Decided on August 31,1979

STATE Respondents


D.C.GHEEWALA, M.K.SHAH - (1.) The appellant accused stood his trial before the learned Special Judge at Rajkot in criminal special case No. 4 of 1976 for the offences under sec. 161 of the I. P. Code and sec. 5 (2) of the Prevention of Corruption Act at the end of which trial he was found guilty for both the offences by the learned special Judge and was amar dedsentence of R. I. for one year and fine of Rs. 500.00 in default R. T. for three months for the offence under sec. 161 of the I.P. Code with no separate sentence awarded for the offence under sec. 5(2) of the Prevention of Corruption Act. ... ... ... ... ... ... ...
(2.) Mr. Shah then contended that the case with regard to demand of bribe and acceptance of the money rests solely on the evidence of the complainant. Panch No. 1 who was specifically assigned for the purpose of keeping himself posted near the door as an applicant waiting for his turn to see the accused and to attempt to see and bear what would happen in the chamber of the accused between the accused and the complainant says that as the door was closed by the peon he could not see what happened in the chamber nor could he hear may conversation between the accused and the complainant. He therefore merely sat on a bench for all the time during which the accused and the complainant were closeted with each other in the chamber. The complainants evidence with regard to the demand conversation which took place between him and the accused wherein the accused enquired whether the complainant had brought money and on the complainant saying yes the accused stating give and the complainant giving money and the accused voluntarily taking the same in his right hand and placing the same in his bush shirt pocket) has not been corroborated by an independent witness like the panch. In a recent decision in Panalal Damodar Rathi v. State of Maharashtra A.I.R. 1979 S.C. 1191 Kailasam J. who delivered the judgment of the court has in clear terms observed that there should be no doubt that the evidence of the complainant should be corroborated in material particulars. It is further observed as follows : "After introduction of S. 165-A of the I.P.C making the person who offers bribe guilty of abatement of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon".
(3.) Mr. Chhaya the learned Public Prosecutor in this connection submits that in the instant case the required corroboration to the evidence of the complainant is supplied by the evidence of P. S. I. Trivedi ex. 79 who had the opportunity to see and hear that happened in the chamber of the accused and that therefore it cannot be said that the complainants evidence is not corroborated in material particulars. We are unable to persuade ourselves to accept the proposition that a P. S. I. who is a member of the raiding party and whose evidence would even otherwise require corroboration can supply such corroboration to the evidence of the complainant. As observed by the Supreme Court in Raghbir Singh v. State of Punjab A. I. R. 1976 S. C. 91: "The officers functioning in the anticorruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe". The Supreme Court therefore in that case did not rely on police witnesses as also interested witnesses viz. the complainant and his relatives with regard to the evidence in connection with search of the person of the accused and bribe money being found therefrom. ;

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