Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mehdi Pandit vs State Of J&K on 18 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 10.07.2025
Pronounced on: 18.07.2025
CRA No.43/2018
GHULAM MEHDI PANDIT ... APPELLANT(S)
Through: - Mr. Altaf Haqani, Sr. Advocate, with
Mr. Shakir Haqani, Advocate,
Mr. Aasif Wani, Advocate.
Vs.
STATE OF J&K ...RESPONDENT(S)
Through: - Mr. Mohsin Qadiri, Sr. AAG, with
Ms. Nadiya Abdullah, Assisting Counsel.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The present appeal is directed against the judgment dated 26.09.2018 passed by the learned Special Judge Anticorruption, Kashmir, Srinagar (hereinafter referred to as the trial court) whereby the appellant has been convicted of offences under Section 5(1) read 5(2) of J&K Prevention of Corruption Act [ for short "the PC Act"] and Section 161 of RPC. Vide the impugned judgment, the appellant has been sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.15000/ in proof of offence under Section 5(1) read with 5(2) of the PC Act. The appellant has been further sentenced to undergo six months simple CRA No.43/2018 Page 1 of 39 imprisonment for offence punishable under Section 161 RPC and to pay a fine of Rs.2500/. Both the sentences have been directed to run concurrently and in default of payment of fine, the appellant has been further directed to undergo simple imprisonment for three months.
2) As per the prosecution case, on 2nd April, 2007, complainant-PW Mohammad Ramzan Bhat lodged a written complaint before the Vigilance Organization, Kashmir, alleging therein that the case pertaining to pathway to his house situated near Srinagar Airport is pending before the Deputy Commissioner, Budgam. It was alleged in the complaint that the relevant file is pending before the appellant/accused, who is posted as Clerk in DC Office, Budgam, for processing and clearing. According to the complainant, the appellant/accused was demanding an illegal gratification of Rs.5000/ for processing the file whereas the complainant had been able to arrange only Rs.3000/. It was stated in the complaint that the complainant was reluctant to pay bribe to the appellant/accused and prayed for action against him.
3) On the basis of aforesaid complaint, FIR No.21/2007 for offences under Section 5(2) of the PC Act read with Section 161 of RPC came to be registered with Police Station CRA No.43/2018 Page 2 of 39 Vigilance Organization, Kashmir (VOK) and investigation was commenced. A trap team comprising officers/officials of VOK was constituted for laying trap against the appellant/ accused. Services of one independent witness, PW-Mushtaq Ahmad Mir, AE Urban Local Bodies, Srinagar, were also requisitioned and he was associated in the trap proceedings. The complainant is stated to have produced Rs.3000/ comprising one currency note of Rs.1000/ denomination, two currency notes of Rs.500/ denomination and ten currency notes of Rs.100/ denomination before the members of the trap team.
4) After conducting pre-trap demonstration, the complainant along with other members of the trap team proceeded to the office of Deputy Commissioner, Budgam, where the complainant along with independent witness, PW- Mushtaq Ahmad Mir went inside the office room of the appellant and in pursuance of his demand, the complainant tendered currency notes that were smeared with Phenolphthalein powder to the appellant/accused who accepted the same. Thereafter a pre-fixed signal was given by the independent witness to other members of the trap team who rushed to the spot and apprehended the appellant/accused. Upon search of right pocket of his coat, CRA No.43/2018 Page 3 of 39 the tainted money was recovered from the possession of the appellant which was seized on spot. Thereafter the appellant/accused was made to wash his hands in the solution of Sodium Carbonate which turned pink. Similarly, right pocket of coat of the appellant/accused was also washed in Sodium Carbonate solution and the same also turned pink. These solutions were put in bottles and the same were sealed on spot. Thereafter the appellant/accused was arrested and during his personal search, a Nokia phone, identity card, a cheque for an amount of Rs.1.60 lacs and cash amount of Rs.4050/ was also seized. During investigation of the case, residential house of the appellant/accused was also subjected to search and certain documents relating to property were recovered therefrom.
