STATE OF U.P.versusZAKAULLAH

A                                 STATE OF U.P.
                                       v.
                                   ZAKAULLAH

                               DECEMBER 12, 1997
          ..
B                [M.K. MUKHERJEE AND K.T. THOMAS, JJ.)

          Prevention of Con11ptio11 Act, 1947: Section 5(2).

         Bribe-giver-Testimony of-Bribe-giver had grouse against ac-
C cused-Held: His evidence does not call for outright rejection merely because
  he is aggiieved by the conduct of accused-However, his evidence is required
  to be scrutinised with greater care-Penal Code, 1860, S.161, Trap-So/utio11
  used for conducting phe110/phthalei11 test not sent to the Chemical Ex-
  ami11e1'---/ield : 171ere is no statutory provision wlfich requires that such
D solution be sent to the Chemical Exami11er-Phe11olphthalein solution is used
  for the satisfaction of the officials that the suspected public servant would
                                                                                      -
  hd4Je really handled the bribe money-He11ce, failure to send such a solution
  to Ch~mical Examiner, i11co11seque11tial.

E         Bribe1y--Co11victio11 of accused reversed 011 ground that nobody over-
    heard the demand made by accused or that the amount was found in the left
    pocket of the accused-Held : Such reversal of conviction not justified.

          Criminal Procedure Code, 1973 : Section JOO(4).

F        lndepe11de11t Wit11ess--Mea11i11g of-Held : Mere acquaintance with
  police officer would 1101 make a witness 11011-i11depe11de11t-Every citizen must
  be presumed to be an i11depe11dent person until it is proved that he was a
  dependent of the police or other officials for any pwpose whatsoever-Merely
  because the witlless was a complai11a11t in another bribery case or that he was
G a witness iii two other cases though not yet examined i11 those cases would
  1101 render him a no11-i11dependent witness-Similarly, mere fact that one of
  the witnesses was a driver of the vehicle in which the officials raided the place
  would 11ot result in his losing the status of independent witness.

H         Criminal Tiial :
                                          456
                         STATE v. ZAKAULLAH                            457
      Witness-Police officials-B1ibery --Evidence of DSP who WTanged the A
trap-Held: Can be acted upon even without co1Toboration--lt cannot be said
that he has any animosity against the delinquellt officer merely on the ground
that he is interested in the success of the trap.

      The respondent-government servant was convicted by the trial court
under Section 161 of the Penal Code, 1860 and also under Section 5 (2) of     B
the Prevention of C~rruption Act, 1947 and was sentenced to substantive
terms of imprisonment and fine but he was acquitted by the High Court.
Hence this appeal.

       According to the prosecution, a person was in occupancy of a certain C
land. Since the occupation was illegal, proceedings had been afoot for
evicting him •. PW-5 purchased the tight of the aforesaid person and
approached the respondent-accused for regularisation of occupancy for
which the respondent, who was a public servant, demanded a certain sum
by way of gratification. However, PW-5, before handing over the money, D
secretly met the officials of the Anti-Corruption Bureau and they arranged
a trap. In accordance with their scheme, currency notes were handed over
to the respondent-accused but the bribe-taker was soon intercepted by the
Anti-Corruption squad with the tainted cash. The currency notes were
seized from the respondent-accused and phenolphthalein test conducted
showed a positive result.                                                   E

      The following were the reasons, which were advanced by the High
Court for interfering with the conviction and sentence of the trial court :
(1) PW-5 had a motive to falsely implicate the respondent. (2) Independent
witnesses had acquaintance with the police officers. (3) One of the inde-     F
pendent witnesses was a complainant in another bribery case and also he
was a witness in two other cases although he was not yet examined in those
cases. (4) PW-4 (DSP of Allti-Corruption Bureau) was interested in the
success of the trap and, therefore, he had animosity against the respon-
dent. (5) Nobody overheard the demand made by the respondent for bribe.       G
(6) The amount was found not in the right pocket of the respondent but
only iu his left pocket.

