Andhra HC (Pre-Telangana)
In Re: Venkatarama Iyer vs Unknown on 21 October, 1955
Author: Krishna Rao
Bench: Krishna Rao
JUDGMENT Krishna Rao, J.
1. The appellant was the Station Master of Kalahasti railway station. He has been sentenced by the Assistant Sessions Judge of Chittoor sitting as a Special Judge, to rigorous imprisonment for two months and also to pay a fine of Rs. 100/- with rigorous imprisonment for one month in default, for having on 14-12-1953 accepted an illegal gratification of Rs. 7-14-0 from Alla Pichai Rowther for booking tanning bark by the railway, an offence punishable under Section 161, Indian Penal Code.
2. The case was the result of a trap laid by P. W. 7, the Sub-Inspector in which P. W. 1 Alia Pichai Rowther acted as the decoy. The facts, according to the prosecution, are briefly these. P. W. 1 was a merchant at Kalahasti doing business in tanning bark, which he used to export from Kalahasti by rail and lorry to various places Even before the appellant joined at Kalahasti railway station, it had been the practice of merchants to give illegal gratification to the station masters there for booking goods by rail.
After the appellant became the Station Master, he carried on the mamool. On 3-9-1953, when P.W. 1 booked 10 bags of tanning bark, the appellant demanded at 0-12-0 per bag instead of 0-4-6 per bag as before. P. W. 1 offered Rs. 5/-, but the appellant refused to take it. P. W. 1 went away without paying anything for consignment, Nevertheless, the goods were duly booked and despatched. A second consignment of 11 bags was booked by P. W 1 on 2-12-1953.
On that occasion, he paid the appellant Rs. 4-2-0 at the rate of 0-6-0 per bag, as illegal gratification. We next come to the consignment of 13 bags on 14-9-1953. which forms the subject matter of "the charge. A few days earlier, P. W. 7 the sub-inspector of Police attached to the special police establishment at Madras, had contacted P. W. 1 and on the latter's consenting to act as a decoy, arranged for the laying of a trap. For this purpose, he obtained the permission of the Additional District Magistrate, Chittoor on 10-12-1953 to take the assistance of P. W. 4, the Taluk Magistrate at Kalahasti.
On 14-12-1953 at about 8-30 a.m., P.W. 7 took P.W. 1 to P.W. 4. P.W. 1 produced one two rupee note and six one rupee notes and made a statement that he was going to give them at about 3 p. m. that day as bribe to the appellant, as he had to pay the latter Rs. 7-14-0 at the rate of 0-6-0 per bag for 13 bags to be booked that day and for 8 bags previously booked in September, 1983. In this statement Ex. P-5 P.W. 4 has taken down the numbers of all the seven notes.
3. In accordance with the Plan for the trap agreed to on that morning p. Ws. 4 and 7 went to the railway station at about 3-30 P. M, P. W. 2, a mazdoor, and P. W, 3, trader happened to be on the platform. P. W. 7 asked each of them to follow P. W. 1 and to watch the transaction between P. W. 1 and the appellant. P. W. 2 has instructed to come out of the station master's room and to take off his turban cloth as a signal as soon as P. W. 1 paid money to the station master. While P. Ws. 4 and 7 were waiting on the platform, p. W. 5, the Revenue Inspector who happened to come to meet P. W 4 on some other business, joined them.
4. The crucial evidence as to what happened inside the station master's room was given by P. Ws. 1 to 3. According to P. W, 1, he asked the appellants for the railway receipt the consignments having been already booked in the morning. The appellant asked him what the mamool amounted to. P W. 1 replied that it amounted to Rs. 7-14-0, gave the appellant the two rupee note and six one rupee notes and got the railway receipts as well as the balance of O-2-o from the appellant.
According to P. Ws. 2 and 3, however, they merely saw P. W. 1 paying the amounts to the appellant. Although P. W. 2 stood close to P. W. 1 and P, W. 3 stood at the entrance to the room, neither of them speak to having heard the conversation between P. W. 1 and the appellant, nor about the amount paid, nor purpose of the payment. As soon as the payment was made. P. W. 2 came out of the room and gave the pre-arranged signal.
