies corroborate the facts mentioned in the recovery memo (Ex. PW-3/E).
  7. Moreover, Sachin Arora (PW-5), in his cross examination stated that:

“It is correct that on 3.6.2002 I was directed by Mr. Katyal to reach at STO in room No.902. It is correct that when I reached the STO, I found Mr. Katyal alongwith one person and the officers of audit team whom I used to meet earlier.”

(Emphasis supplied)

  1. In M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351, it has been observed that there is no rule that evidence of every complainant in a bribery case should be corroborated in all material particulars, otherwise it cannot be acted upon. In the present case, the complainant had evidently acted upon the information received from his accountant (PW-5) and visited the STO to meet the appellants. The same stands corroborated with the complainant’s testimony and the complaint (Ex. PW-3/A). Sachin Arora (PW-5) had deposed that he had met the audit officers before 03.06.2002, i.e. when the trap was laid. Therefore, statements of the accountant (PW-5), the complainant (PW-3) and the complaint (Ex. PW-3/A) stand corroborated on all material particulars.
  2. The prosecution/CBI relied on the sound recording of the trap proceedings to advance its case in establishing the acceptance of the bribe money. The learned Trail Court has also relied upon the same. Therefore, it becomes essential to discuss the admissibility of the evidence of sound recording made during the trap proceedings.

 

  1. Section 3 of the Indian Evidence Act, 1872 makes every electronic record produced in evidence for the inspection to the court, a documentary evidence. When a document is an ‘electronic record’ within the definition of Section 2(1)(t) of the Information Technology Act, 2000 (hereinafter referred as ‘IT Act’), it must be filed along with a certificate in compliance of the conditions mentioned in Section 65B of the Evidence Act. However, if the original electronic record is produced in the court, the compliance of Section 65B is not mandatory.
  2. It is first to be ascertained, whether the transcription (Ex. PW-3/G) falls within the scope of Section 2(1)(t) of the IT Act. ‘Electronic record’ is defined as:

“(t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”

(Emphasis supplied)

  1. Section 2(1)(r) of the IT Act, defines ‘electronic form’ as:

“(r) “electronic form” with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device”

(Emphasis supplied)

  1. Section 2(1)(i) of the IT Act, defines a ‘computer’ as:

“(i) “computer” means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network”

(Emphasis supplied)

  1. The digital recorder records the sound in an ‘electronic form’. The transcription cum voice identification memo (Ex. PW-3/F) was made on a ‘computer’ by Insp. Amrik Raj (PW-13) by hearing the sound recording from the investigation copy of the cassette. He stated that “I have prepared Ext. PW3/F on computer and not by my hand. I know how to operate the computer.” Therefore, the ‘computer’ on which the transcription cum voice identification memo (Ex. PW-3/F), as well as the digital recorder on which the sound was recorded, come under the definition of ‘computer’, and the transcription (Ex. PW-3/G) as well as the sound recording in the digital recorder is an ‘electronic record’ under the provisions of IT Act and the Evidence Act. Thus, unless the same digital recorder, on which the sound was recorded on 03.06.2002, is produced in the Court, the transcription (Ex.

PW-3/G) would only be admissible with the certificate in compliance of Section 65B of the Evidence Act. In Anvar P.V. (supra), the Supreme Court has observed that the Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with.

  1. It is settled law that secondary evidence is only admissible in Court when the person who prepared the copy of the original document, must have seen the original document himself. (See Bank of Baroda, Bombay v. Shree Moti Industries, Bombay and others, AIR 2008 Bom 201). A perusal of the record reveals that Insp. Amrik Raj (PW-13) had not heard the original recording from the digital recorder.
  2. Relevant portion of the transcription cum voice identification memo (Ex. PW-3/F) reads as follows:

“The investigation copy of the cassette recorded on 3.6.2002 of the conversation between Sh. Rajpal Katyal above named and Sh. Girwar Singh, Sr. Audit Officer, O/o A.G. Audit Delhi the accused, has been inserted in the cassette recorder/player and played … … … .

Thereafter, on their confirmation that this cassette contains the same conversation which had taken place on 3.6.2002, the above said cassette was again played and transcription of the conversation recorded in the cassette on 3.6.2002 has been prepared alongwith the name of the speakers as identified.”

(Emphasis supplied)

  1. Insp. Amrik Raj (PW-13) in examination in chief stated:

“I also prepared the transcription of question conversation between the complainant Rajpal Katiyal and accused Girwar Singh by playing and hearing audio cassette recorded at the spot. Transcription was prepared in the presence of witnesses Sh. Mann Singh and Sh. SS Rana.”

  1. In his cross-examination, he deposed:

“The cassette was already sealed from which we prepared the transcription after its opening. We did not inform the concerned court about the opening of the seal and we also did not take permission of the concerned court to open the seal of the cassette before preparing the transcription. … … … . I did not inform to the CFSL Authority regarding the breaking of the seal of the cassette from which I prepared the transcription.”

  1. In his re-examination, he stated:

“I state that the transcription was prepared after listening the investigation copy of the cassette recorded on 3.6.2002 of the conversation between Sh. Rajpal Katiyal and Girwar Singh. This Memo was prepared and signed by me. The investigation copy of the cassette was not in sealed condition. I was a little bit confused as I had thought that the Ld. defence Counsel is asking about the cassette used for recording the specimen voice. I wanted to say that the question was about the seal on the cassette which is manufacturer seal on the cassette.”

(Emphasis supplied)

  1. Therefore, it is clear that Insp. Amrik Raj (PW-13) made the transcription from the investigation cassette that was made on 03.06.2002.

Consequently, the transcription (Ex. PW-3/G) is inadmissible in evidence and the same cannot be looked into.

  1. Insp. Amrik Raj (PW-13), Insp. Umesh Vashishth (PW-14) and Mann Singh (PW-4) deposed on the same lines with respect to the copying of the recording and sealing of the cassette. SI Prem Nath, who carried out the copying of the cassettes, was not made witness by the prosecution. Insp. Umesh Vashishth (PW-14), in his examination in chief stated that:

“The said recorded conversation was transferred into two audio cassettes with the help of an instrument. One cassette was sealed after wrapping it into a cloth wrapper, with CBI seal and the same was marked as “A”. … … … . Another copy of cassette was kept unsealed for the investigation purpose.”

  1. In his cross-examination, he deposed that:

“The conversation which was recorded in the Samsung Digital Recorder was transferred into two separate audio cassettes, out of which one was sealed and the other audio cassette was not sealed. After transfer of the conversation from Digital Recorder into a cassette, the conversation in Digital Recorder was deleted. Prem Nath Sub Inspector was in the trap party. After taking the Digital Recorder from the complainant, it was heard and then Sub Inspector Prem Nath transferred the conversation into a cassette. Probably this was not written in the Recovery Memo that Sub Inspector Prem Nath transferred the conversation into a cassette. I did not record the statement of SI Prem Nath to the effect that he transferred the conversation into a cassette from Digital Recorder.”

(Emphasis supplied)

  1. It appears that SI Prem Nath made two copies from the sound recorded in the digital recorder on two blank cassettes. One of the cassettes was sealed and marked ‘A’ and the other was kept unsealed for investigation purposes. The original recording from the digital recording was deleted after copies were made on two separate blank cassettes. The sealed cassette marked ‘A’ was then sent to CFSL for voice analysis of the appellants and the complainant (PW-3).
  2. Insp. Amrik Raj (PW-13) stated that:

“I do not remember at this stage if I compared investigation copy of the cassette with the original cassette. I also do not remember if I mentioned such comparison in any Memo or document. Now the witness is shown the file and after going through the same he states that he did not compare the original cassette with the investigation copy of the cassette. … … … . We did not file the investigation copy of the cassette on the record along with the charge-sheet”.

(Emphasis supplied) Therefore, neither the CFSL report on sound analysis nor the transcription (Ex.PW-3/G) is based on the original recording made on 03.06.2002. The testimony of the expert witness to this effect is also unreliable. It is irrelevant that the parcels received by Rajinder Singh (PW-

1) had the seals intact. In the present circumstances, merely finding the seals in proper condition does not make any difference, since it is an admitted position that the copy of the sound recording was sent and not the original. Thus, it would need examination whether the prosecution has been able to establish the guilt of the appellants dehors the voice recordings.

  1. With regard to acceptance of the bribe amount, the complainant (PW-

3) in his examination in chief, inter alia, stated that:

“After brief introduction, I told the accused persons that I could arrange only Rs. 20,000/- and the balance amount would be paid by Sachin Arora later on to them. Mr. Mann Singh accompanied me as it was decided in CBI office that he will remain with me. We gave the amount to Girwar Singh. ‘We’ means ‘I’ handed over the tainted amount of Rs. 20,000/- to Girwar Singh.”

(Emphasis supplied)

  1. The recovery memo (Ex.PW-3/E) reads as follows:

“After sometime the complainant extended the bribe amount towards Shri Girwar Singh and told him that this time he could arrange only Rs. 20,000/- and the remaining bribe amount as demanded will be delivered later through the persons accompanying. At this the accused accepted the bribe amount from his right hand and after counting with both the hands kept the same in his left hand and after that he went out to give the signal. The complainant also confirmed the same version of shadow witness……”

(Emphasis supplied)

  1. The complainant (PW-3) as well as the shadow witness (PW-4) correctly identified appellant no. 1 in court. Shadow witness (PW-4) stated that:

“… … . Thereafter I came out and gave the pre-appointed signal. On receiving the signal CBI team entered the room and I also followed them.Enquiries were made by the CBI officials from me as to who had accepted the money and I told that Girwar Singh had accepted the bribe amount from Mr. Katyal.”

(Emphasis supplied)

  1. In his cross examination, he stated that:

“It is correct that while extending the bribe amount towards Girwar Singh, the complainant told Girwar Singh that he could arrange only Rs.20,000/- and remaining amount will be delivered soon through the person accompanying him. It is incorrect to suggest that after accepting the (sic.) bribe amount, accused Girwar Singh counted the same with his both hands and after that kept the same in his left hand. … … … . It is incorrect to suggest that complainant Mr. Katyal did not offer any money to accused No.1. It is also incorrect to suggest that accused No.1 did not accept any amount or money from the complainant.”

(Emphasis supplied)

  1. It is pertinent to note that although shadow witness (PW-4) resiled from his earlier stand with respect to the counting of the bribe (this apparent contradiction in the statement of PW4 is dealt with a little later), he maintained that bribe of Rs.20,000/- was accepted by the appellant no.1. The shadow witness (PW-4) corroborated the recovery memo (Ex. PW-3/E) on all material aspects and deposed that the complainant (PW-3) and the appellant no. 1 started talking about some case. Thereafter, the complainant (PW-3) gave the tainted GC notes to the appellant no. 1. This establishes that the appellant no. 1 accepted the bribe amount.
  2. S.S. Rana (PW-8) narrated the entire trap proceedings. Although, he did not see the acceptance of bribe amount himself but he accompanied the CBI officers when the shadow witness (PW-4) gave the pre-determined signal of acceptance. S.S. Rana (PW-8) in his examination in chief stated that:

“Inspector Vashishth inquired from Sh. Raj Pal Katyal and Sh. Mann Singh about the transaction of bribe money and the conversation which took place between Sh. Raj Pal Katyal and the accused. Sh. Raj Pal Katyal and Sh. Mann Singh both disclosed to Inspector Vashishth that accused Girwar Singh had accepted the bribe money in his right hand and thereafter he counted the same with both hands. Sh. Raj Pal also disclosed that after accepting the bribe money, accused Girwar Singh had bent towards one side while remained sitting on his chair.”

  1. Therefore, it is safe to conclude that the statement of S.S. Rana (PW-

8) also corroborate to the chain of events that took place in room no.902 on 03.06.2002. The chain of events with respect to the raiding team entering room no. 902 was also corroborated by the testimony of Umesh Vashishth, TLO (PW-14). He stated that:

“… … … .Immediately on receiving the signal, I along with other trap team members including other witness Sh. Rana rushed inside the room No.902 and found that complainant along with his Accountant Sachin Arora and the shadow witness Sh. Man were sitting and in front of them accused Girwar Singh and Lala Ram were sitting. … … .”

  1. The acceptance of bribe is further established through the hand wash of both hands of appellant no.1. The hand wash of both the hands of the appellant no. 1 was taken in sodium carbonate solution which turned pink. Thereafter, the portion of carpet from where the tainted amount was recovered was also washed in the solution of sodium carbonate which turned pink. The bottles with the solution of sodium carbonate were sealed at the spot and sent to CFSL for analysis.
  2. The recovery of the bribe is also established in the present case. During the pre-raid proceedings, GC notes to the sum of Rs.20,000/- were produced by the complainant (PW-3) and using the same GC notes a demonstration was given to the complainant, shadow witness (PW-4) and recovery witness (PW-8). The serial numbers of the GC notes (Ex. P1/1 to

40), which were to be used in the trap proceedings were noted in Annexure A of the handing over memo (Ex. PW-3/C). TLO (PW-14), after entering the room with the rest of the raiding team upon receiving a signal from PW- 4, inquired the shadow witness (PW-4) about the transaction of bribe. Shadow witness (PW-4), in his examination in chief stated that the complainant and appellant no.1 discussed the matter and thereafter, the complainant handed over the bribe amount to the appellant no.1. The TLO (PW-14) deposed that he challenged appellant no.1 of demanding and accepting the bribe of Rs.20,000/- from the complainant, but he remained silent. The complainant disclosed that after taking the bribe amount, while he was giving a missed call to the pre-fed number, appellant no.1 leaned towards his left and sat back straight again. TLO (PW-14) inquired from appellant no.1 with regard to the concealment of the bribe but he again remained silent.

  1. Thereafter, search of his table drawer and of other places was conducted. During the search, Mann Singh (PW-4) informed that the bribe money was kept under the carpet on the floor of the office room, towards left side of the accused. S.S. Rana (PW-8) was then asked to recover the GC notes. They were then directed to tally the numbers on GC notes with the ones noted in Annexure A of handing over memo (Ex. PW-3/C).
  2. Shadow witness (PW-4), in his cross examination stated that:

“I have seen the GC Notes Ex.P1/1 to 40 and after tallying their numbers I can say that these are the same GC notes which were used as (sic.) trap money and recovered from under the carpet.”

  1. The recovery witness (PW-8), in his examination in chief stated that:

“I picked up the bundle of Rs.20,000/- and compared its numbers with the numbers written in the paper prepared in CBI office earlier. The numbers of GC Notes were tallied with the numbers written in the paper Ex, PW-3/C. … … … . I have seen GC Notes Ex.P1/1 to Ex.P1/40 and after tallied their numbers, I can say that these are the same GC notes which I recovered.”

  1. TLO (PW-14) deposed that hand washes of hands of appellant no.1 and the carpet were taken, and the colourless solution turned pink. The same was transferred to glass bottles and sent to the CFSL for analysis. The CFSL report (Ex. PW-2/A) reads as follows:

“Results of Analysis:

The Exhibit RHW, LHW and CW gave positive tests for Phenolphthalein and Sodium carbonate.”

  1. Therefore, I do not find merit in the submission of the learned senior counsel for appellant no.1 that since the bribe amount was not recovered from the person of appellant no.1, it cannot be construed that he was in possession of the same. The aforesaid facts complete the chain of events from trap proceedings to recovery proceedings. The said chain of events have been corroborated by the complainant (PW-3), shadow witness (PW-

4), recovery witness (PW-8) as well as the TLO (PW-14). The recovery memo (Ex. PW-3/E) also stands corroborated by their testimony. I also do not find merit in the submission that there are contradictions in the testimony of the complainant (PW-3). It is a settled position that minor discrepancies in the testimony of the witnesses are bound to occur and are natural, when the statements are recorded after a significant period of time. Minor discrepancies that do not strike to the root of the case, can be ignored.

