KISHAN CHAND MANGAL v. STATE OF RAJASTHAN (2)

Citation: [1983] 1 S.C.R. 569

Court: Supreme Court of India

Bench: D.A. DESAI, A.P. SEN

Case summary

boWever, held that the evidence of the two mo1bir1 was reliable· and was amply · corroborated by the ·recovery of the Currency notes as well as the presence of phenolphthalein powder on the hands or the appellant.

Judgment text

_ S69 ..... j(ISHAN CHAND MANGAL • v. '. '/ STATE OF RAJAS:rHAN October 14, 1982 [D. A. DESAI AND A. P. SEN, JJ. ] . ' E1idence-Of persons belonging to office-wise, wealth-wise' lower strata L of_society-Rejection on sole groMJ_ ofhumble origin-Not justified• . Evidence-Witnesse. 1 independent of police inf/~enc~Empfoyees of nationalised banks and institutioru receiving grants from gover'f111ent-Position of. \ - / The appellant, a Factory Inspector, visited the complainant's factory and · demanded an illegal ·gratification of ~s. 150/- on the·threat of entangling him in · some legal proceedings. The complainant, who wa1 not inclined to give the bribe,. made a written complaint to the Deputy Superintendent of Police. Anti-Corrup-· • tion Department (DySP) requesting for suitable actiOn~ A_ trap was arranged by smearing IS currency notes of the denomination of Rs. 10/- each with phenolph- \ th3.

lein powder·and, on the direction of the DySP, two motbirs were requested to accompany the" raiding p_arty and to ·watch what happens. The motbir1 wetit ·• along with the complainant to the residence of the appelJant and witnessed the acceptance of the· money given to him ·by the com. plaicant, the subsequent. . search for thC recovery ofthe currency Dotes from the appellant,. the dipping of his hands in sodium carbonate solution and the . consequent change in the colour . ) · of tho hands into pink, • · .. By the time the c3. se"came up for trial, the complainant was dead. In the absence of the evidence of the complainant, the trial Judge noted that the first de~nd of the bribe at the factory of the complainant had not been proved. ,He, ·'. boWever, held that the evidence of the two mo1bir1 was reliable· and was amply · corroborated by the ·recovery of the Currency notes as well as the presence of phenolphthalein powder on the hands or the appellant.

'The trial_,Judge'~nviCtCd'I and sentenced the appellant under_s. 161, 1. P. C. and s. S(l)(d) read w:ith s. 5(2)' ·i of the Prevention of Corruption Act, 1947. - ' . . The High Court which examined the ~vrdence of the 'molbir1 agreed with I the findings recorded by the trial Court and 4ismissed the appeal filed by the appetliint. ,. One of the contentions urged on behalf of the ·appellant was that ! , once the complainant was not available· to give evidence not· only of the first demand but also on the payment ·dr bribe PUrSuant to the demand, the evidence ot the two morbirs had assumed cotlsiderable importance and it Was unwise and · dangerous to pJace implic! t ,reliance on their testimODJ'. to convict the appellant . - / 570 SUPRBMB COURT 'REPORTS (19831 1 s. c. R. ··as (i) both the motbirs were petty clerks and (ii) by virtue of ·their scrvi~, they were likely to be under pOiice influence.. · . , Dismissing the appeal;, • /. .

' HELD : Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons. In a country where renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would·. be the travesty of truth if persons coming from bumble origin and belongin"g to office-wise, wealthwise lower strata of society are to be disbelieved or rejected as unworthy of belief Solely on th_e ground of their bumble position in society. (577-P] Khairatl Lal v. The State, (1965) l belhi Law Times, J62'overruled. · / J - In the "instant case it is factually not correct to say that both the motbir. J are petty clerks : one was serving as a clerk in a nationalised bank and the other was a teacher in a lniddle school. The testimony or the' motblrJ which had been . accepted as Wholly reliable by the trial Judge and the High Court cannot be rejected on the sole ground that they are petty clerks. (577-E: 578-A-B] · . ' . It nlay be. that officers.