     Allowing the appeal, the Court

      HELD : 1.1. The complainant's evidence was jettisoned on the mere       H
    458                   SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.

A ground that since he had a grouse against respondent- delinquent public
  servant he might falsely have implicated the latter. Such a premise is
  fraught with the consequence that no bribe giver can get away from such
  stigma in any graft case. No doubt the complainant would have been
  aggrieved by the conduct of the respondent. The very fact that he lodged a
B complaint with the Anti-Corruption Bureau is reflective of his grievance.
  Such a handicap in his evidence may require the court to scrutinise it with
  greater care, but it does not call for outright rejection of his evidence at
  the threshold. A pedantic approach rejecting the evidence of a complainant
  simply on the premise that he was aggrieved against the bribe-taker, would
C only help corrupt officials getting insulated from legal consequences.
                                                                    [461-C-E]

          1.2. Merely because a witn~ss was a complainant in some other
    bribery case or that he was a witness in two other cases though he was not
    yet examined in those cases would not render him a non-independent
D   witness. Similarly, the mere fact that one of the witnesses was the driver
    of the vehicle in which the officials went to raid the place would not result
    in his losing the status as "independent witness". [462-B-C]


          2. The necessity for "independent witness" in cases involving police
E raid or police search is incorporated in the statute not for the purpose of
  helping the indicted 11erson 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 acc1uainted
F 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
G 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. [462-D-F)


H         Hazmi Lal v. Delhi Administration, [1980) 2 SCR 1053, relied on.
                         STATE v. ZAKAULLAH                              459

      3. The DSP who arranged the trap had no interest against the              A
respondent. But the verve shown by him to bring his trap to a success is
no ground to think that he had any animosity against the delinquent
officer. The evidence of such a witness can be acted on without the help of
any corroboration. [462·G·H; 463·A·B]
                                                                                B
     Prakash Chand v. State (Delhi Administration) (1979) 2 S.C.R. 330
and Hazari Lal v. Delhi Administration, [1980) 2 SCR 1053, relied on.

       4.1. The DSP made arrangements to smear the phenolphthalein
powder on the currency notes in order to satisfy himself that the public
servant had in fact received the bribe and not that currency notes were         C
just thrust into the pocket of an unwilling officer. Such a test is conducted
for his conscientious satisfaction that he was proceeding against a real
bribe taker and that an officer with integrity is not harassed unnecessarily.
                                                                    [463-A·B]
      4.2. The reasoning of the High Court that reliability of the trap was     D
impaired as the solution collected in the phial was not sent to the Chemical
Examiner is too puerile for acceptance. The said solution is always used
not because there is any such direction by the statutory provision, but for
the satisfaction of the officials that the suspected public servant would
have really handled the bribe money. [463-C·D]                                  E

      5. The reasons that nobody over-heard the demand made by the
respondent for bribe and that the amount was found not in the right pocket
but only in the left pocket, are flippant grounds, which should never have
merited consideration. [463-E-F]
                                                                                F
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
724of1994.

     From the Judgment and Order dated 16.4.90 of the Allahabad High
Court in Cr!. A No. 2127 of 1983.
                                                                                G
      Prashant Kumar for AS. Pundir for the Appellant.

      Ms. Rachna Gupta for the Respondent.

      The Judgment of the Court was delivered by                                H
    460                   SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.

A         THOMAS, J. This is a Government appeal assailing the acquittal of
    a government servant from graft charge. Respondent government servant
    was convicted by the trial court under Section 161 of the Indian Penal Code
    and also Section 5(2) of the Prevention of Corruption Act, 1947 .and was
    sentenced to substantive terms of imprisonment and fine but he was
B   acquitted by a single judge of the Allahabad High Court when he appealed
    against the conviction and sentence.
           ·,j

          Respondent was working as Revenue Inspector (Wasil Baki Nawis)
    in a sub~Tehsil in Nainital District. The nub of the case against him is that
    he received Rs. 400 as bribe from PW5 Satpal Singh for doing an official
C   act and he was caught red-handed with the bribed amount by the anti-cor-
    ruption officials. After obtaining sanction from the government, respondent
    was challaned. In his defence, he disputed the entire incident and con-
    tended that it was a concocted case against him.