  1. As far as the submission that there is contradiction in the recovery memo (Ex. PW-3/E) and the statements of the complainant (PW-3) as well as the shadow witness (PW-4) is concerned, once again I do not find any substance in the same. The complainant (PW-3), although in the recovery memo (Ex. PW-3/E) has stated that when he was giving the signal on the cell phone, he saw the appellant no. 1 lean towards his left side to conceal the bribe money, he has nowhere stated in his examination before the court that he saw the concealment taking place. There is a possibility of witnesses’ memory failing owing to such a long lapse of time in conducting the examination of the complainant (PW-3). The recovery memo (PW-3/E) was recorded on 03.06.2002, whereas his examination before the Court took place on 01.08.2005, i.e. more than three years later.
  2. Similarly, the shadow witness (PW-4), in his cross examination, stated that there is a possibility that on asking the complainant (PW-3), he informed the CBI officials that while he was busy giving the signal to CBI through his cell phone (pre-determined signal), he saw the appellant no.1 lean towards his left side and conceal the bribe amount. The shadow witness was cross examined on 18.10.2005 i.e. more than 3 years after the recording of the recovery memo. However, when it was put to the shadow witness (PW-4) in the cross examination, being a natural witness, he stated that it was indeed possible that the complainant saw appellant no. 1 lean for concealing the bribe money and informed the same to the CBI officials.
  3. Mr. Mittal has relied on the statement of recovery witness (PW-8) to submit that there exists a doubt with respect to the presence of phenolphthalein powder, since the said witness stated to have seen ‘lightest pink colour solution’. I find no merit in this submission since the perception of colour is subjective in nature. It would be farfetched to rely on such a statement to hold that phenolphthalein power may not have been present. The recovery witness (PW-8) is not a technical person to depose on the same. Moreover, the CFSL report (Ex. PW-2/A) clearly indicates the presence of phenolphthalein powder and the said report has not been challenged by producing any cogent contradictory evidence.
  4. Learned senior counsel had placed reliance on G.V. Nanjundiah (supra) and Pyare Lal (supra) to submit that the evidence of a stock witness cannot be relied upon. However, the same is of no help to the appellants. In the present case, the appellants have failed to point out as to how the independent witnesses (i.e. PW-4 and PW-8), have any vested interest in the outcome of the case or any reason for which they would implicate the appellants. Merely, because Mann Singh (PW-4) was witness to other CBI cases does not make him a stock witness. In fact, perusal of the statement of Mann Singh (PW-4) reveals that he had resiled from his earlier statement at some occasions. Had he been a stock witness, he would have supported the case of prosecution in its entirety. In Zakaullah (supra), the Supreme Court has observed that:

“9. It is in evidence that PW6 was examined as a witness in a case at Moradabad in which he himself was the complainant against a doctor who demanded bribe from him. He also admitted that he was a witness in two other cases though he was not yet examined in those cases. Would such antecedents render him a non-independent witness? Similarly, the mere fact that PW7 was the driver of the vehicle in which the officials went to the place, resulted in his losing the status as “independent witness.”

  1. The necessity for “independent witness” in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man’s independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever. (Hazari Lal v. Delhi Administration, (1980) 2 SCC 390″

(Emphasis supplied)

  1. Therefore, merely because the witness was involved in other cases or had prior acquaintance with the police officers, would not result in the loss of his status as an independent witness. The appellants have also failed to show the dependability of PW-4 or PW-8 on the CBI officials, involved in the present case. Both PW-4 and PW-8 were government employees. They enjoyed security of their status as government servants. There was no reason for them to implicate the appellants falsely. Moreover, the present case is not based solely upon only the testimony of PW-4 and PW8. The testimony of the complainant (PW-3) and TLO (PW-14) stand corroborated with that of PW-4 and PW8. From the aforesaid discussion, it is clear that the bribe amount of Rs.20,000/- was recovered from appellant no.1.
  2. I do not find merit in the submission of the learned senior counsel that the presence of Sachin Arora (PW-5) at the time of trap proceedings can be doubted. Sachin Arora (PW-5) had himself admitted that when he reached STO, he saw the complainant with another person (shadow witness). He was also present in room no.902 at the relevant time and admitted to sign the recovery memo (Ex. PW-3/E).

 

  1. Learned senior counsel for appellant no.1 placed reliance on Suraj Mal (supra), wherein the three witnesses who witnessed the taking of bribe were declared hostile. In this case, the trial court had held the evidence of the prosecution to be unreliable, and acquitted one of the accused, while convicting the appellant. It was in these circumstances that the appellant in the said case was acquitted. The facts of M.K. Harshan (supra) are different from the facts of the present case. The testimony of the witnesses in the said case was highly doubtful, and could not be said to have established the demand and acceptance. Therefore, both the cases are of no help to the appellants, as they turn on their own facts.
  2. Section 20 reads as follows:

“20. Presumption where public servant accepts gratification other than legal remuneration.

(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be Inadequate.

(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.”

  1. In Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571, it was observed that:

“12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted “as motive or reward” for doing or forbearing to do any official act. So the word “gratification” need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like “gratification or any valuable thing”. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word “gratification” must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.”

  1. Therefore, once it is established by the prosecution that the acceptance was “gratification”, Section 20 raises a rebuttable presumption that the public servant accepted such gratification for a ‘motive or reward’. The onus to prove shifts on the accused to prove that he did not accept the illegal gratification. However, if the accused fails to disprove the said presumption, then the Court may find him guilty of the offence under the Act. In the present case, the prosecution clearly established the demand as well as the acceptance of money by the appellants. It was then for the appellants to discharge the onus cast upon them by Section 20. However, they have failed to discharge the same by leading cogent evidence. In Girish Babu (supra), there was no reliable evidence of demand or acceptance made by the appellant, and the Court while relying on Suraj Mal (supra) held that mere recovery of the bribe would not entail a conviction under Section 7 of the Act. Suraj Mal (supra), M.K. Harshan (supra) and Girish Babu (supra) thus, have no application in the facts of this case.

 

  1. Mr. Mittal submits that the file pertaining to the firm of the complainant (PW-3) was not found in the possession of the appellants. Further, he submits that in view of the contradiction in the statements of the complainant (PW-3), first that the ST-I form was deficient in the file and later, that the ST-I form was not issued at all, there was no motive for demanding illegal gratification by the appellants. He relied on the testimony of DW-1 to submit that there existed no reason for the appellant no.1 to demand illegal gratification since the file of complainant’s firm was not in the possession of appellant no.1.
  2. The production cum seizure memo (Ex. PW-4/H) clearly indicates that the file of the complainant’s firm was seized on 03.06.2002 by TLO (PW-14) from Amar Singh Rawat through Gurubachan Lal, Senior Audit Officer (PW-11). The same is mentioned in the recovery memo (Ex. PW- 3/E). Gurubachan Lal (PW-11) in examination in chief stated that:

“Record which was seized by CBI team, was pertaining to Audit Party No.10. Audit No.10 was consisting of Girwar Singh, Senior Audit Officer, Lala Ram, Assistant Audit Officer and A.S. Rawat, Senior Auditor. Girwar Singh and Lala Ram both accused are present in the Court (correctly identified).”

  1. Therefore, I find no merit in the submission of the learned senior counsel that the file was not in possession of the appellants. PW-11 clearly deposed that the file pertained to Audit No.10 and that Audit no.10 comprised of the appellants in the present case. Even if the appellants were not in a position to help the complainant, it is meaningless since explanation

 

(d) to Section 7 of the Act provides that: “(d) “A motive or reward for doing.” A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.”

  1. In the present case, apart from the offence under Sections 13(1)(d) and 7, the appellants were charged and convicted under Section 120B of the IPC.
  2. Section 120A, IPC defines criminal conspiracy to mean – when two or more persons agree to do, or cause to be done (a) an illegal act, or (b) an act, which not illegal by illegal means, such an agreement will be termed as a criminal conspiracy. In K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631, the Supreme Court held as follows:

“11. … … … … … In Major E.G. Barsay v. State of Bombay, 1961 CriLJ 828, Subba Rao J., speaking for the Court has said:

“The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.”

  1. In State v. Nalini and Ors., 1999 CriLJ 3124 it was observed by S.S.M. Quadri J. at paragraph 677:

“In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.”

  1. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well-known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.”

(Emphasis supplied)

  1. Thus, a criminal conspiracy comes into being when two or more persons come to an agreement to do an illegal act. It is not necessary that all the persons in the conspiracy should know everything, or that each conspirator should join the conspiracy at the same time. The conspiracy continues till the agreement is terminated either on its completion, or otherwise. The existence of a conspiracy and its objective are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. The Supreme Court in Kehar Singh and Ors. v.

State (Delhi Administration), (1988) 3 SCC 609, observed that a conspiracy is may be hatched in secrecy, and it may be difficult to adduce direct evidence in such cases, and the prosecution will more often rely on circumstantial evidence. The Supreme Court in State v. Nalini, (1999) 5 SCC 253, observed that all conspirators need not take active part in the conspiracy. The Supreme Court observed:

“583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles.

x x x x x x x x

  1. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.”
  2. According to Section 10 of Evidence Act, once a conspiracy is established by the prosecution, then any act of a co-conspirator, which is in furtherance of the conspiracy, will become the act of the other co- conspirators. Section 10 reads as follows:

 

“10. Things said or done by conspirator in reference to common design.–Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. ”

  1. The Supreme Court in Central Bureau of Investigation v. V.C. Shukla and Ors., (1998) 3 SCC 410, held:

“40. … … .In dealing with this Section in Sardul Singh v. State of Bombay, 1957 CriLJ 1325, this court observed that it is recognised on well established authority that the principle underlining the reception of evidence of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency. Ordinarily, a person cannot be made responsible for the acts of others unless they have been instigated by him or done with his knowledge or consent. This section provides an exception to that rule, by laying down that an overt act committed by any one of the conspirators is sufficient, (on the general principles of agency) to make it the act of all. But then, the opening of words of the Section makes in abundantly clear that such concept of agency can be availed of, only, after the Court is satisfied that there is reasonable ground to believe that they have conspired to commit an offence or an actionable wrong. In other words, only when such a reasonable ground exists, anything said, done or written by any one of them in reference to their common intention thereafter is relevant against the others, not only for the propose of proving the existence of the conspiracy but also for proving that the other person was a party to it. In Bhagwan Swarup v. State of Maharashtra 1976 CriLJ 860, this court analysed the section as follows:-

“(1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it; and (5) it can only be used against a co-

conspirator and not in his favour.””

(Emphasis Supplied)

  1. Accordingly, the words spoken and act performed by any one of the conspirator will be relevant to prove the involvement of the other accused persons or co-conspirators in the conspiracy, provided the Court has reasonable ground to believe that a conspiracy exists. As far as conspiracy is concerned, although prosecution is liable to produce independent evidence as to existence of the conspiracy for Section 10 to operate, it need not prove the same beyond reasonable doubt (See Nalini (supra)). The provision itself states “… where there is reasonable ground to believe that two or more persons have conspired together to commit a crime….”.
  2. Reference may also be placed on Ram Narayan Popli v. Central Bureau of Investigation, (2003) 3 SCC 641, where the Supreme Court held as under:

 

“342. It would be appropriate to deal with the question of conspiracy. Section 120-B IPC is the provision which provides for punishment for criminal conspiracy. Definition of “criminal conspiracy” given in Section 120-A reads as follows:

“120-A. When two or more persons agree to do, or cause to be done,–

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.”

The elements of a criminal conspiracy have been stated to be:

(a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See: American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.

  1. No doubt, in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.”

(Emphasis supplied)

  1. As discussed above, the fact that the initial demand was made by appellant no.2 on PW-5 and later by both the appellants, on the complainant (PW-3) was a part of the ‘same transaction’. On a perusal of the evidence, it is clear that the complainant (PW-3) had acted on the information received by his accountant (PW-5) to himself visit the S.T.O. Thus, on 31.05.2002, he was himself a witness to the demand by the appellants, as they raised the demand on him. The accountant (PW-5) admittedly met with the appellants before the trap proceedings. Apart from the complainant (PW-3), the shadow witness (PW-4), recovery witness (PW-8) as well as the TLO (PW-

14) disclosed that appellant no.2 was present in room no.902 at the time of acceptance of the bribe. It is evident that both the appellants, under an agreement and understanding hatched a conspiracy to receive illegal gratification under a threat to raise tax demand against the firm of the complainant. Thus, the submission of learned counsel for appellant no.2 that no demand, acceptance and recovery qua appellant no.2 are established, is rejected. It has been held in K.R. Purushothaman (supra) that in most cases, conspiracy is seldom an open affair and same needs to be proved by the circumstantial evidence. In the present case, the conspiracy is clearly established by the chain of events taken note of hereinabove.

 

  1. Learned counsel for CBI placed reliance on D. Velayutham (supra) to submit that if the receipt and handing of the bribe amount by one accused convincingly and inexorably points towards his custodianship of part of the same bribe amount on behalf of the co-accused , then the co-accused cannot take a defence of non-handing of the bribe money. In such cases, the co- accused would be fastened with criminal culpability since the senior officer is in constructive receipt of the bribe. I find merit in this submission and the appellant no.2 cannot take the defence of non-receipt of the bribe amount. Appellant no.2’s involvement in the conspiracy to demand the bribe amount has been established beyond all reasonable doubt. The acceptance of the bribe amount by appellant No. 1 is a part of the criminal conspiracy of both the appellants to demand and accept bribe from the complainant.

 

  1. Thus, the demand of the bribe stands established by the testimonies of the complainant (PW-3), Sachin Arora (PW-5) and the complaint (PW-3/A). The acceptance and recovery of the bribe amount also stands established beyond any reasonable doubt by the testimonies of the complainant (PW-3), Mann Singh-shadow witness (PW-4), S.S. Rana-recovery witness (PW-8), Umesh Vashishth-TLO (PW-14), recovery memo (Ex. PW-3/E) and the report of CFSL (Ex. PW-2/A). Although, the accountant Sachin Arora (PW-

5) did not fully support the case of the prosecution and was declared hostile, he did disclose his acquaintance with the appellants prior to the trap.

Assessing the entire evidence on record, the only irresistible conclusion reached is that the appellants raised a demand for illegal gratification, and accepted the bribe amount of Rs. 20,000/-, which was recovered on 03.06.2002. Accordingly, the conviction of the accused is upheld. The order of sentence is also upheld.

  1. For all the aforesaid reasons, I find no merit in these appeals and the same are, accordingly, dismissed.

images (1)

In connection with the aforesaid subject, it is stated that, the number of the incidents pertaining to Cyber Crime has increased in today’s world. At present, each person uses internet, mobile and other gadgets relating to electronic media extensively and is having knowledge. Under such circumstances, it has come to the notice of the Additional Director General of the Police, C.I.D., Crime, Gandhinagar, Gujarat State that, when the victim approaches the Police Station to lodge complaint, the Police inform the victim that, the offence relates to Cyber Crime, we cannot do anything in it, you should contact to Cyber Cell, Gandhinagar / City Crime Cyber Cell and in many cases, the victim is not even heard.


