Decided on December 09,1966

STATE Respondents


A.D.DESAI, A.S.SARELA - (1.) THE appellant Manilal Harchand Mehta who was the accused in the lower Court was charged before the Special Judge Kutch (Mr. S. H. Sanghvi) with offences under sec. 5(2) of the Prevention of Corruption Act 1947 and sec. 161 I.P.C. THE charge was that on or about 22nd August 1964 at about 10-30 A.M. at Bhuj in Kutch district the appellant was a public servant working as Revenue Circle Inspector in Bhuj Taluka and he directly accepted Rs. 400/- from Naran Karsan of village Anandsar as illegal gratification other than legal remuneration as a motive for doing an official act and thereby committed the offence of criminal misconduct in discharge of his duty punishable under sec. 5(2) of the Prevention of Corruption Act and under sec. 161 Indian Penal Code. He was as we just stated convicted under both these counts. On the first count he was sentenced to suffer R.I. for one year and a fine of Rs. 500.00 in default of payment of which to undergo further R.I. for three months and on the second count he was sentenced to suffer R.I. for one year. THE substantive sentences were ordered to run concurrently. Against those convictions and sentences he has come in appeal.
(2.) THE last argument of Mr. Mankad as regards the evidence as a whole is that the three witnesses are partisan witnesses and their evidence cannot be accepted without corroboration. It is necessary therefore to consider this part of the argument and also to see whether if corroboration is necessary the same is available in this case. THEre is no doubt that complainant Naran and the P.S.I. would be partisan witnesses. THE same cannot however be said as a matter of course in respect of Panch Pratapsinh. Mr. Mankads argument is that Pratapsingh is in fact an interested witness and even if he is not found in fact to be an interested witness be must be deemed to be an interested witness having regard to the fact that he was acting as a panch in a raiding party. We shall first examine the submission that Pratapsingh was in fact an interested witness. Mr. Mankad relies on three circumstances. He states that Pratapsingh and the P.S.I. are from the same community. He then states that Pratapsingh does not belong to the same locality where the P.S.I.s office is situated and where the initial panchnama was made and therefore his evidence is suspect. He lastly urges that Pratapsingh is under the influence of the P.S.I. because Pratapsingh while in school was staying in a boarding house of which the Superintendent was the brother of the P.S.I. Jadeja. THEre is no evidence in support of the first part of the argument. THEre is nothing to show that Pratapsingh and the P.S.I. Jadeja belong to the same community. THE whole argument is based on the admission of the P.S.I. in cross-examination that Pratapsingh is Jadeja by surname. Mr. Mankad argues that Pratapsinghs surname is Jadeja and the surname of P.S.I. is also Jadeja and therefore they belong to the same community. Mere similarity of surnames is not sufficient to justify that inference. If that was the case the defence could have put it either to Pratapsingh or to the P.S.I. As for the argument that he came from a locality other than the locality where the panchnama was made there is again no evidence. THE only evidence is that he resides in the locality at Bhuj known as the Upli Pol whereas the P.S.I.s office is in the Santosh Society. THEre is nothing to show that Upli Pol is at a distance from Santosh Society. As for the last argument namely that the P.S.I.s brother was the Superintendent of the boarding house in which the panch resided at the time of his schooling it is difficult to see how that can give the P.S.I. any influence over Pratapsingh. Pratapsingh is serving in the Taluka Panchayat Office and he is also studying in the Pre-University Class. It is not shown that either by reason of his occupation or by reason of his status he was amenable to the influence of or pressure from the P.S.I. Jadeja. It is not alleged that he is interested in the complainant or inimical towards the appellant. It is not alleged or shown that by reason of his position financial or otherwise he is susceptible to pressures from the complainant or the police. He appears therefore to be an independent witness. THE contention that he was in fact an interested witness cannot be accepted. Mr. Mankad however argues that even so the mere fact that Pratapsingh acted as a panch witness in connection with a raid was sufficient to class him as a partisan or an interested witness. In support of that proposition Mr. Mankad invited our attention to the decision of the Supreme Court in Shiv Bahadur Singh v. State of Vidh. Pra. (A.I.R. 1954 S.C. 322). In that case the raiding party consisted of three persons namely the police officer an executive officer of the rank of the Deputy Secretary who was concerned with corruption cases and the additional District Magistrate who accompanied the two. THE Supreme Court did not find it possible to rely on the evidence of these witnesses without corroboration as in the view of the Court they were partisan witnesses. THE Supreme Court however found corroboration in certain documents and in the testimony of the panch witness who was called after the raid. Mr. Mankad invites our attention to the following observations in that case (at page 328) : Not only was the police force requisitioned in the organizing of the raid but they also enlisted the aid of Shantilal Ahuja the Additional District Magistrate who took down the statement of Nagindas. searched his person prepared a memorandum of the notes which were handed over to him and actually accompanied the raiding party to the Constitution House. THE Additional District Magistrate was thus made a member of the raiding party itself and was reduced to the position of a witness. THE evidence of the police witnesses as also of the Additional District Magistrate thus was tainted as that of partisan witnesses and no corroboration could be derived by Nagindas from the evidence of these witnesses. From this Mr. Mankad draws the inference that all those who are with the raiding party must be treated as partisan witnesses. That inference does not necessarily follow from the decision. THE Supreme Court was considering the evidence of a non police officer who had identified himself with the police party and thereby shared the intention of the police authorities to trap the accused. Later on (at page 332) THEir Lordships indicate this more emphatically when they say that Shri Shantilal Ahuja the Additional District Magistrate also lent himself to the police authorities and became almost a limb of the police. It was on these facts that he was considered to be a partisan witness. This decision appears to have led to an argument in later cases that the evidence of partisan witnesses must necessarily be corroborated. This point was examined by the Supreme Court in the case of State of Bihar v. Basawan Singh (A.I.R. 1958 S.C. 500) where again the members of the raiding party were the two trap witnesses from whom the bribe had been demanded the Deputy Superintendent of Police the Deputy Secretary to Government who was concerned with corruption cases and a First Class Magistrate who