5) During investigation of the case, it was revealed that BSF had acquired a piece of land measuring 02 kanal and 07 marlas under Survey Nos.1045 and 1046 near Srinagar Airport for establishment of camping site. The complainant and his co-sharers were possessing land measuring 01 kanal and 14 marlas along with residential/shopping complex in Survey No.1045 and the only approach path to the said land was through Survey No.1046 that had been acquired by the BSF. It was also found that the complainant was not being CRA No.43/2018 Page 4 of 39 allowed to use the pathway by the BSF authorities which compelled him to approach the Deputy Commissioner, Budgam, with a representation. The Deputy Commissioner vide his communication dated 29.03.2017 had taken up the matter with the BSF authorities but the appellant/accused had retained the said communication with him upto 2nd April, 2007, on which date the trap proceedings were conducted. It was found that the appellant/accused had dishonestly withheld the said communication with the intention of obtaining illegal gratification from the complainant. Thus, after investigation of the case, offences under Section 5(1)(d) read with Section 5(2) of PC Act and Section 161 of RPC were found established against the appellant/accused and the challan was laid before the Court of Special Judge, Anti-Corruption, Srinagar.
6) Vide order dated 23.10.2007, the learned trial court framed charges for offences under Section 5(1) read with 5(2) of the PC Act and Section 161 of RPC against the appellant/accused, who denied the charges and claimed to be tried. Accordingly, the prosecution was directed to lead evidence in support of the charges. In order to prove the charges, the prosecution besides examining complainant Mohammad Ramzan Bhat and shadow witness PW Mushtaq CRA No.43/2018 Page 5 of 39 Ahamd Mir, also examined the members of the trap team, namely, PWs Constable Zameer Ahmad, Constable Mohammad Maqbool, Inspector Irshad Ahmad Wani and Inspector Abdul Hamid Dar as witnesses in support of their case. PWs Inspector Qazi Mehmood and Inspector Mohammad Shafi Sheikh were examined to prove the investigation whereas other witnesses, namely, PWs Naseerdin Wani (SSP) and Ghulam Hassan Bhat (SSP) were also examined by the prosecution.
7) After completion of the prosecution evidence, the incriminating circumstances appearing in the prosecution evidence were put to the appellant/accused for seeking his explanation and, accordingly, his statement under Section 342 of J&K Cr. P. C. was recorded on 06.04.2016. In his statement the appellant/accused put up a defence that he was undergoing training at Revenue Training Institute with effect from 3rd November, 2006 to 2nd April, 2007 and, as such, was not working in the office of DC, Budgam, on the relevant date when the complaint was lodged against him. He expressed his ignorance about the trap proceedings, the seizure of tainted money and the recovery of the said money from his possession. He also denied the proceedings relating to hand wash and pocket wash during the post trap CRA No.43/2018 Page 6 of 39 proceedings and claimed that he has been falsely implicated. The appellant/accused entered his defence and produced three witnesses, namely, DWs Johar Ali, Mukhtar-ul-Aziz and Ghulam Jeelani Khan.
8) After the defence evidence was closed, the prosecution moved an application under Section 540 of J&K Cr. P. C for examining Mr. Mohammad Maqbool Wani, the then Additional Deputy Commissioner, Budgam, as witness. The said application was allowed by the learned trial court vide order dated 10.05.2018 whereafter the statement of PW Mohammad Maqbool Wani was recorded on 01.06.2018. The incriminating circumstances appearing in the said statement were put to the appellant/accused and his further statement under Section 342 of J&K Cr. P. C was recorded on the same day i.e. on 01.06.2018. After completion of the evidence of the parties, the case was sent down for final hearing.
9) The learned trial court vide the impugned judgment dated 19.09.2018 framed five points for determination, which are reproduced as under:
1. Whether complainant's file pertaining to path way leading to his residential house was pending before DC Budgam and to process and clear the file, the accused demanded illegal gratification of Rs.5000/-CRA No.43/2018 Page 7 of 39
initially and complainant was deficient of money and could arrange only Rs.3000/-?
2. Whether complainant reluctantly agreed to pay bribe to the accused for processing and clearing the file with regard to path way?
3. Whether the complaint being against the corruption approached the VOK officials who constituted a trap team to trap the accused?
4. Whether on the day of trap accused demanded and accepted Rs.3000/- as bribe from the complainant?
5. Whether tainted money was recovered from the right pocket of the coat of the accused and the results of the chemical tests carried out on spot also confirmed that he had handled those currency notes?