 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (DIRECTION – TO LODGE

FIR/COMPLAINT) NO. 1410 of 2016

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IDRISHBHAI SAIFUDDINBHAI HATHI….Applicant(s)

Versus

STATE OF GUJARAT & 2….Respondent(s)

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Appearance:

MR MA SAIYAD, ADVOCATE for the Applicant(s) No. 1

MS BENAZIR M HAKIM, ADVOCATE for the Applicant(s) No. 1

PUBLIC PROSECUTOR for the Respondent(s) No. 1

==========================================================

CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

ORAL ORDER

  1. Petitioner approached this Court under Article 226 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure seeking lodgment of the complaint forthwith on the strength of his representation made to the P.I,Dholka police station on 23.2.2016.
  2. Brief facts are as follows:-

2.1 The petitioner is an agriculturist. He possesses savings bank account No.210910100002143 in Bank of HC-NIC Page 1 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER India at Pisawada Branch.

2.2 It is the say of the petitioner that on 16.2.2015 when he went to ATM,SBI, Bazar Branch to withdraw Rs.1000/-, the machine was not working properly. He managed to get the amount of Rs.1000/- after inserting the card twice or thrice with the help of some persons. It is his say that to his shock he realized that sum of Rs.50,000/- had been deposited from his account on 16.2.2016. Therefore, he rushed to his bank to find out the truth of the matter only to find another shock that the card, which he was carrying was not that of his but that of a third person. His card had been taken away by those who camouflaged to help him. He,therefore, had lodged a complaint of cheating by giving a representation to P.I.Dholka police station and as no FIR is lodged, the petitioner is before this Court seeking following reliefs:-

“9. In the aforementioned premises the petitioner most humbly prays before this Honourable Court that this Honourable Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari or any other appropriate writ, order or direction and there by:

HC-NIC Page 2 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER (A) THIS HONOURABLE COURT MAY BE PLEASED TO order and direct the respondent No.2 and 3 to consider the representations made by the petitioner and lodge the complaint (Annexure “A”) forthwith in the interest of justice.

(B) This Hon’ble Court May Be Pleased To Direct respondent Nos.2 and 3 to take strict action against the offenders in the interest of justice.

(C) This Hon’ble Court may be pleased to award the costs throughout.

(D) This Hon’ble Court may be pleased to grant such other and further relief’s as deemed fit and proper in the interest of justice.”

  1. Learned advocate Mr.M.A.Saiyed appearing for the petitioner has urged that this not only concerns the offence of fraud and cheating but also relates to cyber-crime. He has also placed in service, a communication shot by the Police Commissioner, Ahmedabad on 5.5.2012 to emphasize that every time there is question of cyber-crime, ordinarily no complaint is being registered.
  2. Learned Additional Public Prosecutor does not dispute that whenever the prima facie cognizable offence is made out, the concerned officer requires to lodge a complaint.
  3. Having thus heard learned advocates for both the HC-NIC Page 3 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER sides, firstly this Court needs to profitably reproduce the findings and directions issued by the Apex Court in the case of Lalita Kumari vs. Government of Uttar Pradesh and another reported in AIR 2014 SC 187.

“Conclusion/Directions:

111.In view of the aforesaid discussion, we hold:

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which HC-NIC Page 4 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER preliminary inquiry may be made are as under:

(a) Matrimonial disputes/ family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

  1. As can be noted from the representation made by the present petitioner addressed to P.I., Dholka police station reveals that after the incident of 16.2.2016 the complaint so far has not been lodged. It will be necessary to direct the concerned P.I. to look into the aspect and register the complaint without further loss of time when cognizable offence is made out. It is to be noted that the preliminary inquiry is HC-NIC Page 5 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER permissible only to the extent of finding out as to whether the cognizable offence gets revealed. While so doing it, he shall have to also bear in mind the communication of Police Commissioner, Ahmedabad City dated 5.5.2012, which is as follows:-

” The Office of the Police Commissioner, Shahibaug, Ahmedabad City.

Telephone No.25628783, 25627873, Email :- rdr-

ahd@gujarat.gov.in No.G/725/CP/2536/2012 Date :- 050.05.2012 Sub :- To take action immediately in connection with the application/representation given by the Applicant/Victim regarding the Cyber Crime.

Ref. :- Letter No. Cyber Cell/Alolika/Appl./78/12, dtd.01.05.2012 of The Additional Director General of Police, C.I.D., Crime and Railways, Gandhinagar, Gujarat State.

In connection with the aforesaid subject, it is stated that, the number of the incidents pertaining to Cyber Crime has increased in today’s world. At present, each person uses internet, mobile and other gadgets relating to electronic media extensively and is having knowledge. Under such circumstances, it has come to the notice of the Additional Director General of the Police, C.I.D., Crime, Gandhinagar, Gujarat State that, when the victim approaches the Police Station to lodge complaint, the Police inform the victim that, the offence relates to Cyber Crime, we cannot do anything in it, you should contact to Cyber Cell, Gandhinagar / City Crime Cyber Cell and in many cases, the victim is not even heard.

Recently, the P.S.I./P.I., have also been HC-NIC Page 6 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER given the training regarding the investigation of ‘E’ Mail Tracing and Cyber Crime. Its purpose is to take speedy action in the offences/applications pertaining to Cyber Crime being taken place in City/District. In fact, as per the amendment made in the ‘I.T.Act’, now the Officer of the Police Inspector Cadre can investigate the offence under the I.T.Act.

Therefore, when the victim comes to the police station in connection with the incidents pertaining to cyber crime, his application/representation may be taken into consideration by the Senior/Second Police Inspector immediately and he should conduct proper investigation of the application or get it conducted, if he finds it proper, he should register the offence and conduct the investigation thereof and in complicated cases, if necessary, he should send the detailed report through the Deputy Police Commissioner so that, this office may give proper direction with regard to hand over the investigation of the important cases to the City Cyber Cell. All the Police Station Officers are instructed to take special note thereof.

Sd/- (S.K.Saikiya), The Police Commissioner, Ahmedabad City.

To, The Police Inspectors, All the Police Stations, Ahmedabad City.

Copy forwarded for information and for verification during visit.

The Joint Police Commissioner, Crime Branch, Section – 1 and 2, Head Quarter, Special Branch, Ahmedabad City, -illegible-.”

  1. As the police officers and other personnels are already trained to investigate into the offence which HC-NIC Page 7 of 8 Created On Sun Mar 13 22:05:12 IST 2016 R/SCR.A/1410/2016 ORDER concerned the cyber-crime as also in wake of directions rendered in the case of Lalita Kumari vs. Government of Uttar Pradesh and another(supra), the task of registration of the complaint (FIR) shall be undertaken at the earliest by following aforementioned directions.
  2. At this stage, it is mandatory for the very police station to register the crime even if it is cyber-crime emerging from the complaint. It is only in case of most complicated cases that the permission can be sought of the Police Commissioner for referring the matter to the cyber-crime cell.
  3. Petition is allowed to the extent above. Disposed of accordingly.

Direct service is permitted.

(MS SONIA GOKANI, J.)

As a question of law was being raised notice was issued limited to this question.

Parties have been heard on the limited question of law. It must be mentioned that arguments have proceeded on an admitted footing that what had been recovered from both the Appellants was “husk” of the opium poppy plant i.e. husk of the plant of the species “Papaver”.

Before the arguments of the parties are considered the relevant provisions of the NDPS Act may be set out :

Section 2(xv) “opium” means;

(a) the coagulated juice of the opium poppy; and

(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy,

(c) but does not include any preparation containing not more than 0.2 per cent of morphine.

Section 2(xvii) “opium poppy” means –

(a) the plant of the species Papaver sommiferum L.; and

(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act;

Section 2(xviii) ‘poppy straw’ means all parts (except the seeds) of the opium poppy after harvesting whether in their original or cut, crushed or powered and whether or not juice has been extracted therefrom.”

Section 15. Punishment for contravention in relation of poppy straw. – Whoever, in contravention of any provision of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter- State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.


 

Supreme Court of India

Bench: K.T. Thomas, Doraiswamy Raju, S.N. Variava.

CASE NO.:

Special Leave Petition (crl.) 73  of  2000

Special Leave Petition (crl.)          4141       of  1999

PETITIONER:

AJAIB SINGH

Vs.

RESPONDENT:

DATE OF JUDGMENT:     11/04/2000

BENCH:

K.T. Thomas, Doraiswamy Raju & S.N. Variava.

JUDGMENT:

  1. N. Variava, J.

Leave granted.

J Both these       Appeals can be disposed of by   this common Order.

Appellants          in both appeals were convicted separately by two separate trial courts under Section 15 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the ‘NDPS Act’). Each of them was sentenced to undergo rigorous imprisonment for ten years and a fine of Rupees one lakh. In default of payment of fine Appellant Ajaib Singh was to undergo rigorous imprisonment for a period of three years and Appellant            Sapinder Singh  was to undergo rigorous imprisonment for a period of one year. They filed separate appeals        and the High Court of Punjab and Haryana dismissed their appeals by separate judgments and those judgments are now impugned before us. Appellant Ajaib Singh was found to be in possession of 10 kilograms of Poppy husks on 4.6.1996. Appellant Sapinder Singh was found to be in possession of 10 bags each containing    34 kilograms       of poppy husks on 23.12.1993. The common question involved in both      the appeals        is whether poppy husks would fall           within   the expression “poppy straw”.

When the SLPs were heard this Court was not inclined to entertain the SLPs. However, it was submitted, in both the SLPs, that the Appellants had been convicted under Section 15 of the NDPS Act. It was submitted that Section 15 deals with offences              relating to “poppy straw”, whereas what              had been recovered from the Appellants was “poppy husk”. It was submitted that the Appellants could not have been convicted unless the offence alleged against them fell strictly within the provisions       of the NDPS Act. It was submitted that if the NDPS Act did not provide for any offence in respect of “poppy husk” then the convictions could not be maintained.

As  a question of law was being raised notice was issued limited to this question.

Parties have been heard on the limited question of law. It must be mentioned that arguments have proceeded on an admitted footing that what had been recovered from both the Appellants was “husk” of the opium poppy plant i.e. husk of the plant of the species “Papaver”.

Before the arguments of the parties are considered       the relevant provisions of the NDPS Act may be set out :

Section 2(xv) “opium” means;

(a) the coagulated juice of the opium poppy; and

(b)          any mixture, with or without any neutral material, of the coagulated juice of the opium poppy,

(c)           but does not include any preparation containing not more than 0.2 per cent of morphine.

Section 2(xvii) “opium poppy” means –

(a) the plant of the species Papaver sommiferum L.;       and

(b) the plant of any other species of Papaver from which opium or any  phenanthrene alkaloid can be extracted               and which the Central Government may, by notification in   the Official Gazette, declare to be opium poppy for the purposes of this Act;

Section 2(xviii) ‘poppy straw’ means all parts (except the seeds) of the opium poppy after harvesting whether in their original or cut, crushed or powered and whether or not juice has been extracted therefrom.”

“Section 15. Punishment for contravention in relation of poppy straw. – Whoever,           in contravention of         any provision of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter- State, sells,            purchases, uses or omits to warehouse poppy straw or removes              or does any act in respect of warehoused poppy straw, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend        to twenty years and shall also be liable to             fine which shall not be less than one lakh rupees but which  may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.

Mr.         O.P.       Sharma for the Appellant Ajaib Singh      has submitted that          the offence under Section 15     is only in respect of producing, possessing, transporting, importing or exporting inter-State, selling, purchasing, using       or omitting to warehouse “poppy straw”.    Mr. Sharma submits that the terms “poppy straw” as defined in Section 2(xviii), “opium                poppy” as defined in Section 2(xvii) and “opium” as defined        in Section 2 (xv) all have a common ingredient i.e. “opium”. He submits      that a conjoint reading of all        the above mentioned sub- clauses shows that an offence can only be in relation to a substance which contains more than  0.2 per cent of morphine. He submitted that the “poppy husk” is non-narcotic.     It submitted that it has thus not                been defined    anywhere or made punishable under the NDPS Act. He submitted that “poppy husk” does not contain more than     0.2 per cent of morphine and thus no offence could be said to have been made out. He submitted that “poppy husk” is        not “poppy         straw”   and that there can           be no                offence                for possession of “poppy husk”.

Mr.         Rao Ranjit for Appellant Sapinder Singh supported Mr. Sharma. He further submitted that the chemical report shows that what was recovered was “chura post poppy heads”. He relied upon certain passages from Modi’s Text Book of Medical Jurisprudence & Toxicology wherein it is, inter alia stated as follows :

“Poppy seeds (khas-khas)           are innocuous and white in colour, used as a constituent in some foods or are sprinkled over some Indian sweets. It is regarded as a demulcent and a nutritive. The seeds yield a bland oil, known as poppy seed oil (khas khas ka tgel), which is largely used for culinary and lighting purposes”

He also showed to Court the definition of the term poppy in the Shorter Oxford Dictionary and Webster’s           Dictionary. He also showed to Court the definition of the term husk in Webster’s Dictionary.              He submitted that the NDPS Act                was dealing        with substances which affect the cerebral functions and/or the peripheral nervous system and/or the functions of the body. He submitted that it is clear that         the “poppy husk” would not have any somniferous poisons which affect on the Central Nervous System of the body. He submitted                that “poppy husk” was merely the waste on the top covering of the seed.     He submitted that the “poppy husk” was part    and parcel           of the seed. He submitted that if it                was removed from the seed      it becomes waste which, by        itself,     was worthless. He submitted that Section 2(xviii) specifically provides that                “seed” is not “poppy straw”. He submitted that “poppy husk” being part and parcel of “seed” would not fall within the definition of the term poppy straw.

On          the other hand Shri Rajiv Dutta, learned counsel for the respondent – State, has submitted that the provisions of the NDPS Act     are very clear. He submitted       that under Section          15 an offence is committed if anybody produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse “poppy                straw”. He submitted that the offence under Section 15 is           different from the offence under Section 18 which deals with “opium poppy” and “opium”.               He submitted    that “poppy        straw”   has been defined under the NDPS Act.        He submits         that it includes all parts of “opium            poppy”.                He points             out that the terms “opium poppy” means the plant of the species Papaver. He submitted that the term “all parts” would also include the “husk”.   He submitted that the          husk was not worthless. He submitted that it was not at               all necessary that             the “husk” form part of the               “seed”. He submitted that           “seed” has been excluded, because in India the “seed” is                used as constituent        in foods and       even sprinkled over some Indian sweets. He pointed out that the seed also yields a bland oil, which is largely used   for culinary and lighting purposes. He submitted that for an offence        under                Section 15 it was not at all necessary       that there must be more than 0.2 per cent of morphine in the item which has been seized.

Mr.         Dutta     also submitted that this point is being raised for the first time in the Appeals and that it had not been taken up before the lower courts. He submitted           that such a          point     should not be allowed to be raised for   the first time in the Appeal.

It is undoubtedly true that this point is being taken up for the first time in the Appeal. However, it is a point of law which would have a bearing on a large number of cases. We, therefore,            permit the Appellants to raise this point. It is a point of law which requires to be decided.

We are unable to accept the arguments of Mr. Sharma and Mr. Rao. Under Section 15 the offence is in respect of “poppy                straw”. Even though the term “poppy husk” has               not been defined in NDPS Act, the term “poppy straw” has                been defined. The term “poppy straw” includes all parts (except the seeds) of the “opium poppy”. “Opium poppy” means  the plant of the species Papaver.             Thus except for the seed all other parts of the plant of the species Papaver would   fall in the             term “poppy straw”. To be noted that parts of   the plant Papaver would fall within the term “poppy straw” even though        no juice has        been extracted therefrom. For an offence           under    Section 15 it is not at all necessary            that “poppy        straw”   should have been used or made into “opium”. For cultivation, producing,                manufacturing, possessing, selling, purchasing, transporting, importing or exporting inter-State or           using                opium there is   a separate offence provided for under Section 18. If the alleged offence is under Section             18, then the question may arise whether    the preparation contained           more than 0.2 per cent of morphine. For an                offence under Section 15, question of   considering whether      the preparation contains more than 0.2 per cent of morphine does not arise. As seen above even though no juice may have been  extracted, so long as it is a           Papaver, it would still be “poppy straw” if it is a part of the plant Papaver.