was deputed by the District Magistrate to be with the above officers. THE question which the Supreme Court posed before itself was whether Shiv Bahadurs case lays down any universal or inflexible rule that the testimony of witnesses who form the raiding party must be discarded unless corroborated by independent witnesses. THEy answered that question in the negative. THEy formulated the correct rule in these words:- THE correct rule is this; if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses who are concerned in the success of the trap their evidence must be tested by the application of diverse considerations which must vary from case to case and in a proper case the Court may even look for independent corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness he cannot claim any higher status and must be treated as any other interested witness. THErefore a person who is concerned in the success of the trap is to be treated as a partisan or interested witness. Neither of these cases deals with the character of the evidence of a panch who accompanied the raiding party as a witness to what was taking place and not as a person who concerned himself with the success of the trap. That question was considered by the Supreme Court in Ramanlal v. State of Bombay (A.I.R. 1960 S.C. 961) where the panchas were also with the raiding party and witnessed the preparation and carrying out of the raid. THEir Lordships say (page 963):- In the case before us the money was given to the appellant in the presence of one of the search witnesses Mohanbhai Shankerbhai and when it was thrown on the ground by the appellant it was picked up by that witness at the instance of the Dy. S. P. Pandya. It cannot be said that these two witnesses were not independent witnesses even though they consented to become search or panch witnesses. THE two witnesses THEir Lordships refer are the two panch witnesses Mohanbhai Shankarlal and Rambhai Dahyabhai. THEreafter THEir Lordships referred to the status of these two panch witnesses the absence of any connection between them and the complainant the improbability of their being willing tools in fabricating false evidence against an innocent person and say that:- This is not a case where the police or anybody else has done any act in order to oblige any particular person but it is one of those cases where a complaint was made to the police that the appellant was demanding a bribe from the complainant. THE police no doubt provided the money and are witnesses to the passing of the money but it is not a case where the police had instigated any one to offer a bribe to the appellant. Even if it was a case where it was necessary to have corroborative evidence that is supplied by the testimony of Mohanbhai Shankerbhai and Rambhai Dahyabhai and as was pointed out by this Court in Rameshwar v. State of Rajasthan (1952) SCR 377; (A.I.R. 1952 S C. 54) that it is not necessary that there should be independent corroboration of every material circumstance. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplices or the complainant is true and that it is reasonably safe to act upon it and the corroboration need not be direct evidence. THErefore the evidence of the panch witnesses was treated not on the same footing as the evidence of partisan or interested witnesses but as additional evidence to be considered on its own merits. THE true position therefore is that as regards panch witnesses the mere fact that they accompanied the police and witnessed the raid does not make them interested witnesses. THEy do not by reason of participation in those proceedings stand on the same footing as the complainant or the police who are interested in the success of the raid. THEy may stand on that footing if the circumstances show that they share in the intention to raid or have become parties to that intention by any subsequent conduct on their part such as being actually interested in the result of the raid. In the absence of any such participation or interest on their part their evidence must be judged by the same standards as the evidence of any other witness. THEir status the presence or absence of any motive to favour or disfavour a party the dispassionate nature of their evidence and all other factors bearing on their independence and reliability and the probabilities of their story may be taken into account. This was the view taken by the Bombay High Court in Ramchand Tolaram v. THE State (A.I.R. 1956 Bom. 287) where it was pointed out that if the panchas are not parties to the trap and do not share in the intention of the decoy or the trap witness or the police who raid with the objective of trapping and are there only primarily for the purpose of witnessing what was taking place there is no reason to treat them not as independent witnesses but as partisan witnesses THEir Lordships drew attention to the danger involved in treating panch witnesses as necessarily partisan witnesses. THEy observed (page 294):- To put the matter in a nutshell the police take the panchas with themselves so that they should watch what happens. THEy are not interested in what happens nor are they parties to the trap. THE law of the land requires that certain things should be done by the police in the presence of independent respectable persons so that the presence of the said persons may put the particular transaction beyond the pale of suspicion. In these circumstances to construe the conduct of independent and respectable people who accompany the police at the asking of the police to serve as panchas as being the conduct of partisan persons would be grossly unfair to these people. THEy pointed out that if panchas who come forward to do their duty in the administration of justice as respectable citizens lose in the bargain their independent character and carry a stigma of being a partisan witness it would become a serious matter. THEse are weighty considerations. Mr. Mankad however invites our attention to the decision of this Court in Bhanuprasad v. State (VI G.L R. 958) and to the observation therein that the trap witnesses who are members of the raiding party may be treated as partisan witnesses but as regards partisan witnesses there is no rule of law that their evidence cannot be accepted in the absence of independent corroboration in material particulars. THE observations there refer to the trap witnesses and to the question whether the evidence of partisan witnesses requires to be independently corroborated in material particulars before it can be accepted. THErefore it is not possible to accept Mr. Mankads submission that merely because Pratapsingh is a panch he must be on that account held to be a partisan or interested witness. Whether or not he is an independent witness or interested witness must depend on the facts of this case and so far as the facts of this case go there is nothing to indicate that he is in any way an interested witness. On the other hand the facts indicate that he is an independent witness. That being so his evidence if accepted furnishes additional evidence which tenders the evidence of the complainant and the P.S.I. probable and acceptable. [ THE rest of the judgment is not material for the reports. ] Appeal dismissed.;

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