10) After analysing the evidence on record, the learned trial court vide the impugned judgment came to the conclusion that the prosecution has succeeded in proving the initial demand of illegal gratification made by the appellant/ accused from the complainant who was reluctant to pay the same for clearing his file relating to pathway. The learned trial court further came to the conclusion that even during trap proceedings, the prosecution has succeeded in proving the demand of illegal gratification on the part of the appellant/accused, pursuant whereto, an amount of Rs.3000/ was paid by the complainant to the appellant/ accused who accepted and put the same in right pocket of his coat, wherefrom the same was recovered. The learned CRA No.43/2018 Page 8 of 39 trial court also concluded that chemical tests carried out on spot confirmed that the appellant/accused had handled the tainted currency notes. On the basis of these findings, the learned trial court recorded the impugned judgment of conviction and sentence against the appellant/accused and the same has been assailed by him by way of present appeal.
11) It has been contended by the appellant that the impugned judgment is against the facts and the legal position. It has been contended that no valid evidence was brought on record by the prosecution to prove the demand and recovery of the tainted money. It has been contended that there are inherent inconsistencies in the statement of the complainant and the said statement has not been corroborated by the statement of shadow witness and, therefore, it was not open to the learned trial court to place reliance upon uncorroborated testimony of the complainant who is an accomplice and an interested witness. It has been contended that the presumption drawn by the learned trial court on the basis of recovery of the tainted money from the appellant/accused is contrary to the legal position because in the present case the demand and acceptance of tainted money has not been established. It has been further contended that the appellant was neither competent nor had CRA No.43/2018 Page 9 of 39 any occasion to help the complainant in his case and that he was not even present in the office on the date of alleged trap as he was undergoing training at IMPA. It has been further contended that the solution produced by the prosecution before the court during the trial of the case was not having pink colour and the prosecution had failed to explain as to why the hand wash and pocket wash of the appellant had not turned pink and as to why the same were not properly sealed. It has been further contended that the learned trial court has failed to properly appreciate the evidence on record including the evidence led in defence.
12) I have heard learned counsel for the parties and perused the impugned judgment, the grounds of appeal, evidence on record and the record of the trial court.
13) As already stated, the charge against the appellant/accused which was subject matter of trial before the learned trial court is that he, in his capacity as Senior Assistant in the office of Deputy Commissioner Budgam, had demanded illegal gratification from the complainant, PW Mohammad Ramzan Bhat, for processing his file relating to providing of pathway to his property situated near Srinagar Airport and when the trap was laid by the sleuths of VOK on 02.04.2007, the appellant/accused had demanded and CRA No.43/2018 Page 10 of 39 accepted tainted currency notes amounting to Rs.3000/ which were later on recovered from the right pocket of his coat.
14) The learned Senior Counsel appearing for the appellant has laid much emphasis on the contention that in the present case the demand of illegal gratification by the appellant/accused from the complainant at the time of trap proceedings is not established. It has been contended that the shadow witness, PW Mushtaq Ahamd Mir, has categorically stated that he did not witness as to what had transpired between the complainant and the appellant/ accused in the office room of the accused because as soon as he went inside the said room, he found one of the persons known to him sitting inside the said room and he came out of the room because he had been instructed by the officials of the Vigilance that in case there is some person known to him inside the office, he should come out of the office room. The learned Senior Counsel has contended that that in his cross-examination the shadow witness, PW Mushtaq Ahmad Mir, has clarified that he did not hear the conversation between the accused and the complainant nor did he see passing of money from complainant to the accused and he also did not see the appellant/accused putting money in the CRA No.43/2018 Page 11 of 39 pocket of his coat. According to learned Senior Counsel, in the absence of corroboration to the statement of the complainant as regards the demand and acceptance of tainted money by the accused during trap proceedings, the same cannot be relied upon. It has been submitted that the complainant in a trap case has to be treated as an accomplice and his uncorroborated testimony cannot be relied upon. Thus, according to the learned Senior Counsel, the essential ingredients of demand and acceptance of tainted money by the appellant/accused during the trap proceedings have not been established and, therefore, mere recovery of the tainted money from the possession of the appellant/accused would not be enough to record conviction against him. To support his contention, the learned Senior Counsel has placed reliance upon the following judgments