of Anti-Corruption Depart~eni h3ve jtirisdiction to inVestigate lapses on the part of clerks_ in nationalised banks. It is not clear whether the motbir who was a teacher was a government cmploYee or the scboOI • itself was a government school. It' may be that the school was· receiving grant but. if all institutions which receive grant from government are styled as govCmi:nent departments and have to be treated as fallirig under the police infiueDce then the net will have tO be spread so wide as not to exclude anyOne . • as independent of poliCc influence. There is no justification in the submission that the two motbirJ were . persons not likely to ~ i0;depcndent of poJice influence. ·[578-D-EJ · · \. . ' Raghhir Singh v. State ofPunjab, AIR 1976 S. C. 91, distinguished• • CRIMINAL APPELLATE Jua1so1cnoN : Crimi11aJ Appea~ No. 4s of 1980 · - F. From the Judgment and Order dated the 17th October, 1979 of. -. the High Court of Rajasthan in S. B. Criminal 'Appeal No. 39 or· 1977.

·' Frank Anthony and S. K. Jain,' for the Appellant. . ' . f BadTi Dass Sharma for the Respondent. Tbe Judgment of the Court was delivered by . , DESAl;J. Appellant Kishan Chand Mangal was convicted by the learned· Special Judge (A. C. D. Cases), Jaipur, Rajasthan, for . 571•. KISHAN CHAND ·v.. RAJASTHAN (Desai, J. ) Appellant at the relevant time ·was serving as Factory Inspector,. Ajmer and in that capacity he accompanied by his friend paid a visit on November 20, 1974, to the factory named 'Krishna Industries' whose proprietor was one Rajendra Dutt. Appellant· said that his · vi. sit ·being after a lapse of one and a half year, the proprietor should , pay,him pocket money. Rajend~a E>utt replied that his establishment was not covered by the Factories Act and showed disinclination to grease the_palms of the appellant. However, appellant persisted . in his demand and· told Rajendra Dutt if he did not. pay Rs. 150/- he . was likely to be entangled in some· legal proceedings.

So saying appellant and his companion left.. Rajendra Dutt was not inclined to give the bribe demanded from him a:nd,. therefore, ·on November 22, 1974; he contacted Dy. S. P. , A. C. D. , Ajmer, P. W. 70Mahavif Prasad and gave a written 'complaint Ext. P-12 complaining about the demand of ·illegal gratification by the appellant requesting for taking suitable action in the matter. · He also produced 15 currency notes each· of the denomination of Rs. 10/-. P:W. 7 Dy. S. P. Mahavir Prasad directed ·P. W. 3 Prahlad··Narayan to bring two. · persons to witness the search and accordingly P. W. 1 Ram Babu and P:w 2 Keshar Mal were requesied to join the raiding party. 15· currency notes produced by the complainant were smeared with F. phenolphthalein powder and a memorandum of the same was pre- . pared; The raiding party led by P. W. 7Dy. S. P. Mahavir. Prasad and including the com. Plaina. nt Rajendra Dutt, two m~tbirs P. W; I Ram Babu and ,P. W. ·2 Keshar Mal, P. W.

3 'Prahlad Narayan, ·· clerk in the Office uf the Anti Coquption Department, . started by · jeep driven by P. W. 6 Bajrang Singh to go to the residence of the appellant. Office and residence of the appellant are situated in the same buitding. Complainant Rajendra Dutt and the two motbirs Ram Babu and Keshar Mal proceeded ahead and entered into the . room used as residential. portion of the building. Ram Babu and Kcshar Mal stoppled in the verandah and . the complainant Rajendia . . Dutt went inside. · Appellant w~s seen sitting on,a cot. On inquiry . by complainant Rajendra . Duti appellant replied that he was not well .. . . , I . . - and that he was suffering from cold. Appellant then inquired · whether co. mplainant Rajendra Dutt had brought the money and tbe cqmplainant replied that he had brought the money and handed over marked currency notes 15 in number each of th_e demonination of Rs. 10/- which the appellant accepted ailcj put the same under his pillow.