5. Immediately, P. Ws. 4, 5 and 7 went into the station master's room, P. Ws. 4 and 7 disclosed who they were and asked the appellant to produce the amount given to him as bribe by P. w. 1. The appellant remained silent and according to the evidence of P Ws. 4 and 7 at the trial, the appellant also said that he had not received any amounts at all from P. W. 1. On the table of the appellant, there were 87 rupees in notes and fourteen rupees in coin besides one hundred rupee note, which represented the railway collection for the day.
The two rupee note and two of the six one rupee notes of P. W. 1, the numbers of which had been noted in Ex. P-5. were found among the notes on the table. P. W. 4 asked the appellants whether he had any other cash and the latter showed a cloth bag inside the right hand of his table, saying that it contained his private money. This bag contained a sum of Rs. 157/- in notes and change and the remaining four one rupee notes of P. W. 1 were found in them. P. W. 4 seized the incriminating notes, viz., the two rupee note and the six one rupee notes, under a Mahazar Ex. P-10.
When questioned whether he had anything to say, the appellant replied that he was left with a shortage of Rs. 4/- in the railway collections owing to the seizure of the amounts from the table and decline to give any statement in writing. P. W. 4 received the statements of P. Ws. 1 to 3 on the spot and also drew up his proceedings Ex. P-13 giving an account of what took place. His evidence is that P. W. 1 showed him the railway receipts and a two anna coin as having been given to him by the appellant, in exchange for Rs. 8/- he paid to the latter. P. W. 7 filed the charge-sheet, after obtaining sanction for prosecuting the appellant.
6. The appellant admitted that he received the notes in question amounting to Rs. 8/- from P. W. 1 and that the notes were subsequently seized by P. W. 4. His defence was that P. W. 1 did not sive the amount as a bribe to him, but that P. W. 1 wanted change for the amounts and that he gave the change to P. W. 1. He gave change for Rs. 4/- from the railway collections and explained that as he wanted to get rid of the small coins in his private money, he gave the change for the remaining four rupees from his private money.
Apcording to him he handed over to p. W. 1 the railway receipt Ex. P-7 for the tanning bark booked on that day, at about noon immediately after the goods were loaded and the wagons sealed. Thus the main dispute between the prosecution and the defence was as regards whether P. W. 1 gave the Rs. 8/- to the appellant as a bribe or for obtaining change.
7. The answer to this question depends solely on P. W. 1's uncorroborated evidence. As already mentioned, P. Ws. 2 and 3, who were sent for the specific purpose of watching the transaction between P. W. 1 and the appellant were unable to say anything about the alleged incriminating conversation between P. W. 1 and the appellant in the station master's room or the circumstances in which P. W. 1 paid Rs. 8/- to the appellant, It has also to be noticed that one mode by which P. W. 1's testimony could have been corroborated was not availed of by P. Ws. 4 and 7. They did not search the person of P. W. 1 immediately before he entered the appellant's room and immediately after he came out of it. If they had done so and if P. W. 1 had no articles on his person except the notes amounting to Rs. 8/- before he went into the room and had only the railway receipts and a two anna coin after he emerged from the room, these would have conclusively established the truth, of P. W. 1's evidence.
The explanation which was given by them for their omission in this respect which was accepted by the learned Special Judge, was that this was their first trap case and that they had no previous experience of such cases. To my mind the explanation appears to be unconvincing. In the statement Ex. P-5 given by P. W.1 in the morning P. W. 4 has noted:
I need not pay him (appellant) anything as a debt. There is no concern whatever. I did (do) not carry any other money. This is the money that will be given to him on his asking with pressure.
The sentences indicate that a possible defence by the appellant was anticipated that P. W. 1 gave the amounts in discharge of a debt. The importance of P. W. 1 having no other money on his person also appears to have been anticipated. In fact P. W. 4's evidence is that although he did not search P. W. 1's person in the morn, P. W. 1 showed his pockets saying that he had no money except rupees, eight.
It appears, therefore, that although P. Ws. 4 and 7 were aware in the morning of the importance of P. W 1 having nothing on his person except a sum of Rs. 8/-, they omitted to search him and verify the fact at the crucial time. Whatever be the true reason for their not searching P. W 1, the fact remains that P. W. 1's evidence as to the nature of transaction between him and the appellant stands uncorroborated.