(i) Raghbir Singh vs. State of Punjab, (1976) 1 SCC 145;
(ii) Panalal Damodar Rathi vs. State of Maharashtra, (1979) 4 SCC 526;
(iii) Suraj Mal vs. State(Delhi Administration) (1979) 4 SCC 725;
(iv) Resham Singh vs. The State, (1981) CriLJ 1691;
(v) Smt. Meena Hemke vs. State of Maharashtra, (2000) 5 SCC 21;
(vi) Charan Dass vs. State & others, (2004) 1 JKJ 218;
(vii) B. Jayaraj vs. State of A.P,(2014) 13 SCC 55;
(viii) P. Satyanarayana Murthy vs. District Inspector of Police & Others, (2015) 10 SCC 152;
(ix) Selvaraj vs. State of Karnataka, (2015) 10 SCC 230; CRA No.43/2018 Page 12 of 39
15) There is no dispute to the legal position that in order to prove an offence under Section 5(2) of the J&K PC Act read with Section 161 of RPC, it is incumbent upon the prosecution to prove with cogent and convincing evidence that the accused made the demand of illegal gratification, that pursuant to the said demand the illegal gratification was paid to the accused and the same was recovered from him. Unless all the aforesaid three aspects of the case are proved beyond reasonable doubt, the legal presumption arising out of Section 4 of the J&K PC Act does not get attracted. The question that is required to be determined in the instant case is whether in the absence of corroboration to the statement of the complainant, PW Mohammad Ramzan Bhat, to demand and acceptance of illegal gratification by the appellant/accused during the trap proceedings by the shadow witness, PW Mushtaq Ahmad Mir, it can be stated that the said essential ingredient of offence under Section 5(2) of PC Act read with Section 161 of RPC is established.
16) In order to find an answer to the aforesaid question, it would be apt to survey legal position regarding the reliability of uncorroborated testimony of a trap witness that has CRA No.43/2018 Page 13 of 39 emanated from various precedents handed down by the Supreme Court from time to time.
17) The Supreme Court has, in the case of Prakash Chand vs. State Delhi Administration, (1979) 3 SCC 90, while dealing with the issue as to whether conviction can be based on uncorroborated testimony of a trap witness, held that a trap witness may perhaps be considered as a person interested in the success of trap and that may entitle a Court to view his evidence as that of an interested witness. The Court further held that where the circumstances justify it, a Court may refuse to act upon the uncorroborated testimony of a trap witness but on the other hand, a court may well be justified in acting upon the uncorroborated testimony of a trap witness if the court is satisfied from the facts and circumstances of the case that the witness is a witness of truth.
18) In M. O. Shamsudhin vs. State of Kerala, (1995) 3 SCC 351, the Supreme Court has, while dealing with the argument that statement of a bribe giver being in the nature of an accomplice cannot be relied upon without corroboration, explained the legal position on the issue in the following manner:
CRA No.43/2018 Page 14 of 39
11. Since this is an argument which is frequently put forward in all cases of bribery, we would like to examine the scope, nature and extent of corroboration that is necessary in such cases.
The word 'accomplice' is not defined in the Evidence Act. However, it is accepted that the word is used in its ordinary sense which means and signifies a guilty partner or associate in a crime. Illustration (b) to Section 114 in a way cautions the court to bear in mind the presumption that an accomplice is not worthy of credit unless he is corroborated in material particulars. Section 133 of the Act, however, declares that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice. The relation between Section 133 which is a rule of law and Illustration (b) to Section 114 which is a rule of prudence has been the subject of comment in a large number of decisions. However, it has emerged that a conviction based on the uncorroborated testimony of an accomplice is not illegal though an accomplice may be unworthy of credit for several reasons. Reading Section 133 and Illustration (b) to Section 114 of the Evidence Act together, the courts in India have held that while it is not illegal to act upon the uncorroborated testimony of the accomplice the rule of prudence so universally followed has to amount to rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material aspects so as to implicate the accused. The reasons for requiring corroboration of the testimony of an accomplice are that an accomplice is likely to swear falsely in order to shift the guilt from himself and that he is an immoral person being a participator in the crime who may not have any regard to any sanction of the oath and in the case of an approver, on his own admission, he is a criminal who gives evidence under a promise of pardon and supports the prosecution with the hope of getting his own freedom.