The        Modi’s Text        Book of Medical Jurisprudence & Toxicology says that    a poppy seed is used in foods , sprinkled over sweets and also yields a bland oil, which is used for culinary and lighting purposes. It is because of this that a seed has been excluded from the definition of poppy straw.         Poppy seed could be used in food or Indian sweets         or made into oil, which is largely used for culinary and lighting purposes only after it is de-husked. Thus the seed would be separated from the husk. The definition of husk as given in Webster’s Dictionary, shows that the   husk is any covering, especially when it is comparatively worth less. The husk whether it is on the seed or is removed from the seed remains a part of the plant Papaver. In the commentaries on NDPS Act by Mr. P.K.      Jain it is set         out that crushed capsules of poppy of commonly called “poppy husk” or “bhuki” whether extracted or not and that     they contain       a certain percentage of morphine and are often used as addiction producing intoxicants.              Thus it would     fall within            the definition    of the term “poppy straw”, which includes all parts of the plant Papaver. While seed            has been specifically excluded husk has not been excluded, from the definition of the term “poppy straw”. Therefore, in our view the producing, possessing, transporting, importing, exporting inter- State, selling, purchasing, using or omitting to warehouse poppy husk would be an offence under Section 15 inasmuch as poppy husk would fall within the term poppy straw as used in that Section.

In            this view of the matter the Appeals        would stand dismissed.

Section 15 of the NDPS Act speaks about punishment for contravention in relation to poppy straw. As per sub-section (a) where the contravention involves small quantity, the rigorous imprisonment may extend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub- section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention involves commercial quantity, the rigorous imprisonment shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. – owner of the car which was involved in the offence, possession of commercial quantity, FSL report which shows that the contraband is poppy straw and is a prohibited item, we are in entire agreement with the conclusion arrived at by the trial Court and affirmed by the High Court. Further, taking note of the fact that the quantity involved is 70 kgs. of poppy straw which is more than a commercial quantity, the Special Judge rightly imposed minimum sentence and fine in terms of Section 15(c) of the NDPS Act. We are in agreement with the said conclusion.

ndps act

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 CRIMINAL APPEAL NOs. 1690-1691 OF 2012

(Arising out of S.L.P. (Crl.) Nos. 9415-9416 of 2011)

Sumit Tomar                                          …. Appellant(s)

Versus

The State of Punjab                                …. Respondent(s)

 

J U D G M E N T

P.Sathasivam,J.

1)    Leave granted.

2)    These appeals are  directed  against  the  judgment  and  order  dated

31.01.2011 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 2079 SB of 2009 whereby the High Court dismissed the criminal appeal filed by the appellant herein and also of the order dated 17.05.2011 passed by the High Court in Crl.M. No. 26283 of 2011 regarding correction of the date in the judgment.

3)    Brief facts:

(i)    According to the prosecution, on 27.06.2004, at about  5.00  p.m.,  a

special barricading was set up by the police party at Basantpur Bus Stand, Patiala. At that time, the police party signaled to stop a silver colour Indica Car bearing No. DL-7CC-0654 which was coming from the side of Rajpura. The driver of the said car (appellant herein), accompanied with one Vikas Kumar (since deceased), who was sitting next to him, instead of stopping the car tried to run away, but the police party immediately blocked the way and managed to stop the car. On suspicion, the police checked the car and found two plastic bags containing ‘bhooki’ opium powder from the dickey of the said vehicle. The contents of both the bags were mixed and two samples of 250 gms. each were taken out. The remaining contraband weighing 69.50 kgs. was sealed in two bags and the samples were sent to the Forensic Science Laboratory (FSL) for examination.

(ii) On the same day, i.e., 27.06.2004, a First Information Report (FIR) being No. 105 of 2004 was lodged by the police against the appellant herein and Vikas Kumar under Sections 8, 15, 60, and 61 of the Narcotic Drugs & Psychotropic Substances, Act, 1985 (in short “the NDPS Act”).

(iii) On receipt of the report of the Chemical Examiner and after completion of all the formalities relating to investigation, the case was committed to the Special Court, Patiala and numbered as Sessions Case No. 118T/06.09.04/17.11.08. During the pendency of the case, Vikas Kumar died. The Special Court, Patiala, by order dated 20.08.2009, convicted the appellant herein under Section 15 of the NDPS Act and sentenced him to undergo rigorous imprisonment (RI) for 10 years alongwith a fine of Rs. One lakh, in default, to further undergo R.I. for one year.

(iv) Being aggrieved, the appellant herein filed Criminal Appeal No. 2079 SB of 2009 before the High Court of Punjab & Haryana. Learned single Judge of the High Court, by impugned order dated 31.01.2011, dismissed the said appeal. Questioning the same, the appellant has filed these appeals by way of special leave before this Court.

4) Heard Mr. V. Giri, learned senior counsel for the appellant and Ms. Noopur Singhal, learned counsel for the respondent-State.

5) Mr. V. Giri, learned senior counsel for the appellant raised the following contentions:

  1. i) one Kaur Singh, an independent witness, was allegedly joined by the prosecution but has not been examined. Though the prosecution claimed that the presence of Kaur Singh at the spot was natural, since he was not examined, the entire story of the prosecution has to be rejected;

 

  1. ii) in the absence of independent witness, conviction based on official witnesses, cannot be sustained; and

iii) inasmuch as after the alleged seizure of contraband in two separate bags, there is no need for the officers to mix both the samples which was an irregularity and goes against the prosecution case.

6) On the other hand, Ms. Noopur Singhal, learned counsel for the State submitted that the person who was present at the time of seizure was Kaur Singh and, hence, he is a natural witness and to show their bona fide, the prosecution summoned him for examination, but he failed to appear. She further submitted that mixing of poppy husk found in two bags is not an irregularity, on the other hand, according to her, the prosecution has proved its case beyond reasonable doubt and prayed for confirmation of the order of conviction and sentence.

7) We have carefully considered the rival submissions and perused all the relevant materials.

8) As regards the first two contentions raised by learned senior counsel for the appellant, it is true that Kaur Singh, according to the prosecution, is an independent witness, however, he was not examined on the side of the prosecution. It is the case of the prosecution that on 27.06.2004 while Kaur Singh was just passing through, he met the police party who had laid a special nakabandi near Basantpur Bus-stand for nabbing the anti-social elements. In such circumstance, his presence cannot be doubted, on the other hand, his presence seems to be natural and a perusal of the consent memo, the recovery memo and the arrest memo shows that he was present at the time when the recovery was effected from the accused. His signatures appended in all these memos show that he has witnessed the recovery. It is true that the prosecution could have examined him. For this, it is the stand of the prosecution that in spite of necessary steps taken by issuing summons, he did not appear for which the prosecution case cannot be thrown out.

9) In order to substantiate its claim, the prosecution examined Shri Lakhwinder Singh, Head Constable as PW-1, Shri Devinder Kumar, owner of the car as PW-2, Shri Gurdeep Singh, Assistant Sub-inspector of Police as PW-3 and Shri Mohan Singh, Head Constable as PW-6. The Special Court as well as the High Court, on going through the evidence of the above-mentioned official witnesses and the documents, namely, FIR, seizure memo, FSL report etc., accepted the case of the prosecution. Even before us, learned senior counsel for the appellant took us through the evidence of the above- mentioned prosecution witnesses and the connected materials. In a case of this nature, it is better if the prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and the official witnesses, there is nothing wrong in relying on their testimonies and accepting the documents placed for basing conviction. After taking into account the entire materials relied on by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also do not find any infirmity in the prosecution case. It is not in dispute that the present appellant (A-2) was driving the car in question which carried the contraband. PW-2, owner of the car was also examined and proved its ownership and deposed that Sumit Tomar demanded the said car for personal use. In view of the above discussion, we hold that though it is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. On the other hand, the procedure adopted by the prosecution is acceptable and permissible, particularly, in respect of the offences under the NDPS Act. Accordingly, we reject both the contentions.

10) The next contention, according to the learned senior counsel for the appellant, is that the prosecution has committed an irregularity by mixing up the contraband found in the bags and taking samples thereafter. We find no substance in the said argument. The present appellant was driving the car in which two bags of contraband were loaded. He further pointed out that in view of Section 15 (c) of the NDPS Act, which prescribes minimum sentence of 10 years and which may extend to 20 years where the contravention involves commercial quantity, the mixing of two bags is a grave irregularity which affects the interest of the appellant. We are unable to accept the said contention. It is true that Section 15 of the NDPS Act speaks about punishment for contravention in relation to poppy straw. As per sub-section (a) where the contravention involves small quantity, the rigorous imprisonment may extend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub- section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention involves commercial quantity, the rigorous imprisonment shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Merely because different punishments have been prescribed depending on the quantity of contraband, we are satisfied that by mixing the said two bags, the same has not caused any prejudice to the appellant. Even after taking two samples of 250 grams each, the quantity measured comes to 69.50 kgs which is more than commercial quantity (small quantity 1000 gms/commercial quantity 50 kgs. and above). In view of the same, the contention that the police should have taken two samples each from the two bags without mixing is liable to be rejected.

11) Taking note of all the materials, the evidence of official witnesses, PW-2, owner of the car which was involved in the offence, possession of commercial quantity, FSL report which shows that the contraband is poppy straw and is a prohibited item, we are in entire agreement with the conclusion arrived at by the trial Court and affirmed by the High Court. Further, taking note of the fact that the quantity involved is 70 kgs. of poppy straw which is more than a commercial quantity, the Special Judge rightly imposed minimum sentence and fine in terms of Section 15(c) of the NDPS Act. We are in agreement with the said conclusion.

12) In the light of the above discussion, we do not find any merit in the appeals, consequently, the same are dismissed.

………….…………………………J.

(P. SATHASIVAM) ………….…………………………J.

(RANJAN GOGOI) NEW DELHI;

 

Section 30 in The Indian Evidence Act, 1872

  1. Consideration of proved confession affecting person making it and others jointly under trial for same offence.—When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. 1[Explanation.—“Offence”, as used in this section, includes the abetment of, or attempt to commit the offence.] Illustrations

(a) A and B are jointly tried for the murder of C. It is proved that A said—”B and I murdered C”. The Court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said—“A and I murdered C”. This statement may not be taken into consideration by the Court against A, as B is not being jointly tried. COMMENTS Accused’s confession cannot be used against co-accused The statement of the accused leading to the discovery, or the informatory statement amounting to confession of the accused, cannot be used against the co-accused with the aid of section 303; Kamal Kishore v. State (Delhi Administration), (1972) 2 Crimes 169 (Del).

The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a `voluntary’ statement within the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with.

(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.

(x) Confession of a co-accused is a weak type of evidence.
(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1366 OF 2005

Rabindra Kumar Pal @ Dara Singh             …. Appellant(s)

Versus

Republic of India                           …. Respondent(s)

 

WITH

 

CRIMINAL APPEAL NO. 1259 OF 2007

 

AND

 

CRIMINAL APPEAL NOS. 1357-1365 OF 2005

JUDGMENT

  1. Sathasivam, J.

1) These appeals relate to a sensational case of triple murder of an Australian Christian Missionary – Graham Stuart Staines and his two minor sons, namely, Philip Staines, aged about 10 years and Timothy Staines aged about 6 years.

2) Criminal Appeal No. 1366 of 2005 is filed by Rabindra Kumar Pal @ Dara Singh against the final judgment and order dated 19.05.2005 passed by the High Court of Orissa at Cuttack in Criminal Appeal No. 239 of 2003 whereby the High Court dismissed the appeal of the appellant upholding the conviction and commuting the death sentence passed by the trial Court into that of life imprisonment. Against the same judgment, Criminal Appeal No. 1259 of 2007 is filed by Mahendra Hembram challenging his life imprisonment awarded by the trial Court and confirmed by the High Court. Against the acquittal of rest of the accused by the High Court, the Central Bureau of Investigation (in short “the CBI”) filed Criminal Appeal Nos. 1357-1365 of 2005. Since all the appeals arose from the common judgment of the High Court and relating to the very same incident that took place in the midnight of 22.01.1999/23.01.1999, they are being disposed of by this judgment

3)    The case of the prosecution is as under:

(a)    Graham Stuart Staines, a Christian Missionary from

Australia, was working among the tribal people especially
lepers of the State of Orissa. His two minor sons, namely, Philip Staines and Timothy Staines were burnt to death along with their father in the midnight of 22.01.1999/23.01.1999. The deceased-Graham Staines was engaged in propagating and preaching Christianity in the tribal area of interior Orissa. Manoharpur is a remote tribal village under the Anandapur Police Station of the District Keonjhar of Orissa. Every year, soon after the Makar Sankranti, the said missionary used to come to the village to conduct the Jungle Camp. Accordingly, on 20.01.1999, the deceased-Staines, along with his two minor sons Philip and Timothy and several other persons came to the village Manoharpur. They conducted the camp for next two days by hosting a series of programmes.

(b) On 22.01.1999, the Missionary Team, as usual conducted different programmes in the village near the Church and retired for the day. Graham Staines and his two minor sons slept in their vehicle parked outside the Church. In the mid- night, a mob of 60-70 people came to the spot and set fire to the vehicle in which the deceased persons were sleeping. The mob prevented the deceased to get themselves out of the
vehicle as a result of which all the three persons got burnt in the vehicle. The local police was informed about the incident on the next day.

(c) Since the local police was not able to proceed with the investigation satisfactorily, on 23.04.1999, the same was handed over to the State Crime Branch. Even the Crime Branch failed to conduct the investigation, ultimately, the investigation was transferred to CBI.

(d) On 03.05.1999, the investigation was taken over by the CBI. After thorough investigation, charge sheet was filed by the CBI on 22.06.1999. On the basis of charge sheet, as many as 14 accused persons were put to trial. Apart from these accused, one minor was tried by Juvenile Court.

(e) The prosecution examined as many as 55 witnesses whereas in defence 25 witnesses were examined. Series of documents were exhibited by the prosecution. By a common judgment and order dated 15.09.2003 and 22.09.2003, Sessions Judge, Khurda convicted all the accused and sentenced them for offences punishable under various sections. The death sentence was passed against Dara Singh-
appellant in Criminal Appeal No. 1366 of 2005 and others were awarded sentence of life imprisonment.

(f) The death reference and the appeals filed by the convicted persons were heard together by the High Court and were disposed of by common judgment dated 19.05.2005 concluding that the witnesses are not trustworthy and no credence should be given to their statements and confessional statements were procured by the investigating agency under threat and coercion. The High Court, by the impugned judgment, modified the death sentence awarded to Dara Singh into life imprisonment and confirmed the life imprisonment imposed on Mahendra Hembram and acquitted all the other accused persons. Questioning the conviction and sentence of life imprisonment, Dara Singh and Mahendra Hembram filed Criminal Appeal Nos. 1366 of 2005 and 1259 of 2007 respectively and against the acquittal of rest of the accused, CBI filed Criminal Appeal Nos. 1357-65 of 2005 before this Court.

4) Heard Mr. KTS Tulsi and Mr. Ratnakar Dash, learned senior counsel for the accused/appellants and Mr. Vivek K. Tankha, learned Addl. Solicitor General for the CBI.