8. The rule of prudence requiring corroboration for the testimony of a trap witness has always been recognised. In Huntley v. Emperor 1944 Mad WN 430 : AIR 1S44 PC 66(A), such a Witness was regarded as an accomplice. With regard to the appreciation of the evidence in such cases, Zafrullah Khan J., who delivered the judgment of the Federal Court observed:
A charge under Section 161 of the Indian Penal Code which is easily and may often be lightly made, but is in the very nature of things difficult to establish, as direct evidence must in most cases be meagre and of a tainted nature. These considerations cannot however be suffered to relieve the prosecution of any part of the burden which rests upon it to establish the charge beyond reasonable doubt. If after everything that can legitimately be considered has been considered giving its due weight, room still exists for taking the 'view' that however strong the suspicion raised against the accused, every reasonable possibility of innocence has not been excluded, he is entitled to an acquittal.
In Shiv Bahadur Singh v. State of Vind. Pra. the trap witnesses were held to be partisan witnesses for whose testimony independent corroboration is required. The position was exhaustively discussed by Ramaswamy J., in Ambujammal v. State the learned Judge pointed out that an accomplice, according to the accepted meaning, is a guilty associate or partner in a crime and that spies, detectives and decoys who set a trap do not generally belong to the category of accomplices because they frequently act with the sole purpose of protecting the interests of the public and the society and do not share the mens rea.
It is manifest that the question whether a particular trap witness is an accomplice in law or not must depend upon the circumstances of each case. In the present case, P. W. 1 was admittedly a person who was in the habit of bribing station masters in order to secure the booking of his goods by rail. His story is that he had no grievance in that respect and that only because P. W. 7 contacted him he became a party to the trap.
He was therefore in the position of an accomplice rather than that of an honest trap witness. The reasons why accomplice evidence is held to be untrustworthy and to require corroboration are that from the very nature of his evidence (1) he is a person of low character who has participated in a crime and is therefore likely to have no regard for the sanctity of his oath; (2) he is interested in falsely distorting the facts in order to shift the guilt from himself and (3) that he has the inducement of either a promised or implied pardon for his own part in the crime and is therefore likely to be biased in favour of the prosecution.
No doubt every one of these reasons might not apply to a trap witness. P. W. 1 was probably giving bribes to the station masters because he could not secure the booking of his goods, otherwise and to this extent was an unwilling accomplice. But he was a habitual bribe giver for which offence he expects not to. be prosecuted by shifting the blame on the station masters. He is also interested in the success of the trap, and for these reasons would be biased in favour of the prosecution, Therefore, the least that can be said is that he is a partisan witness as in the Supreme Court decision , and that his evidence does require corroboration.
9. The learned Special Judge recognised the necessity for the corroboration of P. W, 1's evidence, but gave various reasons for accepting it as true without corroboration. As contended by Sri P. Basi Reddy, the learned Counsel for the appellant most of these reasons cannot stand scrutiny. To say as the learned Special Judge has done that the admitted fact of p. W. 1's having booked his goods on 14-12-1953 probabilises his evidence amounts to merely begging the question.
The learned Special Judge also thought that if the appellant had given change to P. W. 1, as alleged by him, P. Ws, 2 and 3 would have observed it. But P. Ws. 2 and 3 did not observe the appellant giving the railway receipt or the two annas change to P. W. 1 either. They did not also even hear the incriminating conversation between the appellant and P, W. 1, prior to the payment Of the alleged payment. Obviously for some reason or other, they did not watch what happened between P. W. 1 and the appellant, as they were expected to do.
Therefore, no inference can be drawn from the fact that they did not observe the appellant giving change to P. W. I. The learned Special Judge was in error in observing that no suggestion was made in cross-examination about the appellant giving change to P. W. 1. The suggestion was made to P. W. 3 who gave the answer "I do not know whether P. W. 1 was asking the accused for any change." The learned Special Judge further thought that persons would change only currency notes of high denominations and not two rupee and one rupee notes.