Rajendra Dutt canie out in the verandah and as instructed, 8 ' gave the agreed signal whereupon Dy. S. P. Mahavir Prasad, the two motbirs and others entered the room. Mahavir Prasad introduced himself as Dy. S. P. ACD, and asked the appellant whether he had accepted Rs. 150/- as and by way ·of bribe from complainant Rajendra Dutt. Appellant denied having accepted any bribe or any money from Rajendra Dutt whereupon a search of his person-was taken. When the search of the person of the accused was being taken motbirs Ram Babu and Keshar Mal pointed towards the pillow indicating that . the bribe taken by the appellant was kept underneath the pillow. P. W. 6 Driver Bajrang Singh ,was asked to . lift the currency notes and the numbers were _tallied with the memorandum prepared earlier. Hands of the accused were dipped in the solution of Sodium carbonate which turned pink.

After the memorandum was completed' recording all these facts and after completing investigation sanction, was obtained and the appellant was prosecuted for the. aforementioned offences. . By the time the case came up for trial complainant Rajendra E· Dutt was dead and his evi. dence was not available. Prosecution examined the two motbirs Ram Babu and Keshar Mal, Dy. SP, ACD Mahavir Prasad, Clerk Prah! ad Narayan, Driver Bajrang Singh and two·others. ·Statement of the accused was recorded under s. 313 of the Code of Criminal Procedure and he offered himself as a witness in his defence. In his evidence he stated that on the date of occurrence around 4. 30 p. ni. when he was sitting in his cot complainant Rajendra Dutt came and took a seat in the chair placed nearby. Appellant enquired wfiy he had come and whether he had brought any written complaint against Clerk Mr: Singhal.

According to him, the complainant replied that action be ·taken against Singhal by recording his statement whereupon the appellant said that if the complainant has any grievance be should come with a written ·complaint. Appellant further stated that thereafter he went to the bath room for spltting coug}\ and he came out and sat on the· cot. " Complainant'Rajendra Dutt ·enquired whether he can drink water • from a jug which was' lying there. Thereafter Rajendfa Dutt went • • - KISHAN CHAND V. RAJASTHAN (Desai, J. ) 573 out of the room and soon thereafter 8 persons including Rajendra Dutt entered tb'e room. He stated that· two of the members of ihe raiding party caught his hands and when he. t~ied to get himself released·from the grip of th. ose persons the grip· tightened. One of the members of the raiding ·party then told him that he was Dy. SP,. ACD, Ajmer and called upon him to produce Rs; 150/- he had taken from Rajendra Dutt. Appellant stated that he immediately told the Dy.

SP that be bad not accepted any money from Rajendra . Dutt wliereupon the Dy. SP came. near him an~ put his hand in the pocket of the garment put on by the appellant. Appellant- objected to any search being taken and insisted on keeping two respectable· persons ,. present. He further _stated that Dy. SP qu,arrelled·with him and then be sent a telephone message to S. P. , Ajmer that a: Factory Inspector lias quarrelled with hilli' and he should be provided with extra police help. Tbereaf. ter his bands were dipped in a solution but the colour of the solution did not chan. ge and remained white. Appellant then told the Dy. SP that Rajendra Dutt bad come to complain against one Singhal, a' Cierk and in support of this he produced Ext. D-2 marked collectively in respeci of five letters. ·At )his stage the Dy. SP according to the apj>ellant asked· Rajendra _Dutt why ·he bad given a false signal whereupon' the complainant Rajendra Dutt. .

informed the DySP thafthe bribe money was lying ·under the pillow whereupon the DySP removed the pillow and collected the currency notes. He further stated that be has been involved in this false case . at the instance ot K. C: Sogani, Factory Manager of Krishna Mills, Beawar. This was broadly the defence of the appellant as collected from his evidenc~. ' ' The learned special Judge noted the faci that the complainant Rajendra Dutt was not available and, therefore, the first demand at the. Factory of Rajendra Dutt on November 20, 1974, has not been proved. The learned Judge, however, held that the evidence of two n:iotbirs Ram Babu. and Keshar Mal was reliable and was amply ~'. corroborated by the . recovery of currency notes as~ well as the presence of phenolphthalein powder on the hands of tl;le accused. The learned Judge rejected the defence version that the currency notes were planted when the appellant had gone into the bath room.