5) Mr. K.T.S. Tulsi, learned senior counsel appearing for Rabindra Kumar Pal @ Dara Singh (A1) and other accused in the appeals against acquittal filed by the CBI, after taking us through all the relevant materials has raised the following contentions:-

(i) Confessions of various accused persons, particularly, Rabi Soren (A9), Mahadev Mahanta (A11) and Turam Ho (A12) under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.’) cannot be considered to be voluntary on account of the fact that all the co-accused persons were produced before the Magistrate from the police custody and were remanded back to police custody. Similarly, Dayanidhi Patra @ Daya (A14) was produced from the police custody for confession while Umakant Bhoi (A13) made his statement while on bail. Besides all confessions being exculpatory and made after conspiracy ceased to be operative and inadmissible.

(ii) Inasmuch as recording of confessions of various accused persons was done after the investigation was taken over by Jogendra Nayak (PW 55), I.O. of the CBI which shows the extent to which strong arm tactics were used by the investigating agency.

(iii) The statements of eye-witnesses are contradictory to each other on all material points.

(iv) There are several circumstances which are inconsistent with the fire started by arson from outside and several circumstances consistent with the fire emanating from inside of the vehicle and then spread to rest of the vehicle after fuel tank caught fire.

(v) This Court in cases of appeals against acquittal has held that when two views are possible, one in favour of the accused should be accepted.

6) Mr. Dash, learned senior counsel appearing for the accused Mahendra Hembram (A3) reiterating the above submissions of Mr. Tulsi also pinpointed deficiency in the prosecution case insofar as (A3) is concerned.

7) Mr. Vivek Tankha, learned Addl. Solicitor General, after taking us through oral and documentary evidence, extensively refuted all the contentions of the learned senior counsel for the accused and raised the following submissions:-

(i) The High Court committed an error in altering the death sentence into life imprisonment in favour of (A1) and acquitting all other accused except (A3). He pointed out that the appreciation of the evidence by the High Court is wholly perverse and it erroneously disregarded the testimony of twelve eye-witnesses.

(ii) The High Court failed to appreciate the fact that the three accused, namely, Mahendra Hembram (A3), Ojen @ Suresh Hansda (A7) and Renta Hembram (A10) belonging to the same village were known to the eye-witnesses and, therefore, there is no requirement to conduct Test Identification Parade (in short `TIP’).

(iii) The High Court erred in acquitting 11 accused persons on the sole ground that TIP was not conducted and, therefore, identification by the eye-witnesses was doubtful.

(iv) The evidence of identification in Court is substantive evidence and that of the identification in TIP is of corroborative value.

(v) The High Court committed a serious error in law in disregarding the confessional statements made under Section 164 of the Cr.P.C. as well as the extra-judicial confessions made by Dara Singh (A1) and Mahendra Hembram (A3).

(vi) The High Court wrongly held inculpatory confessional statements as exculpatory and on that ground rejected the same. The High Court failed to appreciate that in their confessional statements (A9), (A11), (A12), (A13) and (A14) have clearly admitted their plan for committing the crime.

(vii) The adverse observations against (PW 55) the Investigating Officer of CBI, by the High Court are not warranted and in any event not supported by any material.

(viii) Inasmuch as it was Dara Singh (A1) who originated and organized the heinous act and also prevented the deceased persons from coming out of the burning vehicle, the High Court ought to have confirmed his death sentence.

(ix) The reasons given by the High Court in acquitting 11 persons are unacceptable and the judgment to that extent is liable to be set aside.

8) We have considered the rival submissions and perused all the oral and documentary evidence led by the prosecution and defence.

9) With the various materials in the form of oral and documentary evidence, reasoning of the trial Judge and the ultimate decision of the High Court, we have to find out whether the conviction and sentence of life imprisonment imposed on Dara Singh (A1) and Mahendra Hembram (A3) is sustainable and whether prosecution has proved its case even against the accused who were acquitted by the High Court. Eye witnesses

10) According to the learned senior counsel for the accused, the statements of eye-witnesses are contradictory to each other on all material points. It is his further claim that exaggerated and improved version of the incident makes it difficult to place implicit reliance on the statements of any of those witnesses. On the other hand, it is the claim of the
prosecution that the statements of eye-witnesses are reliable and acceptable and it was rightly considered by the trial Court and erroneously rejected except insofar as against Dara Singh (A1) and Mahendra Hembram (A3) by the High Court.

  1. i) PW2, Basi Tudu, one of the prime eye-witness, identified in dock the previously known accused of her village Ojen Hansda. She was not examined by local police, however, examined by the CID on 04.02.1999 and by the CBI on 05.06.1999. In her evidence, she stated that she is a Christian by faith. Before the court, she deposed that her house is located near the place of occurrence. She also stated that Graham Staines along with his two sons came at Manoharpur church after Makar Sankranti and stayed there in the night. He along with his two sons slept inside the vehicle. Inside the court, during her deposition, she first wrongly identified accused Rajat Kumar Das as accused Ojen Hansda. However, when she had a better view of the accused in the court, she correctly identified Ojen Hansda as the person whom she saw among 60 persons holding torch lights and lathis going towards the church. She stated that in the
    midnight, on hearing barking of dogs, she woke up from sleep and came out of the house. She found about 60 persons going towards the church where the vehicles of Graham Staines were parked. Those persons did not allow her to proceed further. Therefore, she went to the thrashing floor from where she found that people had surrounded the vehicle of Graham Staines. Thereafter, she found the vehicle on fire. The wheels of vehicle in which Graham Staines and his two sons were sleeping, bursted aloud, and they were burnt to death. The people who surrounded the vehicles raised slogans “Jai Bajarang Bali” and “Dara Singh Zindabad”. It is clear that she could identify only Ojen @ Suresh Hansda by face for the first time before the trial Court. No TIP was held to enable her to identify him. It shows that her identification of Ojen @ Suresh Hansda by face during trial was not corroborated by any previously held TIP. It is also clear that though she was examined by the State Police/CID, she never disclosed the name of Ojen @ Suresh Hansda. Though she claims to have identified Ojen @ Suresh Hansda by the light of the lamp (locally called Dibri) which she had kept in the Verandah, it
    must be noted that it was midnight during the peak winter season and there is no explanation for keeping the lamp in the Verandah during midnight. In her cross-examination, she admitted that she could not identify any of the persons who had surrounded the vehicle of Graham Staines and set it ablaze.
  2. ii) The next eye-witness examined on the side of the prosecution is PW3, Paul Murmu. He admitted that he was converted to Christianity in the year 1997. He identified accused Dara Singh in dock. He was examined by the local police on 23.01.1999, by CID on 10.02.1999 and by the CBI on 20.04.1999. He used to accompany Graham Staines at different places. He last accompanied Graham Staines on his visit to Manoharpur on 20.02.1999. He stated that Graham Staines with his two sons was in a separate vehicle and the witness along with other three persons was in another vehicle. In the night of 22.01.1999, Graham Staines along with his two sons slept in his vehicle, which was parked in front of the church. The witness slept in a hut, which was raised behind the church. In the midnight, Nimai Hansda (driver of vehicle)
    woke him up. He heard the sound of beating of the vehicles parked in front of the church. He along with Nimai Hansda went near the chruch and found 60-70 persons putting straw beneath the vehicle of Graham Staines and setting it on fire. Three persons broke the glass panes of the vehicle in which Graham Staines and his two sons were sleeping and gave strokes to them with sticks. They were focusing the torch into the vehicles. One of them was having a beard. The witness pointed out to the accused Dara Singh (A1) on the dock saying that the bearded man resembled like him. The witness was unable to identify the other two persons who were in the dock. However, he also asserted the hearing of slogans saying “Dara Singh Zindabad” which corroborates his identification.

 

iii) The next eye-witness examined by the prosecution is PW4, Rolia Soren. It was he who lodged FIR. He was examined by the local police on 23.01.1999, by the CID on 03.02.1999 and by the CBI on 09.04.1999. He is a resident of Manohapur Village (the place of occurrence) and Graham Staines was well known to him. He stated that Graham Staines along with his two sons and other persons visited Manoharpur on
20.01.1999. In the night of 22.01.1999, Graham Staines and his two sons slept in the vehicle bearing No. 1208 which was parked in front of the church. Another vehicle No. 952 was also parked in front of the church. The house of witness was situated in the south of church, four houses apart and the vehicles parked in front of church were visible from the road in front of his house. In the night of 22.01.1999, his wife woke him up and said that she found large number of people with lathis and torches going towards the church. After walking about 100 ft. towards the vehicles, he found a large number of people delivering lathis blow on the vehicle in which Graham Staines and his two sons were sleeping and the other vehicle bearing No. 952 was already set on fire. Three-four persons belonging to the group caught hold of him by collar and restrained him from proceeding towards the vehicle. The witness could not recognize them as their heads were covered with caps and faces by mufflers. The witness went towards the village and called Christian people. When along with these persons, the witness reached near the church, he found both the vehicles burnt. Graham Staines and his two sons were
also burnt to death. The next day, at about 9 P.M., the Officer-In-Charge (OIC) Anandpur PS showed his written paper and said that was the FIR and he had to lend his signature and accordingly, he lend his signature thereon. The witness had identified his signatures during his deposition in the court. Though he mentioned large number of miscreants, but they were not chargesheeted. In the FIR itself it was stated by this witness that at the time of occurrence miscreants raised slogans saying “Bajrang Bali Zindabad” and “Dara Singh Zindabad”.

 

  1. iv) Singo Marandi (PW5) was examined as next eye-witness. Though he named accused Ojen Hansda, in his deposition stated that he belonged to his village and in the dock he could not identify him with certainty. His statement was not recorded by the local police but recorded by the CID on 03.02.1999 and by the CBI on 07.06.1999. This witness is a resident of Manoharpur (the place of occurrence). He stated that on Saraswati Puja day of 1999, after witnessing the Nagin dance along with his mother, he slept in Verandah of Galu and her mother was sitting by his side. At about midnight, his
    mother woke him up. He saw something was burning near the church and found a vehicle moving towards the road. Ojen and Chenchu of his village carrying torch and lathis came to them and warned them not to go near the fire as some people were killing the Christians there. Thereafter, he heard sounds of blowing of whistles thrice and raising slogans saying “Dara Singh Zindabad”. It is seen from his evidence that at that time he was prosecuting his studies at Cuttack and his mother was working as a labourer in Bhadrak. It is also not clear as to what was the need for him to sleep in Verandah of another person with his mother sitting beside him till midnight during peak of the winter.

 

  1. v) The next eye-witness examined by the prosecution is Nimai Hansda (PW10). He was examined by the local police on 23.01.1999, by the CID on 11.02.1999 and by the CBI on 20.04.1999. He did not identify any of the accused.He was the driver of Graham Staines. Vehicle No. 1208 was driven by him. He along with Graham Staines and others came to the place of occurrence on 20.01.1999. Graham Staines and his two sons used to sleep in the said vehicle. He stated that in
    the midnight of 22.01.1999, on hearing bursting sounds, he woke up. He heard the sound of beating the vehicles parked in front of church in which Graham Staines and his two sons were sleeping. He ran towards the vehicles and found some people beating the vehicles with lathis. They first broke the glass pane of vehicle No. 952. Thereafter, a boy set the vehicle on fire. Before setting the vehicle on fire, he put bundle of straw at front right wheel of vehicle. When the witness raised a noise of protest, those people assaulted him. He went to call the people but nobody came. When he came back to the place of occurrence, he found both the vehicles on fire. The witness stated that there were about 30-40 people armed with lathis and holding torches. They raised slogan `Jai Bajarang Bali’ and `Dara Singh Zindabad. The fire was extinguished at 3 a.m. By that time, both the vehicles were completely burnt. Graham Staines and his two sons were completely charred and burnt to death. The witness could not identify any of the miscreants who set the vehicles on fire.
  2. vi) PW11, Bhakta Marandi was next examined on the side of the prosecution as eye-witness. He identified accused Dara
    Singh and Rajat Kumar Das in dock. His statement was neither recorded by local police nor by the CID but recorded by the CBI on 05.06.1999. He belongs to Village Manoharpur (the place of occurrence). His house is situated two houses apart from the church. He stated that the deceased Graham Staines was known to him. He last visited Manoharpur on 20.01.1999 along with his two sons and others in two vehicles. Graham Staines and his two sons used to sleep in the night inside the vehicle parked in front of the church. As usual in the night of 22.01.1999, Graham Staines and his two sons had slept in a vehicle. In the midnight, the witness was woken up by his wife on hearing bursting sounds. He came out of his house and found 4/5 persons standing in front of his house holding torches and lathis. They were threatening that they will kill the persons who will dare to come in their way. One of them threw a baton like stick at him. He retreated to his house and went to the house of another person situated one house apart from the church. A slim and tall man was holding an axe. They set on fire one of the vehicles. Some of them brought straw and put the same on the vehicle. They set fire both the
    vehicles and both the vehicles were burnt. They raised the slogans “Jai Bajarang Bali” and “Dara Singh Zindabad”. The witness pointed accused Dara Singh (A1) and accused Rajat Kumar Das in the dock as two of those persons beating the vehicles and setting fire on the vehicles. The witness identified accused Dara Singh (A1) as slim and tall fellow holding the axe and guiding the miscreants. The witness further stated that the CBI while interrogating him showed photographs of some persons and he had identified two of the photographs as that of miscreants. He had signed on those photographs. About the admissibility of the identification of the accused persons with the photographs can be considered at a later point of time. He did not report the incident to the Collector or any other police officer camping at the site.

 

vii) The next eye-witness examined was Mathai Marandi (PW15). He identified accused Uma Kant Bhoi (A 13) in the TIP. He also identified accused Dara Singh (A1), Dipu Das (A2), Ojen @ Suresh Hansda and Mahadev. Out of these accused, Ojen Hansda was previously known to him, belonging to the same street of his village. In his evidence, it
is stated that he is native of Manoharpur village and the church (Place of occurrence) is located adjacent to his house. Deceased Graham Staines was well known to him as he used to visit his village for the last 15-16 years. He stated that Graham Staines last visited their village on 20.01.1999. He along with his two sons and other persons came there in two vehicles. He further stated that in the night of 22.01.1999, on hearing bursting sound, his wife woke him up. After coming out of the house, he found 40-50 persons gathered near the vehicles parked in front of the church and beating the vehicles by lathis. Those miscreants were holding lathis, axe, torches, bows and arrows. He heard cries raised by the minor sons of Graham Staines. He went near the vehicle, but 3 to 4 persons threatened him with lathis and, therefore, he retreated to his house. Thereafter, he went to the huts raised behind the church and called the persons staying there and went to the place of occurrence and found the vehicles set on fire. The miscreants put the straw inside the vehicle and set it on fire. They first set the empty vehicle on fire and thereafter the vehicle in which Graham Staines and his sons were sleeping.
Both the vehicles caught fire and were burnt. The witness identified accused Dara Singh (A1), Dipu Das (A2), Ojen @ Suresh Hansda and Mahadev as the miscreants present at the scene of occurrence and taking part in the offence. The witness further stated that Ojen Hansda and Mahendra Hembram belonged to his village. He had identified accused Uma Kanta Bhoi in the TIP conducted at Anandpur Jail as one of the persons setting fire on the vehicle. He further stated that after the vehicles were burnt, the miscreants blew whistle thrice and raised slogan “Jai Bajarang Bali” and “Dara Singh Zindabad”. However, it is relevant to note that his omission to mention all important aspects in his evidence including names of the appellants and his previous statements recorded by three Investigating Officers creates a doubt about his veracity.