But P. W. 1 has admitted that he used to get currency notes changed at the station in order to pay his coolies. Small change would be required for paying the coolies, and there is nothing intrinsically improbable in P. W. 1 approaching the appellant for changing two rupee and one rupee notes. The learned Special Judge regarded the applicant's action in taking a part of the change from the railway collections and another part of the change from his private money as a circumstance against the appellant's story.
But there is nothing improbable in the appellant's explanation that he wanted to get rid of some of the change in his private money. The appellant merely said that owing to the seizure of a sum of Rs. 4/- from his table, the railway collections fell short by Rs. 4/- .There is no basis for the learned Special Judge's reasoning that the railway collections originally fell short by Rs, 4/- and therefore that the appellant placed Rs. 4/- out of the amount paid by p. W. 1 with the railway collections. The learned Special Judge drew an adverse inference from the appellant's conduct in declining to give a statement to P. W. 4 on the spot.
But this point was not put to the appellant as it ought to have been done, when he was examined under Section 342 Code of Criminal Procedure, As urged by Sri P. Basi Reddy, if the appellant had been questioned about it, it might have given a satisfactory answer, such as that he was stunned by P. W. 1's duplicity and did not immediately know what to say or that he considered that there was no use in telling p. W. 4 anything because P. W, 1 had deliberately come to trap him. It has to be noticed that the 1st question which P. W. 4 asked the appellant on entering the room was to produce the bribe paid by P. W. 1 and therefore, the appellant might well have thought that P. W. 4 had made up his mind and pre-judged the nature of the transaction.
10. Sri Basi Reddy does not dispute that if, as alleged by P. Ws, 4 and 7 at the trial, the appellant's first answer to P. W, 4 was that he had not received any money from P. W. 1 at all, this false answer would be a very strong circumstance against the appellant. But this fact was given out by p. Ws. 4 and 7 for the first time only at the trial. It is mentioned either in the record of his proceeding Ex-P-13 prepared by P. W. 4, or in any of the other documents, prepared on the spot or on the first information Ex. P. 15 prepared by P ,W. 7. P. W. 5, the Revenue Inspector who accompanied P. Ws. 4 and 7 does not speak to it.
The learned Counsel's criticism that this portion of the evidence of P. Ws. 4 and 7 is not true and that they have allowed their zeal for the success of the case to outrun the facts is well founded. In my opinion this illustrates the danger Of accepting the truth of every word spoken to by the trap witnesses. The portion of the evidence of P. Ws. 4 and 7 that the appellant denied altogether having received any money from P. W. 1 cannot be relied upon.
11. The only other point made out in favour of P. w. 1 by the learned Special Judge is P. W. 1's demeanour. The learned Special Judge has observed with reference to P. W. 1:
I have watched him and his demeanour carefully in court and he does not appear to be an intelligent, resourceful or crafty type of person who would come forward to foist a case on the accused by perjury consistently....On the other hand, he appeared to be an honest, straightforward and untroublesome individual.
No doubt, the observations of a trial judge as regards the demeanour of witnesses are entitled to great weight. The look or manner of a witness while in the witness box, his hesitation and doubts or confidence and calmness and similar facts are facts which only the trial judge is in a position to and is expected to observe. But Section 363, Code of Criminal Procedure lays down:
When a Sessions Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as ho thinks material respecting the demeanour of such witness whilst under examination.
The language of the section is imperative and stands in contrast to the similar provision in Order XVIII Rule XII, Code of Civil Procedure which runs:
The court may record such remarks as it thinks material respecting the demeanour of any witness while under examination.
It is a salutary rule that the facts observed by a trial Judge regarding the demeanour of a witness while in the witness box should be immediately placed on record by the judge, especially in cases involving the liberty of the citizen. This would avert criticism or suspicion that the facts relating to the demeanour of the witnesses were made to suit the ultimate conclusion reached by the trial judge. The omission may be immaterial where, as observed by Lord Atkin during the arguments is Seethalakshmi Annual v. Venkatasubramanian 34 Cal WN 593 : AIR 1930 PC 170(D), the judge writes his judgment a very few days after the close of the evidence and before his recollection of the witnesses' demeanour in the box has become dim.