D         More details about the case : A person by name Naubat was in
    occupati~n of a certain land situate in the sub-Tehsil Kal~dhungi (Nainital
    district). Since the occupation was illegal proceedings have been afoot for
    evicting' him. PW-5 - Satpal Singh purchased the right of Naubat and
    approached the respondent for regularisation of occupancy. Initially,
    respondent demanded a sum of Rs. 500 by way of gratification but after
E   some haggling the amount was settled at Rs. 400. However, PW 5-Satpal
    Singh, before handing over the money, secretly met the officials of Anti-
    Corruption Bureau and they arranged a trap. In accordance with their
    scheme, currency notes amounting to Rs. 400 were handed over to the
    respond~nt on 23.5.1981, but the bribe-taker was soon intercepted by the
F   Anti-corruption squad with the tainted cash. The currency notes were
    seized from him and phenolphthalein test cpnducted showed a positive
    result.

        Apart from the evidence of the complainant, PW-5 (Satpal Singh)
  and PW~4 - Harendra Singh Sirohi (DSP of Anti-Corruption Bureau,
G Nainital), prosecution examined two other witnesses who were present
  when the delinquent officer was caught red-handed. They are PW6-Lokesh
  Pal Singh and PW7 - Khem Singh (who was driver of the vehicle in which
  the Anti-corruption officials travelled). The Special Judge, who tried the
  case found the evidence of the aforesaid witnesses reliable, but learned
H single judge of the High Court took a contrary view.
                  STATE v. ZAKAULLAH [TIIOMAS, J.]                      461
       Following are the reasons which learned single judge advanced for       A
interfering with the conviction and sentence; (1) PW-5 (Satpal Singh) had
a motive to falsely implicate the respondent because papers have already
been forwarded for eviction of Naubat from the illegal occupancy. (2)
Evidence of PW5-Satpal Singh was not corroborated by independent wit-
nesses. (3) There is material contradiction between the evidence of PW4
and PW6 regarding preparation of recovery-memo. (4) The solution (used
                                                                               B
for conducting phenolphthalein test) collected in a phial after washing the
tainted fingers of the respondent was not sent to the Chemical Examiner.
(5) Nobody over-heard the demand made by the delinquent officer for
bribe. (6) The fact that currency notes were recovered from left pocket of
the respondent verges the story on improbability because it was not sug-       c
gested anywhere that respondent was a left-handed person.

       Complainant's evidence was jettisoned on the mere ground that since
he had a grouse against the delinquent public servant he might falsely have
implicated the latter. Such a premise is fraught with the consequence that     D
no bribe giver can get away from such stigma in any graft case. No doubt
PW5 would have been aggrieved by the conduct of the respondent. The
very fact that he lodged a complaint with the Anti-Corruption Bureau is
reflective of his grievance. Such a handicap in his evidence may require the
court to scrutinise it with greater .care, but it does not call for outright
rejection of his evidence at the threshold. A pedantic approach rejecting      E
the evidence of a complainant simply on the premise that he was aggrieved
against the bribe-taker, would only help corrupt officials getting insulated
from legal consequences.

       Evidence of three defence witnesses (OW 1 to OW 3) helped the F
respondent to make out that termination of the illegal occupancy was
imminent because on 20.5.1981 itself respondent had sent up the proposal
to the Tehsildar for taking eviction proceedings in respect of Naubat's
occupancy. Assuming that the version given by OW 1 to OW 3 was correct,
even so there was no bar for PW5 to approach the respondent for regularis-
ing the occupancy. It was PW5's version that when the amount was paid, G
respondent himself was ready to prepare the application necessary for
regularisation of the occupation. Occasion for demanding the bribe was the
necessity of PW5 to move for averting the eviction threat. So there is no
merit in the contention that PW5 lodged the complaint only because of the
eviction proceedings initiated earlier.                                    H
    462                  SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.