 

viii) Joseph Marandi (PW23) was examined as another eye- witness to the occurrence. He belonged to village Manoharpur (Place of occurrence) and his house is located near the church. He identified accused Renta Hembram, Mahendra Hembram, Dara Singh and Rajat Kumar Dass @ Dipu. Out of these, two accused – Renta Hembram and Mahendra Hembram, were
previously known to him as they belonged to his village. He was examined by the local police on 02.02.1999, by the CID on 06.02.1999 and by the CBI on 03.06.1999. He stated that Graham Staines along with his two sons and other persons came to Manoharpur on 20.01.1999 on two vehicles. On 22.01.1999 deceased Graham Staines and his two sons slept in a vehicle parked in front of the church and other persons slept in the huts raised behind the church. In the mid-night, he heard the sound of beating of vehicles and woke up. When he came out of the house, 3 to 4 persons holding lathis and torches restrained and threatened him to assault if he proceeds further. Thereafter, he stood in a lane between his house and the church. He saw that about 20-22 persons had surrounded the vehicle in which deceased Graham Staines and his two sons were sleeping. Some people were setting the vehicle on fire by putting straw beneath it and igniting it by match sticks. After the vehicle caught fire and was burnt, somebody blew whistle thrice and they shouted slogan “Jai Bajarang Bali” and “Dara Singh Zindabad”. The other vehicle was not visible to the witness. The witness identified accused
Renta Hembram and Mahendra Hembram of his village who were among the miscreants. The witness also identified accused Dara Singh (A1) and accused Rajat Kumar Das @Dipu (A2) as the miscreants who among others had set fire to the vehicles. The witness further stated that the CBI officers had shown him 30-40 photographs out of which he identified the photographs of the accused Renta Hembram, Mahendra Hembram, Dara Singh (A1) and Rajat Kumar Das @ Dipu (A2). He is also a witness to the seizure of some articles seized from the place of occurrence and he has proved the seizure list. Admittedly, he did not disclose the names of these persons before either of the aforesaid three I.Os.

 

  1. ix) Raghunath Dohari (PW36), one of the eye-witnesses, identified accused Dara Singh, Harish Chandra, Mahadev and Turam Ho. His statement was not recorded by local police and the CID but it was recorded by the CBI on 04.12.1999. He belongs to village Manoharpur (place of occurrence). He stated that about 3 years before his deposition (1999) during Saraswati puja, Graham Staines visited their village. In the night, he heard the sound of beating. He got up and went to
    the church, where there was a gathering of 60-70 persons in front of the Church and they were beating the vehicles with sticks. They brought straw and set fire to the vehicles by burning straw. The witness identified accused Dara Singh (A1), Harish Chandra, Mahadev and Turam Ho as the miscreants who were in the gatherings and set fire to the vehicles. It is relevant to point out that apart from the police party, the Collector and other Police Officers though were camping at the place of occurrence, the fact remains that this witness did not report the incident either to the concerned Investigating Officer or to the Collector for about four months. However, the fact remains that he identified some of the appellants before the trial Court for the first time. As stated earlier, the legality or otherwise of dock identification, for the first time, would be dealt with in the later part of the judgment.

 

  1. x) Another eye-witness PW39, Soleman Marandi identified accused Dara Singh, Rajat Kumar Dass, Surtha Naik, Harish Chandra, Ojen Hansda and Kartik Lohar. Out of these accused, Ojen Hansda was known to him being resident of his
    His statement was not recorded by the local police but recorded by the CID on 03.02.1999 and by the CBI on 30.05.1999. He is a resident of village Manoharpur (place of occurrence). He stated that Graham Staines visited Manhorpur last time about 3 years back i.e. in the year 1999 after Makar Sankranti. He came there with his two sons and other persons in two vehicles. In the third night of his stay, he along with his two sons slept in the vehicle during night. The vehicles were parked in front of the church. In the midnight, the witness heard the sound of beating of vehicles. He came out of the house and went near the church. He found that about 30-40 persons had surrounded the vehicles and some of them were beating the vehicles in which Graham Staines along with his two sons was sleeping. He heard the cries of two sons of Graham Staines coming from the vehicle. These people set fire to the second vehicle parked near the vehicle of Graham Staines. When the vehicle caught fire, the vehicle moved towards the road. Three of those miscreants put a log of wood preventing the vehicle moving further. The witness identified accused Dara Singh as (A1), Rajat Kumar Das, Suratha Naik,
    Harish Mahanta, Ojen Hansda and Kartik Lohar amongst the accused persons in the dock as the miscreants who had set fire to the vehicles. Accused Ojen Hansda belonged to his village. The witness further stated that CBI showed him number of photographs among which he identified photographs of 5 persons who had taken part in the occurrence. He identified Dara Singh (A1) without any difficulty and it is also corroborated by the slogan he heard which miscreants raised in the name of Dara Singh.

 

  1. xi) The last eye-witness examined on the side of the prosecution is PW43, Lablal Tudu. He identified accused Dara Singh, Turam Ho, Daya Patra and Rajat Kumar Das. His statement was not recorded by local police and by the CID but recorded by the CBI on 03.06.1999. He is also a resident of Manoharpur village and his house is located near the Church (the place of occurrence). He stated that Graham Staines visited their village about three years before his deposition in the Court (January, 1999). He came there on Wednesday and stayed till Friday. On Friday night, Graham Staines and his two sons slept in a vehicle parked in front of the church. In
    the midnight, his mother (PW2) heard the beating sounds of vehicle and woke him up. He found 50-60 persons beating the vehicle by lathis in which Graham Staines and his two sons had slept. Three-four of them put the straw beneath the empty vehicle and lit the straw by matchsticks. After setting the empty vehicle ablaze, those persons put straw beneath the vehicle of Graham Staines and his two sons and ignited the same. Those two vehicles caught fire and began to burn. The witness identified four persons, namely, Dara Singh (A1), Turam Ho (A12), Daya Patra (A14) and Rajat Das (A2) as the persons beating the vehicle and setting on fire. The fact remains that admittedly he did not report the incident to his mother about what he had seen during the occurrence. He also admitted that there was a police camp from the next day of the incident. However, he did not make any statement to the State Police and only for the first time his statement was recorded by the CBI i.e., five months after the occurrence.

 

11) It is relevant to note that the incident took place in the midnight of 22.01.1999/23.01.1999. Prior to that, number of investigating officers had visited the village of occurrence.
Statements of most of the witnesses were recorded by PW 55, an officer of the CBI. In the statements recorded by various IOs, particularly, the local police and State CID these eye witnesses except few claim to have identified any of the miscreants involved in the incident. As rightly observed by the High Court, for a long number of days, many of these eye- witnesses never came forward before the IOs and the police personnel visiting the village from time to time claiming that they had seen the occurrence. In these circumstances, no importance need to be attached on the testimony of these eye- witnesses about their identification of the appellants other than Dara Singh (A1) and Mahendra Hembram (A3) before the trial Court for the first time without corroboration by previous TIP held by the Magistrate in accordance with the procedure established. It is well settled principle that in the absence of any independent corroboration like TIP held by judicial Magistrate, the evidence of eye-witnesses as to the identification of the appellants/accused for the first time before the trial Court generally cannot be accepted. As explained in Manu Sharma vs. State (NCT of Delhi) (2010) 6
SCC 1 case, that if the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence, which are lacking in the case on hand except for A1 and A3.

 

12) In the same manner, showing photographs of the miscreants and identification for the first time in the trial Court without being corroborated by TIP held before a Magistrate or without any other material may not be helpful to the prosecution case. To put it clear, the evidence of witness given in the court as to the identification may be accepted only if he identified the same persons in a previously held TIP in jail. It is true that absence of TIP may not be fatal to the prosecution. In the case on hand, (A1) and (A3) were identified and also corroborated by the evidence of slogans given in his name and each one of the witnesses asserted the said aspect insofar as they are concerned. We have also adverted to the fact that none of these witnesses named the offenders in their statements except few recorded by IOs in the course of investigation. Though an explanation was offered that out of
fear they did not name the offenders, the fact remains, on the next day of the incident, Executive Magistrate and top level police officers were camping the village for quite some time. Inasmuch as evidence of the identification of the accused during trial for the first time is inherently weak in character, as a safe rule of prudence, generally it is desirable to look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier TIP. Though some of them were identified by the photographs except (A1) and (A3), no other corroborative material was shown by the prosecution.

 

13) Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time. Learned Addl. Solicitor General, in support of the prosecution case about the photo identification parade and dock identification, heavily relied on the decision of this Court in Manu Sharma (supra). It was argued in that case that PW 2 Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78 went to Kolkata to get the identification done by picking up
from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the court, PW 2 Shyan Munshi refused to recognise him. In any case, the factum of photo identification by PW 2 as witnessed by the officer concerned is a relevant and an admissible piece of evidence. In para 254, this Court held:

 

“Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.”

It was further held:

 

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for
example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

It was further held that “the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath”.

14) In Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC 2562, the following conclusion is relevant:

“12. In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time”

15) In Jana Yadav vs. State of Bihar, (2002) 7 SCC 295, para 38, the following conclusion is relevant:

“Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.

It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible.

 

16) Mr. Tulsi, learned senior counsel for the accused heavily commented on the statements of eye-witnesses which, according to him, are contradictory to each other on material points. He highlighted that exaggerated and improved version of the incident makes it difficult to place implicit reliance on
the statements of any of these witnesses. He cited various instances in support of his claim.

  1. a) As regards the number of persons who have allegedly attacked the vehicles, it was pointed out that PW 23 – Joseph Marandi (brother of PW 15)/Christian/15 years at the time of incident) has stated that 20-22 persons surrounded the vehicle. On the other hand, PW 39 – Soleman Marandi and PW 10 – Nimai Hansda deposed that 30/40 persons surrounded the vehicle. PW 15 – Mathai Marandi found 40/50 persons were beating with lathis. PW 43 – Lablal Tudu (son of PW 2) deposed that 50/60 persons were beating the vehicle whereas PW 2 – Basi Tudu found 60 persons going towards the church. PW 3, Paul Murmu found 60/70 persons putting straw beneath the vehicle and setting fire. PW 36 – Raghunath Dohal mentioned that about 60-70 people gathered in front of the church.
  2. b) As regards straw being kept on the roof of the vehicle to prevent cold, PWs 3, 10, 11, 15, 36, 39, 43, 45 and 52 mentioned different versions.
  3. c) With regard to whether there was a light or not which is vital for identification of miscreants prior to vehicle caught fire, PW 2 has stated that Moon had already set and he identified Chenchu and A 7 in the light of lamp (dibri) put in the verandah. On the other hand, PW 5, who was 11 years old at the time of evidence has mentioned that it was dark night. PW 11 has stated that he had not seen any lamp burning in the verandah of neighbours but saw some miscreants due to illumination of fire. PW 43 has stated that there is no electricity supply in the village and stated that they do not keep light in verandah while sleeping inside the house during night.
  4. d) About chilly wintry night, PW3 has stated it was chilly night with dew dropping whereas PW15 has stated that he cannot say whether there was fog at the night of occurrence and PW 36 has stated it was wintry night and PW52 has stated fog occurs during the month of December and January and he could not say if there was any fog at the night of occurrence.

 

 

  1. e) With regard to clothes worn by attackers, PW36 has stated that A1 was wearing a Punjabi Kurta, A3 and A12 were wearing a banian. PW19 has stated that he saw 9 persons out of which 8 were wearing trousers and shirts and one person who was addressed as Dara was wearing a lungi and Punjabi Kurta. PW39 has stated that during winter season people usually come with their body covered. PW52 has stated that usually people wear winter clothing during December and January.

 

  1. f) With regard to the aspect whether the accused persons had covered their faces, PW 4 who is the informant has stated that the faces of the accused were covered. On the other hand, PWs 11, 15 and 36 have asserted that none covered their faces.

 

  1. g) As regard to who lit the fire, PW3 has stated that a short person lit fire. PW10 has mentioned that he did not see anyone whereas PW11 has stated that number of people set fire. PW32 has mentioned that there was no gathering near the vehicles when they caught fire. PW 36 has stated not seen any villager in between the house of the PW4 and the Church
    and PW39 has stated he had not seen any female near the place of occurrence.

 

  1. h) As regard to whether Nagin dance was over or not, PW 32 had deposed that when the vehicle caught fire, Nagin dance was being performed whereas PW 39 has deposed that dance continued throughout the night.

 

  1. i) Whether Nagin dance was visible from the place of occurrence, PW 3 has stated that it was not visible due to darkness. PW 4 has stated the distance between Nagin dance and Church is 200 ft. PW 5 has stated that Church was not visible from the place of Nagin dance and the distance was 200 ft. PW 6 has mentioned that Church was visible from the place of Nagin dance and distance was 200 ft and finally PW 32 has stated the church was visible from the place of Nagin dance.

 

  1. j) With regard to distance between place of occurrence and Nagin dance, PW 15 has mentioned the distance is 200 ft. PW 32 has stated that vehicles were visible from the place of Nagin dance, PW 36 has stated Nagin dance staged 10-12 houses apart from Church at front side whereas PW 39 has stated
    Nagin dance staged 4 houses apart from Chruch and PW 43 has stated that it was staged 5 houses apart from church and he admitted that he was not sure of the distance between church and the place of Nagin dance.

 

  1. k) With regard to their arrival at the place of occurrence, PW 11 has stated that PWs 4, 15 and 23 came to the place of occurrence an hour after the miscreants left the place whereas they deposed that they were present there from the beginning. PW 10 has stated that he woke up on hearing bursting and beating sound. PW 15 has deposed that he went to the huts behind the church and called PWs 10, 3 and others. PW 3 has stated that he was woken up by PW 10.

 

17) By pointing out these contradictions, Mr. Tulsi submitted that the presence of these witnesses becomes doubtful. However, if we see these witnesses through microscope, it is true that the above mentioned contradictions would be visible and clear but by and large they explained the prosecution case though they could not identify all the accused persons with clarity except Dara Singh (A1) and Mahendra Hembram (A3). By virtue of these minor contradictions, their testimony cannot
be rejected in toto. But, by and large, there are minor contradictions in their statements as demonstrated by Mr. Tulsi. In the face of the above-mentioned difference in the evidence of prosecution witnesses with regard to light, clothing, number of accused persons, fog, faces covered or not, it is not acceptable in toto except certain events and incidents which are reliable and admissible in evidence. CONFESSIONS:

 

18) It was submitted that confessions of various accused persons, namely, A9, A 11 and A 12 under Section 164 Cr.P.C. cannot be considered to be voluntary on account of the fact that all the co-accused persons were produced before the Magistrate from police custody and were remanded back to police custody. It was further highlighted that accused No. 14 was produced from police custody for recording his confession while A 13 made his statement when he was on bail and in no case the Magistrate ensured the accused persons that if they decline they would not be sent to police custody. It was further highlighted that illiterate accused persons cannot be expected to have knowledge of finest nuances of procedure. It
was pointed that besides all confessions being exculpatory and made after conspiracy ceases to be operative are inadmissible. Finally, it was stated that Section 164 Cr.P.C. requires faithful compliance and failure impairs their evidentiary value.

 

19) Section 164 Cr.P.C. speaks about recording of confessions and statements. It reads thus:

“164. Recording of confessions and statements. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any, time afterwards before the commencement of the inquiry or trial:

Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is bear, made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an
accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect.

 

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A.B.

Magistrate (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

 

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. ”

 

20) While elaborating non-compliance of mandates of Section 164 Cr.P.C., Mr. Tulsi, learned senior counsel appearing for the accused cited various instances.

