AI Drafter 
TaxTMI 
TaxTMI 
2015 (1) TMI 1357
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..... What was a malady at one time, with the efflux of time, has metamorphosed into malignancy. What was a mere disturbance once has become a disorder, a diseased one, at present. 2. The instant case frescoes and depicts a scenario that exemplifies how due to passivity of the learned trial Judge, a witness, despite having stood embedded absolutely firmly in his examination-in-chief, has audaciously and, in a way, obnoxiously, thrown all the values to the wind, and paved the path of tergiversation. It would not be a hyperbole to say that it is a maladroit and ingeniously designed attempt to strangulate and crucify the fundamental purpose of trial, that is, to arrive at the truth on the basis of evidence on record. The redeeming feature is, despite the malevolent and injurious assault, the cause of justice has survived, for there is, in the ultimate eventuate, a conviction which is under assail in this appeal, by special leave. 3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question, is it justified for any conscientious trial Judge to ignore the statutory command, not recognize "the felt necessities of time" and remain impe....
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....djourning a case in spite of the presence of the witnesses willing to be examined fully, opined thus: "9. We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation. Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by the presiding officers of the trial courts and it can be reformed by everyone provided the presiding officer concerned has a commitment towards duty." 7. With the aforesaid concern and agony, we shall presently proceed to adumbrate the necessitous facts. We have already stated that despite the impasse, there is a conviction by the trial Judge and an affirmation ther....
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....on. Sher Singh, PW-6, a clerk in the office of Tehsildar, Rajpura had joined the police party as an independent witness. He supported the case of the prosecution in detail. Jagdish Verma, PW-7, in his examination-in-chief, supported the prosecution case in all aspects, but in cross-examination, resiled from his examination-in-chief. The witness, PW-7, was declared hostile on a prayer being made by the Public Prosecutor and was re-examined. Narinder Pal Kaushal, PW-8, DSP of Vigilance Bureau who had led the raiding party on 25.1.1995, in his deposition, deposed in detail about the conducting of the raid and recovery of the amount. 10. The accused, in his statement under Section 313 CrPC, denied the allegations and took the plea of false implication due to party faction and animosity. It was his further stand that he was brought from his office and was taken to the office of the Tehsildar and thereafter to the Vigilance office. 11. The learned trial Judge, on the basis of the evidence brought on record, came to hold that though the complainant had not supported the case of the prosecution yet prosecution had been able to prove the demand and acceptance of the bribe and the reco....
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.... the learned trial Judge to record a conviction against the accused. It is his submission that on the basis of the testimony of PW-6 to PW-8, the conviction could not have been recorded, for Sher Singh, PW-6, is not a witness either to the demand or acceptance of the bribe by the appellant and further the version PW-7 requires careful scrutiny, regard being had to the fact that he is a hostile witness. It is also urged that the evidence of PW-8 deserves to be discarded as he is an interested witness. To bolster the aforesaid submissions, learned senior counsel has drawn inspiration from B. Jayaraj V. State of Andhra Pradesh (2014) 4 SCALE 81 and M.R. Purushotham Vs. State of Karnataka (2014) 11 SCALE 467. 15. Apart from above, it is further put forth by him that as PW-7 has not supported the prosecution story and stated to have been tutored to give statement, his whole testimony should have been thrown out of consideration and no reliance should have been placed on it. It is contended by him that the High Court has failed to appreciate the importance of cross-examination of PW-7 and hence, the judgment affirming the conviction is absolutely flawed. To buttress the said submissio....
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....ostile witness can be placed reliance upon by the prosecution and in the obtaining factual matrix, the testimony of PW-7, one of the shadow witnesses, renders immense assistance for establishing the case of the prosecution. He has with great pains, taken us through the evidence to substantiate the stand that the conviction recorded against the appellant is totally defensible. 19. Keeping in abeyance what we intend to say on the facet of anguish expressed by us in the beginning, we shall proceed to deal with the proponement of Mr. Jain that when the investigation conducted by Mr. Narinder Pal Kaushal, PW-8, is vitiated on the foundation that he has lodged the FIR, the trial is also vitiated. Though the said submission has been raised and taken note of by us as the last plank, yet we think it seemly to deal with it first as it goes to the root of the matter. On a perusal of the material on record, it is manifest that PW-8 is a part of the raiding party, a shadow witness, and admittedly had also sent the complaint through a Constable to the concerned police station for lodging of FIR. This being the factual score, we are required to take note of certain authorities in this regard. ....