· The learned Judge accordingly convicted and sentenced the appellant as mentioned bereinbefore. ' ' The appellant having unsuccessfully appealed to the Rajasthan High Court, has filed this appeal by special leave. 1. . ' Mr. Frank Anthony, learned counsel for the appellant contended that there are certain features of this case which would convincingly show that the prosecution case cannot be· accepted. He enumerated the circumstances as : (i) absence of name ofthe appellant in the F. I. R. Ext. P-12; tiiJ absence of evidence of demand as 00 November 20, 1974. ; (iii) absence of any prior arrangement where and when the complainant was to'meet the appellant aμd, therefore, the trap could not be successfully arranged wbJ! ih might permit an inference that the whole story of ·ac. ceptance of . bribe money is concocted; (iv) further two motbirs P. W. I Ram Babu and P. W. 2 Kesfiar Mal were petty clerks specially selected by P. W.

3 Prahlad Narayan ; (v) in their evidence they have tried to improve upon the prosecution version which shows their unconcealed ·interest in the ·Success of the trap. which would render them partisan witnesses·; (vi) there are certain omissions in ·the evidence of the prosecution witnesses which may indicate that the defence v_ersion of planting the 0 currency notes when theappellant had gone to. bath room is probabilised ; (vii) that no inference be drawn from the fact that when hands of th,e appellant _were dipped in the sodium carbonate solution it turned ·pink because admittedly when hands of. the accused were caught by the members of the raiding party one or the other of them may have transmitted phenolphihalein powder to the hands of the appellanl. . Complainant Rajendra Dutt on ·whose complaint a trap was arranged was dead by the time the case came ·up for . trial and his evidence was not available to the prosecution. However,' the · complaint Ext. P-12-filed by him was adm.

itted in evidence because P. W. 7 Mahavir Prasad, the Dy SP who recorded the same gave evidence about the same. The averments in the complaint even in the background of these facts would not provide substantive evidence and the only use to which it can be p. ut is that a coinplaint of this nature was filed which tends. to explain the subsequent actions taken ' . by the DySP. ' High Court has examined the evidence of two motbirs P. W. 1 Ram Babu and P. W. 2 Keshar Mal, and also the evidence of P. W. 7 Mahavir Prasad and agreed-with the findings recorded by the trial· court. We neecf not examine the evidence afresh but limit our examination to specific contentions raised by Mr. Antho·ny. The-first contentfon is that the name of the appellant Kishan Chand M~ngal is not to be found in Exi. P-12. That is true, but • • KISBAN CHAND V. RAJASTHAN (Desai, J. ) 57S what is. stated in Ext. P-12 is that a F~ctory Inspector accompanied by his friend visited the factory of the appellant and demand.

ed a ;! bribe. Now, the appellant in his evidence as. DW 1 ·has stated that complainant Rajendra Dutt did come to his house on November ·22, ' 1974, arountl . - 4. 30 p. m. ·Appellant further proceeds to say that Rajendra ·Dutt had 8ome grievance against a clerk Singhal and appellant insisted upon givil)g a written complaint at the time of the visit of Rajenqra Dutt; If Rajendra' Dutt, as is now contended · wanteil to falsely implicate the accused there ·is no: reason why he' . would not mention the name ofthe appellant in Ext. P-12.. On the ,. contrary the absence of'the name of the appellant in Ext. P-12 would indicaie that probably the appellant had visit"d lhe factory the members of the raiding party whose hands must have already been soiled with the phenolphthalein powder when the arrangements were being made for laying the trap they must have transmitted the same to the band~ of the accused.. This contention stands b. elied by , ' the evidence on record.

Mahavir Prasad bas deposed that he asked~ one Ganga Singh to demonstrate the phenolphthalein powder test. After that he was dire~ted to wash his hands. No other member of . the raiding party touched the phenolph_thalein powder at the time of demonstration. Ganga Singh was a member of the raiding party but when the hands of the accused were sought to be dipped in the solution tbis task was assigned to SI Satya Narain. Undoubtedly there is nothing to show that his hands were soiled with phenolphthalein powder. The hands of Rajendra Dutt must have been soiled with ! I) AIR 1974 SC 218. KISHAN CHAND •• RAJASTHAN (Desai, J. ) 581 · phenalphthaleih powder because he took out the currency notes from his diary and passed them on to the appellant. But it is not suggested that Rajendra Dutt caught the hands of the appellant.