 

(a) Accused No. 9, Rabi Soren, was arrested by the investigating agency and remanded to police custody for 7 days i.e. from 20.05.1999. It is their claim that on 18.05.1999, Accused No.9 made a statement under Section 164 Cr.P.C. and thereafter remanded back to police custody.
It was also pointed out that in his statement under Section 313 Cr.P.C. the accused person stated that he was beaten by the investigating agency.

 

(b) Another instance relates to Mahadev Mahanta, Accused No. 11 who was arrested on 01.07.1999 by the investigating agency and he was remanded to police custody. However, on 08.07.1999, Accused No. 11 made a statement under Section 164 Cr.P.C. PW 55, I.O. has stated that the statement of the accused was recorded under Section 164 Cr.P.C. that he was under police custody and he was remanded back to police custody. In his statement under Section 313 Cr.P.C. he also stated that he was beaten by the investigating agency.

 

(c) In the case of Turam Ho Accused No. 12, he was arrested on 13.05.1999 by the Investigating Agency and from 19.05.1999 to 23.05.1999 the accused person was in custody of the investigating agency. While so, on 21.05.1999, the accused No. 12 made a statement under Section 164 Cr.P.C and thereafter remanded back to police custody. It was pointed out that he also stated in his statement under Section 313 Cr.P.C. that he was beaten by the investigating agency.

(d) The next instance relates to Umakanta Bhoi, Accused No. 13 who refused to make a statement under Section 164 Cr.P.C prayed by I.O. to be put for 16.03.1999 for recording statement. It was directed to jail authority to keep the accused under calm and cool atmosphere. A 13 was produced from Judicial Custody for recording statement under Section 164 Cr.P.C. and he refused to make a statement. However, on 31.08.1999, he made a confessional statement.

(e) In the case of Dayanidhi Patra, Accused No. 14, on 21.09.1999, he was arrested by the Investigating Agency. On 24.09.1999, Learned ASJ granted police remand for 7 days i.e. on 01.10.1999 and that on that day A 14 made a statement under Section 164 Cr.P.C. It was pointed out that in his statement under Section 313 Cr.P.C. the accused person stated that he was beaten by the investigating agency.

 

21) Before analyzing the confessional statements of various accused persons and its applicability and the procedure followed by the Magistrate in recording the statement, let us consider various decisions touching these aspects.

22) In Bhagwan Singh and Ors. vs. State of M.P. (2003) 3 SCC 21, while considering these issues, it was held

“27……The first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of confession by the prosecuting agency (see State of U.P. v. Singhara Singh, AIR 1964 SC 358). It was also held by this Court in the case of Shivappa v. State of Karnataka, (1995) 2 SCC 76 that the provisions of Section 164 CrPC must be complied with not only in form, but in essence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

  1. It has also been held that the Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. He should be granted sufficient time for reflection. He should also be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. Unfortunately, in this case, the evidence of the Judicial Magistrate (PW 1) does not show that any such precaution was taken before recording the judicial confession.
  2. The confession is also not recorded in questions-and- answers form which is the manner indicated in the criminal court rules.
  3. It has been held that there was custody of the accused Pooran Singh with the police immediately preceding the making of the confession and it is sufficient to stamp the confession as involuntary and hence unreliable. A judicial confession not given voluntarily is unreliable, more so when such a confession is retracted. It is not safe to rely on such judicial confession or even treat it as a corroborative piece of evidence in the case. When a judicial confession is found to be not voluntary and more so when it is retracted, in the absence of other reliable evidence, the conviction cannot be based on such retracted judicial confession. (See Shankaria v. State of Rajasthan, (1978) 3 SCC 435 (para 23)”

 

23) In Shivappa vs. State of Karnataka (1995) 2 SCC 76, while reiterating the same principle it was held:-

 

“6. From the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 CrPC, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 CrPC. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and its non-

compliance goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self-interest in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of sub-section (2) of Section 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement and be given the assurance
that even if he declined to make the confession, he shall not be remanded to police custody.

  1. The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a `voluntary’ statement within the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with.

 

  1. From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did not disclose to the appellant that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by anyone to make the confession. PW 17 stated during his deposition in court: “I have not stated to the accused that I am a Magistrate” and further admitted: “I have not asked the accused as to whether the police have induced them (Chithavani) to give the statement.” The Magistrate, PW 17 also admitted that “at the time of recording the statement of the accused no police or police officials were in the open court. I cannot tell as to whether the police or police officials were present in the vicinity of the court”. From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his deposition recorded in court it is further revealed that the Magistrate did not lend any assurance to the appellant that he would not be sent back to the police custody in case he did not make the confessional statement. Circle Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of the Circle Police Inspector and the police station are situated in the same premises. No contemporaneous record has been placed on the record to show that the appellant had actually
    been kept in the sub-jail, as ordered by the Magistrate on 21-7-1986 and that he was out of the zone of influence by the police keeping in view the location of the sub-jail and the police station. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22-7-1986 before the Magistrate. That apart, neither on 21-7-1986 nor on 22-7-1986 did the Munsif Magistrate, PW 17 question the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. It appears to us quite obvious that the Munsif Magistrate, PW 17 did not make any serious attempt to ascertain the voluntary character of the confessional statement. The failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the confession, impels us to hold that the evidence on the record does not establish that the confessional statement of the appellant recorded under Section 164 CrPC was voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary nature of the confession has left much to be desired and has detracted materially from the evidentiary value of the confessional statement. It would, thus, neither be prudent nor safe to act upon the confessional statement of the appellant…..”

24) In Dagdu and Others vs. State of Maharashtra, (1977) 3 SCC 68, the following paragraph is relevant:-

“51. Learned Counsel appearing for the State is right that the failure to comply with Section 164(3) of the Criminal Procedure Code, or with the High Court Circulars will not render the confessions inadmissible in evidence. Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a confession is otherwise relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If, therefore, a confession does not violate any one of the conditions operative under Sections 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the
Court may refuse to act upon the confession even if it is admissible in evidence. That shows how important it is for the Magistrate who records the confession to satisfy himself by appropriate questioning of the confessing accused, that the confession is true and voluntary. A strict and faithful compliance with Section 164 of the Code and with the instructions issued by the High Court affords in a large measure the guarantee that the confession is voluntary. The failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statements.”

25) Davendra Prasad Tiwari vs. State of U.P. (1978) 4 SCC 474, the following conclusion arrived at by this Court is relevant:-

 

“13….. It is also true that before a confessional statement made under Section 164 of the Code of Criminal Procedure can be acted upon, it must be shown to be voluntary and free from police influence and that the confessional statement made by the appellant in the instant case cannot be taken into account, as it suffers from serious infirmities in that (1) there is no contemporaneous record to show that the appellant was actually kept in jail as ordered on September 6, 1974 by Shri R.P. Singh, Judicial Magistrate, Gorakhpur, (2) Shri R.P. Singh who recorded the so called confessional statement of the appellant did not question him as to why he was making the confession and (3) there is also nothing in the statement of the said Magistrate to show that he told the appellant that he would not be remanded to the police lock-up even if he did not confess his guilt. It cannot also be gainsaid that the circumstantial evidence relied upon by the prosecution must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.”

26) In Kalawati & Ors. vs. State of Himachal Pradesh, 1953 SCR 546 at 631, this Court held:

“…In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to
consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right.”

27) In State thr. Superintendent of Police, CBI/SIT vs. Nalini and Others (1999) 5 SCC 253 at 307, the following paragraphs are relevant which read as under:-

 

“96. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act? While considering that aspect we have to bear in mind that any confession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used.

  1. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co-accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the non obstante clause contained in Section 15(1) of TADA, under what provision can a confession of one accused be used against another co- accused at all? It must be remembered that Section 15(1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a co- accused, abettor or conspirator tried in the same case.

 

  1. Sir John Beaumont speaking for five Law Lords of the Privy Council in Bhuboni Sahu v. R., AIR 1949 PC 257 had made the following observations:

 

“Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of `evidence’ contained in Section 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.”

 

  1. The above observations had since been treated as the approved and established position regarding confession vis- `-vis another co-accused. Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P., AIR 1952 SC 159 had reiterated the same principle after quoting the aforesaid observations. A Constitution Bench of this Court has followed it in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184.”

 

28) In State of Maharashtra vs. Damu (2000) 6 SCC 269, the same principles had been reiterated which read as under:-

 

“19. We have considered the above reasons and the arguments addressed for and against them. We have realised that those reasons are ex facie fragile. Even otherwise, a Magistrate who proposed to record the confession has to ensure that the confession is free from police interference. Even if he was produced from police custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of the police to have the confession in his own way by telling the Magistrate the true facts.

  1. We may make it clear that in Kashmira Singh this Court has rendered the ratio that confession cannot be made the foundation of conviction in the context of considering the utility of that confession as against a co-accused in view of
    Section 30 of the Evidence Act. Hence the observations in that decision cannot be misapplied to cases in which confession is considered as against its maker. The legal position concerning confession vis-`-vis the confessor himself has been well-nigh settled by this Court in Sarwan Singh Rattan Singh v. State of Punjab as under: “In law it is always open to the court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.”

 

This has been followed by this Court in Kehar Singh v. State (Delhi Admn.)”

 

29) The following principles emerge with regard to Section 164 Cr.P.C.:-

 

(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.

 

(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.

(iv) The maker should be granted sufficient time for reflection

(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.

(vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.

(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.

(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.

(x) Confession of a co-accused is a weak type of evidence.

(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.

Judicial Magistrates (PWs-29 & 34)

30) Ashok Kumar Agrawal, PW29 and Tojaka Bharti, PW34, Judicial Magistrates recorded the confessional statements of some of the accused. Judicial Magistrate, PW29 recorded the confessional statement of Rabi Soren and Turam Ho and PW34, Judicial Magistrate recorded the confessional statement of Mahadev Mahanta, Uma Kant Bhoi and Dayanidhi Patra. It is the claim of Mr. K.T.S. Tulsi, learned senior counsel for the accused, that the evidence of PW29 and PW34, Judicial Magistrates shows that they were blissfully unaware of the stringent responsibility cast on them by Section 164 Cr.P.C. According to him, their evidence create an impression that they were not aware of the difference between the police custody and judicial custody nor do they seem to understand the significance of Section 164 Cr.P.C. He pointed out that why the first four pages in case of each of the accused persons is not signed by the accused is not explained. They neither
asked any searching questions regarding the nature of custody either from the accused persons or from police nor did they scrutinize the records to ascertain the same from remand orders. He also pointed out that none of the accused who have confessed had been given the assurance that if they refuse to make any confession, they would not be remanded to police custody. This assurance is required for an accused to make an informed decision being fully aware of the consequences of refusing.

 

31) It is seen from the evidence of PW29, who recorded the confession of Rabi Soren, that at the relevant time the accused was in the custody of CBI and from that custody he was produced before the Addl. Chief Judicial Magistrate on 18.05.1999. Though PW29 had asked the accused many things about the voluntariness, the High Court, on analysis of his entire evidence, came to a conclusion that only a routine statutory certificate as required under Section 164 Cr.P.C. was given by him. The High Court also pointed out that he did not caution that if the accused Rabi Soren refused to make any confession, he would not be remanded to C.B.I. or Police
custody. He was not informed that if he confessed, such confession may be used in evidence against him and on that basis there was possibility of his being sentenced to death or life imprisonment. It was also pointed out that his body was not checked to find out as to whether he was subjected to torture when he was in police custody. It was also pointed out by the High Court that five hours’ time was given for reflection during which period he was in the custody of his Bench Clerk in his Chamber. PW29, after recording confessional statement of Rabi Soren on 18.05.1999, again remanded him to the custody of police, i.e. C.B.I. till 20.05.1999. This is clear from the evidence of PW55 (I.O.). It is relevant to point out that under sub-section (3) of Section 164 Cr.P.C. that if any accused refuses to make any confessional statement, such Magistrate shall not authorize detention of the accused in police custody. Remanding Rabi Soren to Police custody after his statement was recorded under Section 164 Cr.P.C. is not justified. As rightly observed by the High Court, possibility of coercion, threat or inducement to the accused Rabi Soren to make the confession cannot be ruled out. In the same
manner, confession of another accused Turam Ho was also recorded by the very same Magistrate. Here again, the High Court pointed out that he was not cautioned that if he made any confession, same may be used against him in evidence and on that basis he may be sentenced to death or imprisonment for life. Equally he was not cautioned by PW29 that if he refused to make the confessional statement, he would not be remanded to police custody. It is further seen that both of these accused, in their confessional statements, made exculpatory statements.

 

32) PW34, Judicial Magistrate, recorded the confessional statement of accused Mahadev Mahanta on 08.07.1999 immediately after his production before him from the police custody. PW34 was directed by the Addl. C.J.M. to record the confessional statement of Mahadev Mahanta. It was noted that he was given only 10 minutes’ time for reflection after his production from police custody. The other accused who made the confessional statement is Dayanidhi Patra whose statement was recorded by PW34. The High Court, on corroboration of the confessional statement, had found that
the entire confessional statement is exculpatory and he also retracted from the confession. It was further found that this confessional statement was made long after the charge-sheet was filed i.e. on 22.06.1999. The analysis of evidence of PWs 29 & 34 – Judicial Magistrates shows that many of the confessional statements were recorded immediately after production of the maker after long CBI custody and in some cases after such statements were made and recorded by the Judicial Magistrate, the maker was remanded to police custody. Though the Magistrates have deposed that the procedure provided under Section 164 Cr.P.C. has been complied with, various warnings/cautions required to be given to the accused before recording such confession, have not been fully adhered to by them.

 

33) Apart from the strong observation of the High Court about procedural lapse on the part of PWs 29 & 34, we also verified their statements and requirements in terms of Section 164 Cr.P.C. In the certificate, there is no specific reference about the nature of the custody from which these persons were produced nor about the assurance that they would not
be remanded to police custody if they declined. We have already pointed out that Section 164 Cr.P.C. requires strict and faithful compliance of sub-sections 2 to 4, the failure to observe safeguards not only impairs evidentiary value of confession but cast a doubt on nature and voluntariness of confession on which no reliance can be placed. As rightly observed by the High Court, no exceptional circumstances could be brought to our notice by the prosecution in respect of the appellants other than A1 and A3.

 

34) It was next argued that the incident could not have been happened as suggested by the prosecution. According to the learned senior counsel for the accused the reason of possibility of the incident which took place in the dead of the night as a result of the accident from burning of the stove etc. for generating heat on cold wintry night cannot be ruled out. In support of the above contention, he pointed out several circumstances which are inconsistent with the fire starting by arson from outside. On going through the entire materials, we are unable to accept the said contention. Though we noticed several inconsistencies in the prosecution evidence and the
accused persons were not specifically identified except A1 and A3, the fact remains that the Van in which Graham Staines and his two children were sleeping were set on fire and burnt to death due to the cause of the miscreants. In other words, death of these three persons by setting fire by the miscreants cannot be ruled out. There is no material to conclude that the fire emanated from inside of the vehicle and then spread to rest of the vehicle after the fuel tank caught fire. There is no basis for such conclusion though the prosecution witnesses could not pin-point and identify the role of each accused.