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....culars but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. But it may in appropriate case look for corroboration". 22. In MO Shamshuddin (supra), the Court, after referring to the decisions in DPP V. Hester (1972) 3 All ER 1056 and DPP V. Kilbourne (1973) 1 All ER 440, made a distinction between accomplice and an interested witness. The Court, referred to the authority in Basawan Singh (supra) at length and eventually adverted to the concept of corroborating evidence. In that context it has been ruled thus: ".......Now coming to the nature of corroborating evidence that is required, it is well-settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The court should weigh the evidence and....
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....e appellant and he was the informant or complainant who lodged the first information report for taking action against the appellant. It is difficult to understand how in these circumstances Head Constable Ram Singh could undertake investigation of the case. How could the complainant himself be the investigator? In fact, Head Constable Ram Singh, being an officer below the rank of Deputy Superintendent of Police, was not authorised to investigate the case but we do not attach any importance to that fact, as that may not affect the validity of the conviction. The infirmity which we are pointing out is not an infirmity arising from investigation by an officer not authorised to do so, but an infirmity arising from investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the first information report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case". 24. In Megha Singh V. State of Haryana (1996) 11 SCC 709, the Court noticed the discrepancy in the depositions of PW-2 and PW-3 and absence of independent corroboration. Be it noted, the Court was dea....
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.... 157 prescribes the procedure in the matter of such an investigation which can be initiated either on information or otherwise. It is clear from the said provisions that an officer in charge of a police station can start investigation either on information or otherwise." 26. After reproducing the said paragraph, the Court proceeded to state thus: "Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer who "lodged" the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it h....
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....station and thereafter carried the formal investigation. In fact, nothing has been put to him to elicit that he was anyway personally interested to get the appellant convicted. In our considered view, the decision in S. Jeevanatham (supra) would be squarely applicable to the present case and, accordingly, without any reservation we repel the submission so assiduously urged by Mr. Jain, learned senior counsel for the appellant. 29. The next aspect which requires to be adverted to is whether testimony of a hostile evidence that has come on record should be relied upon or not. Mr. Jain, learned senior counsel for the appellant would contend that as PW-7 has totally resiled in his cross-examination, his evidence is to be discarded in toto. On a perusal of the testimony of the said witness, it is evincible that in examination-in-chief, he has supported the prosecution story in entirety and in the cross-examination he has taken the path of prevarication. In Bhagwan Singh V. State of Haryana (1976) 1 SCC 389, it has been laid down that even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and ....
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.... a natural corollary, the testimony of a hostile witness cannot be brushed aside. On the contrary, both the prosecution and the defence can rely for their stand and stance. Emphasis on re-examination by the prosecution is not limited to any answer given in the cross-examination, but the Public Prosecutor has the freedom and right to put such questions as it deems necessary to elucidate certain answers from the witness. It is not confined to clarification of ambiguities, which have been brought down in the cross-examination. 32. Mr. Jain, learned senior counsel has propounded that testimony of PW7 deserves to be discredited, and the learned trial Judge as well as the High Court having not ignored have committed a grave error. We will be dealing with the aspect whether the evidence of PW-7 should be totally ignored or not while we will be dwelling upon the credibility and acceptability of his testimony. 33. As a contention has been raised that once the informant has resiled totally from his earlier statement no conviction can be recorded on the basis of evidence of the trap witnesses, it required to be carefully dwelled upon. In this regard, reference to the authority in Hazari....