But here P. W. 1's evidence was taken on 6-6-1954 and 20-9-1954 and the judgment was delivered only on 12-10-54. The interval between the evidence and the judgment was not merely ten days as in Seetha Lakshmi Ammal v. Venkata Subrahmanian (D), but was about 3 weeks after the further cross examination. The learned Special Judge's observations, which have not been recorded in the manner prescribed by Section 363 Cr. P. C. can be taken only as reflecting his opinion as to the credibility of P. W. 1 on a consideration of the entire evidence and not as facts observed by the judge while P W. 1 was in the witness box. In this connection reference may be made to Yuill v. Yuill 1945-1 All ER 183 at pp. 188 and 189(E), where Lord Greene, M. R. said:
The most experienced judge may, albeit rarely, be deceived by a clever liar or led to form an unfavourable opinion of an honest witness and may express his view that, his demeanour was excellent or bad, as the case may be....I may further point out that an impression as to the demeanour of a witness ought not to be adopted by a trial judge without testing it against the Whole of the evidence of the witness in question. IE it can be demonstrated to conviction that a witness whose demeanour has been praised by a trial judge has on some collateral matter deliberately given an untrue answer, the favourable view fomed by the judge as to his demeanour must necessarily loose its value.
12. We have to consider whether, on a scrutiny of the evidence of P. W. 1, the impressions formed by the learned Special Judge about the witness's credibility are correct. In Ex. P-5, P. W. 1 had stated that the appellant used to collect illegal gratification at the rate of 0-4-0 per bag, but in the witness box. he denied the fact and said "I had not paid 0-4-0 per bag before." In Ex. P-5, his version was that he had booked only 8 bags in September.
This was also number of bags with reference to that transaction in September mentioned in Exs. P. 1.3 and P. 15. It was consistent with P. W. 1 having paid illegal gratification for only 8 bags, when he settled that account on 14-12-53. But at the trial, the number of bags consigned in September was increased by P. W. 1 to ten bags, in order to be consistent with the railway receipt Sx. P. 2 and P, W, 1 professed in cross examination not to remember the exact number At the trial. P. W. 1 admitted that when he went to p. W, 4 in the morning, he had 2 or 4 annas in his pocket besides the currency notes for Rs. 8/- which he showed to P. W. 4. But P W. 4's evidence is that P. W. 1 showed his pockets and did not have any money besides the Rs. 8/-. Thus P. W. 1 was able to play a stratagem on P. W. 4 in the morning. According to P. W. 1, the goods were loaded in his presence in the wagons only in the afternoon at about 2 or 2-30 p.m. But this is contradicted by the evidence of the booking clerk P. W. 6 which is supported by the entry Ex. D-4 in the Vehicle Register, that the goods were loaded in the wagon between 3 a.m. and noon and that the loading and the sealing of the wagon were all completed by noon, P. W. 1 is an experienced businessman and as observed in Emperor v. Anwar Ali AIR 1943 Lah 27 at p. 29(F) It cannot be remembered too carefully that persons who lend themselves for use as decoys and agents provocateur possess ingenuity and suppleness of wit above the ordinary. No stupid or simple person could ever hope to perform such a function.
On a careful reading of P. W. 1's evidence, I am unable to agree with the learned Special Judge that P. W. 1 was an honest and straightforward witness, whose evidence can be accepted without any question, In my opinion, P. W. 1 is an intelligent person, who is quite capable of distorting the facts to ensure the success of the trap in which he participated. It would be extremely unsafe to depart from the ordinary rule of prudence that the evidence of such a witness, whether he be classed as an accomplice or merely a partisan, require corroboration.
13. As there is absolutely no corroboration for P. W. 1's story that he gave the rupees eight as illegal gratification and not for the purpose alleged by the appellant of obtaining change which was immediately given to him, the conviction cannot be supported. The result is perhaps unfortunate and could have been avoided if P. Ws. 4 and 7 had searched the person of P. W. 1 before he went into the appellant's room and immediately after he came out. But there is no justification for departing from the standard of proof required in such cases, and in the absence of corroboration, P. W. 1's evidence cannot be relied upon.
14. The appeal is allowed, the conviction and sentence of the appellant are set aside, and he is acquitted. His bail bond is cancelled. The fine, if paid, shall be refunded.