 

35) Another question which we have to consider is whether the Police (CBI) had the power under the Cr.P.C. to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the Cr.P.C. in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings
being per se illegal, the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11-Judge Bench decision of this Court in The State of Bombay vs. Kathi Kalu Oghad and Ors., (1962) 3 SCR 10 = AIR 1961 SC 1808. This larger Bench was constituted in order to re-examine some of the propositions of law laid down by this Court in the case of M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077. After adverting to various factual aspects, the larger Bench formulated the following questions for consideration:

 

“2. … … On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the production of the specimen handwritings – Exs. 27, 28, and 29 – the accused could be said to have been ‘a witness against himself’ within the meaning of Article 20(3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. … …

  1. … … The main question which arises for determination in this appeal is whether a direction given by a Court to an accused person present in Court to give his specimen writing and signature for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution.

 

The following conclusion/answers are relevant:

 

  1. … … Furnishing evidence” in the latter sense could not have been within the contemplation of the Constitution- makers for the simple reason that – though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. … ….
  2. … … When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a ‘personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression ‘to be a witness’.
  3. … … A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.
  4. In view of these considerations, we have come to the following conclusions :-

 

(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

 

(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not ‘compulsion’. (3) ‘To be a witness’ is not equivalent to ‘furnishing evidence’ in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused.

 

(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression ‘to be a witness’.

 

(5) ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

 

(6) ‘To be a witness’ in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

 

(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.”
In view of the above principles, the procedure adopted by the investigating agency, analyzed and approved by the trial Court and confirmed by the High Court, cannot be faulted with. In view of oral report of Rolia Soren, PW 4 which was reduced into writing, the evidence of PW 23, two letters dated 01.02.2002 and 02.02.2002 addressed by Mahendra Hembram (A3) to the trial Judge facing his guilt coupled with the other materials, we are unable to accept the argument of Mr. Ratnakar Dash, learned senior counsel for Mahendra Hembram (A3) and we confirm the conclusion arrived by the High Court.

 

Additional factors-Mahendra Hembram (A3).

 

36) Coming to the role of Mahendra Hembram A3, the prosecution very much relied on his letters dated 01.02.2002 and 02.02.2002 addressed to the Sessions Judge wherein he confessed his guilt. Though a serious objection was taken about the admissibility of these two letters, the contents of these two letters addressed to the Sessions Judge in the course of trial lend ample corroboration to his identification before the trial Court by Joseph Marandi, PW 23. Even in his
case, it is true that there was no TIP conducted by Judicial Magistrate. However, inasmuch as when he was facing trial, he sent the above-mentioned two letters to the Sessions Judge which lend corroboration to his identification in the trial court by PW 23 and rightly observed by the High Court, the same can be safely relied upon. The evidence reveals that Rolia Soren (PW 4) accompanied by PW 23 soon after the incident proceeded to inform the same to the police and finding the police to have already left for Manoharpur, returned back and finally on the oral report of PW 4, the Officer In-charge of Anandapur P.S. (PW 52) prepared FIR (Ext. 1/1) and registered a case under Sections 147, 148, 435, 436 and 302 read with 149 IPC against Dara Singh (A 1) and five others. The prosecution has also relied on a letter (Ext.2 after it was translated to English marked as Ext. 49) said to have been addressed by Mahendra Hembram (A3) to Kapura Tudu (PW 9) which, according to the prosecution, contains his admission of involvement in the incident.

37) An excerpt from the letter of Mahendra Hembram may be translated into English as under:-

“You may be knowing the Manoharpur incident. No one ever thought that such a thing will happen in the village. I had not told any of my family members that such a work will be done. Dara Singh stayed in our house and did the work. I also did the work as I had quarrel with the `Jisu’. I had not disclosed the identity of Dara Singh even to my mother. The conspiracy to kill Manoharpur `Jisu’ was hatched at HOROHND for which I took leave during training period and stayed in our house with Dara Singh for five days and went to the forest thereafter. The villagers know that I have done this work as I have got cordial relationship with Dara Singh.”

This is a confessional statement of accused Mahendra Hembram (A3) inculpating himself and Dara Singh (A1).

38) Accused Mahendra Hembram, in his letter dated 10.02.1999 (Ex. 2) addressed to his sister-in-law, Kapura Tudu (PW9), confessed that he along with Dara Singh burnt the `Jisu’ (Christian Missionary). All the ocular witnesses have testified that after setting fire to vehicles and burning Graham Staines and his two sons alive, the miscreants raised slogans “Jai Bajrang Bali” and “Dara Singh Zindabad”.

39) Joseph Marandi, PW23 has testified that accused Mahendra Hembram amongst others set fire to the vehicles. Mahendra Hembram, in his statement recorded under Section 313 Cr.P.C., on 04.02.2002 has stated that he may be the
short statured person. Accused Mahendra Hembram in his letter dated 10.02.1999 (Ex. 2) addressed to his sister-in-law, Kapura Tudu (PW9) had confessed to have burnt the Christian missionary along with Dara Singh. In the course of trial, he filed petitions on 01.02.2002 and 02.02.2002 pleading guilty and confessing to have set fire to the vehicles. In his statement recorded under Section 313 Cr.P.C. on 04.02.2002, he has admitted to have set fire to the vehicles and in his statement recorded under Section 313 Cr.P.C. on 24.03.2003 has admitted to have filed petitions pleading guilty and to have stated in his earlier examination under Section 313 Cr.P.C. that he had set fire to the vehicles. There is no impediment in relying on a portion of the statement of the accused and finding him guilty in consideration of the other evidence against him as laid by the prosecution.

 

40) It is clear that the letters marked as (Ex. 213) were written by Mahendra Hembram though denied by him, contents of the said two letters amount to confession, or in any event admission of important incriminating materials. He had been identified before the trial Court by Joseph Marandi (PW23) as
a participant in the crime. As rightly observed by the High Court, contents of these two letters lend support to the evidence in identification before the trial Court for the first time as narrated by PW23. In this way, his identification for the first time in the trial Court is an exceptional case and even in the absence of further corroboration by way of previously held TIP, his involvement in the crime is amply corroborated by the above said letters written by him.

 

41) Learned Addl. Solicitor General has pointed out that insofar as Mahendra Hembram is concerned, three types of evidence are available against him: a) Confession; b) testimony of eye-witnesses/identification in court/PW 23 Joseph Marandi; and c) absconding of the accused. Learned Addl. Solicitor General while advancing his argument besides referring to the evidence of PW 23 laid more emphasis on the statement of the appellant. Though an objection was raised as to the manner in which the trial Judge questioned A3 with reference to contents of his letters dated 01.02. 2002 and 02.02.2002, it is relevant to point out that when the person facing trial insisted to look into the contents of his letters, the
presiding officer concerned has to meet his requirement subject to the procedure established. The learned trial Judge accepted the entire contents of the admission made by A3 and affording reasonable opportunity and by following the appropriate procedure coupled with the corroborative evidence of PW 23, upheld his involvement and participation in the crime along with A1 which resulted in rioting, arson and murder of three persons. Though learned senior counsel appearing for A3 was critical on relying upon the letter Ex. 49 said to have been written by A3 to his Sister-in-law PW 9, it shows that A3 confessed to have participated in the incident along with A1. It is seen that the entire contents of letter were used by the trial Judge which was rightly accepted by the High Court. The other circumstance urged by the prosecution was that A3 absconded soon after the incident and avoided arrest and this abscondence being a conduct under Section 8 of the Indian Evidence Act, 1872 should be taken into consideration along with other evidence to prove his guilt. The fact remains that he was not available for quite sometime till he was arrested which fact has not been disputed by the defence
counsel. We are satisfied that before accepting the contents of the two letters and the evidence of PW 23, the trial Judge afforded him required opportunity and followed the procedure which was rightly accepted by the High Court. Additional factors – Dara Singh (A1)

 

42) In addition to what we have highlighted and elicited from the materials placed, it is relevant to point out that all the eye- witnesses examined by the prosecution consistently stated that during occurrence the miscreants raised slogans in the name of Dara Singh as “Dara Singh Zindabad”. The story of this slogan was also mentioned in the first information report lodged soon after the occurrence. This slogan is in the name of Dara Singh, corroborates the identification before the trial Court for the first time. In addition to the same, some of the witnesses identified Dara Singh by photo identification. We have already highlighted the evidentiary value of photo identification and identifying the person in the dock. In other words, we have pointed out that those materials coupled with the other corroborative evidence are permissible. In addition
to the same, all the witnesses mentioned about the blowing of whistle by Dara Singh.

 

43) Though the trial Court awarded death sentence for Dara Singh, the High Court after considering entire materials and finding that it is not a rarest of rare case, commuted the death sentence into life imprisonment. The principles with regard to awarding punishment of death have been well settled by judgments of this Court in Bachan Singh vs. State of Punjab AIR 1980 SC 898, Machhi Singh vs. State of Punjab (1983) 3 SCC 470, Kehar Singh vs. State (Delhi Administration) (1988) 3 SCC 609. It is clear from the above decisions that on conviction under Section 302 IPC, the normal rule is to award punishment of life imprisonment and the punishment of death should be resorted to only for the rarest of rare cases. Whether a case falls within the rarest of rare case or not, has to be examined with reference to the facts and circumstances of each case and the Court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life
inadequate and calls for death sentence. In the case on hand, though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity. All these aspects have been correctly appreciated by the High Court and modified the sentence of death into life imprisonment with which we concur.

 

44) Though an argument was advanced that only after the intervention of PW 55, I.O. from CBI, several persons made a confessional statement by applying strong arm tactics that were used by the investigating agency, the entire case of the prosecution has to be rejected, we are unable to accept the same for the reasons stated by the trial Court and the High Court. We have ourselves in the earlier paras adverted to the fact that some of the witnesses did not mention anything about the incident to the local police or the District Magistrate or the higher level police officers who were camping from the next day of the incident. However, regarding the fresh steps taken by the Officer of the CBI, particularly, the efforts made
by PW 55, though certain deficiencies are there in the investigation, the same cannot be under estimated. Likewise, it was pointed out that young children were being coerced into being witness to the occurrence whereas the elder family members were never joined as witness by the prosecuting agency. It is true that the prosecution could have examined elders and avoided persons like PW 5 who was a minor on the date of the incident. We have already discussed about the veracity of witnesses and found that certain aspects have been established and accepted by the trial Court as well as the High Court.

 

45) Finally, insofar as the appeals filed by the CBI against the order of acquittal by the High Court in respect of certain persons, it was pointed out that when two views are possible, the one in favour of the accused should be accepted. It is true that the presumption of innocence is a fundamental principle of criminal jurisprudence. Further, presumption of innocence is further reinforced, reaffirmed and strengthened by the judgment in his favour. [Vide State of Uttar Pradesh vs. Nandu Vishwakarma & Ors., (2009) 14 SCC 501 (Para 23),
Sambhaji Hindurao Deshmukh & Ors. Vs. State of Maharashtra, (2008) 11 SCC 186 (Para 13), Rahgunath vs. State of Haryana, (2003) 1 SCC 398 (Para 33) and Allarakha K. Mansuri vs. State of Gujarat, (2002) 3 SCC 57 (Paras 6 & 7)]. In the earlier paragraphs, we have highlighted the weakness and infirmities of the prosecution case insofar as acquitted accused who are all poor tribals. In the absence of definite assertion from the prosecution side, about their specific role and involvement, as rightly observed by the High Court, it is not safe to convict them. We entirely agree with the reasoning and conclusion of the High Court insofar as the order relating to acquittal of certain accused persons. Conclusion

 

46) In a country like ours where discrimination on the ground of caste or religion is a taboo, taking lives of persons belonging to another caste or religion is bound to have a dangerous and reactive effect on the society at large. It strikes at the very root of the orderly society which the founding fathers of our Constitution dreamt of. Our concept of secularism is that the State will have no religion. The State
shall treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual right of religion, faith and worship.

 

47) The then President of India, Shri K R. Narayanan once said in his address that “Indian unity was based on a tradition of tolerance, which is at once a pragmatic concept for living together and a philosophical concept of finding truth and goodness in every religion”. We also conclude with the hope that Mahatma Gandhi’s vision of religion playing a positive role in bringing India’s numerous religion and communities into an integrated prosperous nation be realised by way of equal respect for all religions. It is undisputed that there is no justification for interfering in someone’s belief by way of `use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other.

 

48) The analysis of entire materials clearly shows that the High Court is right in arriving at its conclusion. In the case on hand, there is no material to prove conspiracy charge against any of the accused. However, as pointed out by the High Court which we also adverted to in the earlier paras even in
the midst of uncertainties, the witnesses have specified the role of (A1) and (A3) which we agree with and confirm the same and we also maintain the conviction of the appellant Dara Singh (A1), Mahendra Hembram (A3) and the sentence of life imprisonment imposed on them. In the same way, in the absence of acceptable materials and in view of the various infirmities in the prosecution case as pointed out by the High Court, we confirm the order of acquittal of others who are all poor tribals.

49) In the result, Criminal Appeal No. 1366 of 2005 filed by Rabindra Kumar Pal @ Dara Singh, Criminal Appeal No. 1259 of 2007 filed by Mahendra Hembram and Criminal Appeal Nos. 1357-1365 filed by CBI are dismissed.

(P. SATHASIVAM) …………………………………….J.

(DR. B.S. CHAUHAN) NEW DELHI

IMG_0593

  • Prachi Singh Advocate
  • Supreme Court of India

Prachi Singh Advocate B.com,LLB,MBA is practicing Lawyer/Attorney at Supreme Court of India,Delhi High Court and all Districts Courts.She is regularly drafting,Advising and contesting the matters related to Anticipatory Bail,Bail Matters,Criminal Writ Petition in High Courts,Criminal Writ Petition in Supreme Court,Criminal Appeal,Criminal Revision Petition,Quashing of Charge sheet,Quashing of FIR,Cancellation of Bail,Criminal Defence Lawyer,quashing of Proclaimed offender orders,Cases related Cyber Crimes,Cases related Cheating,Cases related Property fraud,Banking fraud cases,perjury cases,criminal defamation,Sexual Harassment Cases and all Criminal Cases..

PROFESSIONAL MEMBERSHIP WITH

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-Delhi High Court Bar Association
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-Indian Council of Arbitration (ICA)
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  • Phone: +91-11-40513913,9811114265

        V.K. Singh

v.k.singh_advocate_1401182791_06

 

Advocate, Supreme Court of India

Year of Professional Experience.

More than 15 Years.

PROFESSIONAL AFFILIATIONS / MEMBERSHIPS

  • Member of New Delhi Bar Association, New Delhi.
  • .Member of Delhi Bar Association ,Tis Hazari,Delhi.
  • Member of Saket Bar Association, Saket, New Delhi.
  • Member of Delhi High Court Bar Association,[DHCBA], New Delhi.

Mr. Singh is the founder member and the Managing partner of the firm, V.K.Singh & Co.. (Law Offices). He has the vide expertise over the matters related to Civil & Commercial Disputes, Family and Matrimonial Disputes, Consumer Disputes and Recovery of Debts for Banking & Financial Institutions and Alternate Dispute Resolution. He is known for his self developed and distinguished negotiation skills, extempore arguments. His experience covers a wide range of litigations, legal consultancy and arbitrations. He possesses superb drafting skill, well acclaimed consummate and effective argumentation skill and unparallel client counseling skill.

Criminal Practice Experience.

Mr.Singh has vast knowledge in Criminal Practice and advised, drafted and contested the matters of his respective clients in Bail Matters ,Dowry Cases, Narcotic Drug Cases (NDPS Cases),Criminal Trial ,Rape Cases or Sexual Harassment Cases, Fraud Cases ,Cheating Cases,EOW Cases, Anti corruption Cases, Criminal Writ Petition, Criminal Revision ,Criminal Appeal, Criminal SLP etc. .in  Hon’ble Supreme Court of India ,High Courts and all District Courts in India.

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