A         Learned single judge concluded that evidence of PW 5 was not
    supported by independent corroboration. In so concluding he termed the
    two panch witnesses (PW6 and PW7) as "pocket witnesses." · PW7 is
    described as pocket-witness because he drove the vehicle of the DSP of
    Anti-Corruption Bureau and PW6 was so termed because he had appeared
    as a witness in one or two other cases charge-sheeted by the police.
B   Learned single judge commented about PW6 that "he can easily be tutored
    to depose anything at the behest of the police:"

          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
C   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."
D
        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
E 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
F 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
G Administration, [1980) 2 SCR 1053.

          The most important evidence .is that of PW-4 - Harendra Singh
    Sirohi, the Superintendent of Police who arranged the trap. We must mind
    the fact that he had no interest against the respondent. But the verve shown
H   by him to bring his trap to a success is no ground to think that he had any
                  STATE v. ZAKAULLAH [THOMAS, J.]                         463

animosity against the delinquent officer. He made arrangements to smear          A
the phenolphthalein power on the currency notes in order to satisfy himself
that the public servant had in fact received the hribe and not that currency
notes were just thrust into the pocket of an unwilling officer. Such a test is
conducted for his conscientious satisfaction that he was proceeding against
a real bribe taker and that an officer with integrity is not harassed unneces-
sarily.
                                                                                 B

      The evidence of such a witness as PW4 can be acted on even without
the help of :my corroboration [vide Prakash Chand v. State (Delhi Ad-
ministration), (1979) 2 SCR ~30 and Hazmi Lal v. Delhi Administration,
(1980] 2 SCR 1053.                                                               C

       The reasoning of the High Court that reliability of the trap was
impaired as the solution collected in the phial was not sent to Chemical
Examiner is too puerile for acceptance. We have not come across any case
where a trap was conducted by the police in which the phenolphthalein
solution was sent to the Chemical Examiner. We know that the said D
solution is always used not because there is any such direction by the
statutory provision, but for the satisfaction of the officials that the
suspected public servant would have really handled the bribe money. There
is no material discrepancy in the evidence regarding preparation of
recovery-memo and the minor contradiction mentioned by the learned E
single judge is not worth considering.

      The two remaining reasons i.e. nobody over-heard the demand made
by the respondent for bribe and that the amount was found not in the right
pocket but only in the left pocket, are flippant grounds which should never
have merited consideration. It is disquieting that the learned single judge      F
has chosen to advance such untenable reasoning to find fault with the
evidence of PW5 which was supported by witnesses like PW4-DSP.

      We have no doubt that the High Court has misdirected itself by such
patently wrong and tenuous considerations and it resulted in the unmerited       G
acquittal of accused against whom the prosecution succeeded in making
out a fool-proof case under Section 161 of the Indian Penal Code and
Section 5(2) of the Prevention of Corruption Act 1947.

     We, therefore, allow the State appeal and set aside the impugned
judgment and restore the conviction passed by ihe trial court. However,          H
                                                                                 .__

    464                  SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A due to this distance of time - between the date of commission of the offence
  and now - we are not inclined to impose a sentence of rigorous imprison-
  ment fo~ more than one year and a fine. Accordingly we sentence the
  respondent to undergo rigorous imprisonment for one year each under the
  two counts and a fine of Rs. 5,000 each (total Rupees ten thousand) in
B default of payment of which he would undergo imprisonment for a further
  period of one year. The substantive sentences shall run concurrently. The
  appeal is thus allowed.

    v.s.s.                                                    Appeal allowed.




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