Therefore, it is not possible to accept the submission that when the hands of the appellant were caught in the ensuing quarrel between him and the DySP Mahavir· Prasad, phenolphthalein' powder must have been 8 transmitted by . persons holding the hands ·of the appellant. This 'tell-tale· circumstance would lend ·ample independent corroboration • if there be any need to the evidence of Ram Babu and Keshar Mal that they saw Rajendra Outt giving marked currency . ~otes to the , appellant and 'the appellant accepting the same aod. puUiog them underneath the pillow. -, Mr. Anthony urged that there are'certain tell-tale circumstances in the case which would render the defence plausible. It was urged that the appellant did not disclose any guilty syndrome when the ' raiding party entered his ro'om and at the first question he denied < having accepted any bribe from Rajendra Dutt. How would these two circumstances be sufficient to reject ihe otherwise reliable _ testimony ?

- A person with a strong will would not be upset and may remain cool and collected. The appellant did pick up a quarrel with the DySP. Why? His suggestion that he insisted oit two independent witnesses being kept present appears to be an afterthought. The fact that the appellant picked up a quarrel is borne out from the evidence of the persol)s present·there and by the action of the DySP In summoning additional police help°. · Therefore, we find no circumstances which would impinge upon the prosecution case. .. .. We read the entire evidence of two motbirs Ram Babu and· ~ Keshar Ma! , evidence of DySP Mahavir Prasad, Ext. P-12, the · · F. I. R. , and we are in agreement with the High Court that the case · . , has been proved beyond a shadow ·of reasonable doubt. The evidence of appellant himself does not raise a plausible defence and has been rightly negatived. Mr. Anthony further urged that the appellant did not demand bribe because there is no such ·evidence and that even if.

Rajeodra Dutt appears to have given some currency notes the appellant was an uowillfog victim and the court must frown upon such attempts of the police to make governmel! t servants commit offence. He relie<l· upon the oft quoted passage in Brannan v. Peek('). In that case the finding was that when the second time the police constable attempted . to give a bet the accused showed his reluctance to accept the same.. '! -, ' That was also the finding of the justices. The Court frowned upon the police officel'S in the absence of an Act of Parliament going to the place of the accused so as to induce him to commit an offence. We fail to see how this observation has any relevance in·the facts of this case. Once the suggestion that there was a demand of bribe is accepted the appellant could not be said to be an unwilling victim ' nor a fence sitter who was induced to fall a victim. to the trap. Lastly it was urged that the court would not be justifiedni raising a presumption under S.

4 (1) of. the Prevention of Corrup· tion Act, 1947. In the facts of this case and in the absence of presumption even if Rajeddra Dutt . gave some money to the appellant that by itself would not establ,ish the . offence and the case must fail. Reliance was placed on Ba. nsi Lal Yadav v. State of Blhar('). In that case the defence of the accused was that currency notes were thrust in his pocket. Taking cue from this statement, the court held that the acceptance of an amount other than legal remuneration having been admitted the presumption would arise under S. 4(1) and the burden would shift to the accused. It is in this context that this court held that where the accused says that involuntarily the amount was thrust in his pocket he could nc;it be said to have accepted or obtained for himself any gratification other than legal remuneration which alone permits the presumption to be raised.

Facts in this case being a demand and voluntarily acceptance, the presumption would squarely arise and has been rightly raised. ... • Reliance was also plaeed on the decision of this Court in · .. /'.... Sultan· Singh'·v. State of Rajasthan(3). In that case the explanation/ of the appellanl was that Rs. 100 was paid to him towards the arrears of revenue and in the. absence of reliable evidence to the contrary '" the explanation was held acceptable. . This is a decision on the facts of that case and would be hardly of any assistance in dealing with the points raised in this case. (I) [1947] 2 All E. R. 572 at 574. (2) AIR 1981 SC . 1235. (3) Crl. Appeal No. ~6 of ! 967 detjded OD July 28, }969. ' - . KISHAN CHAND v. RAJASTHAN (Desai, J. ) . 583. • Therefore, the charge is brought home to the accused and he A has been rightly convicted and the sentence awarded being the minimum, n_o case is'made out for interfering wit~ the same. Accordingiy this appeal fails and is dismissed.

The baiLbond ·of the appellant is cancelled and he must surrender to serve out the sentence. B H. L. C. , Appeal dismissed. .. '