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....ressed into service. In the case of Sita Ram (supra) the complainant had turned hostile in the court of Special Judge. However, the trial Judge convicted the accused who was tried along with another accused, namely, Vikram Singh. The High court on appreciation of the evidence acquitted Vikram Singh but maintained the conviction against Sita Ram. This Court opined that the presumption under Section 4(1) of the 1947 Act could not be drawn in the facts of the case. The question, whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complaint was not considered. The Court in Hazari Lal (supra) distinguished the pronouncement in Sita Ram (supra) by stating thus:- "...The question whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complainant was not considered. All that was taken as established was the recovery of certain money from the person of the accused and it was held that mere recovery of money was not enough to entitle the drawing of the presumption under Section 4(1) of the Prevention of Corruption Act. The Court did not consider the further question wheth....
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.... orchestrated a false trap against him by employing PW1 and PW2. Be it stated, in his deposition PW1 had stated that he had acted on the behest of one Dr. Krishna Rao. It was further the stand of the accused-appellant that the tainted currency notes were forcibly stuffed into his pocket. The trial court and the High Court had disbelieved the defence evidence and found that PW1 and PW2 were won over by the appellant and that is why they turned hostile against their own version recorded by the investigating officer and subsequently by a Magistrate under Section 164 of CrPC. The Special Judge ordered the witnesses to be prosecuted for perjury and the said course suggested by the trial Judge found approval of the High Court also. While dealing with the controversy this court took note of the fact that the High Court had observed that though there was no direct evidence to show that the accused had demanded and accepted the money, yet the rest of the evidence and the circumstances were sufficient to establish that the accused had accepted the amount and that gave rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification....
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....s concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgment of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu v. C.B.I. (2009) 3 SCC 779" After so observing, the court proceeded to state thus:- "In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself has disowned what he had stated in the initial complaint (exbt. P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and c....
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....rinder Pal Kaushal, DSP, on the instruction of Tehsildar. He was introduced to Baj Singh, the complainant and Jagdish Verma, a shadow witness. Thereafter, the complainant and the shadow witness, Jagdish Verma, were sent to the octroi post and he stopped at some distance along with Narinder Pal Kaushal who was waiting for signal and on receiving signal they went inside the octroi post. As per his testimony Narinder Pal Kaushal introduced himself as DSP and thereafter a glass of water was procured and sodium was added to it. Both the hands of the accused were dipped in the glass of water and the water turned pink. On search of the accused Rs. 500/- in the denomination of Rs. 100/- were recovered. The numbers tallied with the numbers mentioned in the memo, Ex. PE. The notes were taken into possession vide Ex. PH. As is manifest that the said witness has supported the story of the prosecution in toto. The submission of Mr. Jain is that he is merely a witness to recovery and solely on the basis of recovery no conviction can be recorded. There can be no quarrel over the proposition that on the basis of mere recovery an accused cannot be found guilty. It is the settled principle of law....
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....se tallied. The notes were taken into possession vide recovery memo Ex.PF. A sum of Rs. 310/- was recovered from the further search of the accused which was taken into possession vide recovery memo Ex.PK. Thus, from the aforesaid testimony it is absolutely clear that he has supported in entirety about the demand, acceptance and recovery of money. It is necessary, though painful, to note that PW7 was examined-in-chief on 30.9.1999 and was cross-examined on 25.5.2001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross-ex....
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....es that have been recovered from the right side of the pant pocket were actually prepared by PW8 by smearing them with phenolphthalein powder. The appellant was caught red-handed with those currency notes. In is statement recorded under Section 313 of CrPC he has taken the plea that he is innocent and has been falsely implicated due to animosity. No explanation has been given as regards the recovery. Therefore, from the above facts, legitimately a presumption can be drawn that the accused-appellant had received or accepted the said currency notes on his own volition. The factum of presumption and the testimony of PW6 and 7 go a long way to show that the prosecution has been able to prove demand, acceptance and recovery of the amount. Hence, we are inclined to hold that the learned trial Judge and the High Court have appositely concluded that the charges leveled against the accused have duly been proven by the prosecution. It is not a case that there is no other evidence barring the evidence of the complainant. On the contrary there are adequate circumstances which establish the ingredients of the offences in respect of which he was charged. 41. Before parting with the case we ar....