12. Now confining ourselves to the case of bribery it is generally accepted that the person CRA No.43/2018 Page 15 of 39 offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe-givers are generally treated to be in the nature of accomplices but among them there are various types and gradations. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by the public servant from a person who is unwilling, and if to do public good approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. There could be another type of bribe-giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus, there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of 'accomplices' by reason of their being bribe- givers, in the first instance, the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances.
CRA No.43/2018 Page 16 of 39
13. The word 'corroboration' means not mere evidence tending to confirm other evidence. In DPP v. Hester , Lord Morris said:
"The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible...."
In DPP v. Kilbourne , it was observed thus:
"There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in."
14. In R. v. Baskerville , which is a leading case on this aspect, Lord Reading said:
"There is no doubt that the uncorroborated evidence of an accomplice is admissible in law.... But it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence.... This rule of practice has become virtually equivalent to a rule of law, and since the Court of Criminal Appeal Act, 1907, came into operation this Court has held that, in the absence of such a warning by the judge, the conviction must be quashed.... If after the proper caution by the judge the CRA No.43/2018 Page 17 of 39 jury nevertheless convicts the prisoner, this Court will not quash the conviction merely upon the ground that the testimony of the accomplice was uncorroborated."
15. In Rameshwar v. State of Rajasthan, Bose, J., after referring to the rule laid down in Baskerville case with regard to the admissibility of the uncorroborated testimony of an accomplice, held thus:
"That, in my opinion, is exactly the law in India so far as accomplices are concerned and it is certainly not any higher in the case of sexual offences. The only clarification necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury. In these cases it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case."
Justice Bose in the same judgment further observed thus:
"I turn next to the nature and extent of the corroboration required when it is not considered safe to dispense with it. Here, again, the rules are lucidly expounded by Lord Reading in Baskerville case at pages 664 to 669. It would be impossible, indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged. But to this extent the rules are clear.
First, it is not necessary that there should be independent confirmation of every material CRA No.43/2018 Page 18 of 39 circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. As Lord Reading says --
'Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony.' All that is required is that there must be 'some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it'.
Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identity must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness's story that the accused was the one, or among those, who committed the offence. The reason for this part of the rule is that --
'a man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all.... It would not at all tend to show that the party accused participated in it.' Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of CRA No.43/2018 Page 19 of 39 course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it was contended that the mother in this case was not an independent source.
Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, 'many crimes which are usually committed between accomplices in secret, such as incest, offences with females' (or unnatural offences) 'could never be brought to justice'. "
16. We shall now refer to some of the judgments wherein the rule of corroboration has been considered in respect of the bribery cases. In Rao Shiv Bahadur Singh v. State of Vindhya Pradesh there are observations to the effect that the evidence of the trap witnesses cannot be taken on its face value thereby indicating that their evidence cannot be relied upon without independent corroboration. In State of Bihar v. Basawan Singh a Bench of five Judges considered this "corroboration requirement"
and after referring to the observations made in Rao Shiv Bahadur Singh case explained them in the following manner:
"If the witnesses are not accomplices, what then is their position? In Shiv Bahadur Singh case (A) it was observed, with regard to Nagindas and Pannalal, that they were partisan witnesses who were out to entrap the appellant in that case, and it was further observed: 'A perusal of the evidence ... leaves in the mind the impression that they were not witnesses whose evidence could be taken as its face value.' We have taken the observations quoted above from a full report of the decision, as the authorised report does not contain the discussion with regard to evidence. It is thus clear that the decision did not lay down any universal or inflexible rule of CRA No.43/2018 Page 20 of 39 rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses. It is plain and obvious that no such rule can be laid down; for the value of the testimony of a witness depends on diverse factors, such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross- examination etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases, as in Shiv Bahadur Singh case (A), where the Court will as a matter of prudence look for independent corroboration. It is wrong, however, to deduce from that decision any universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available."
This Court in the above case concluded thus:
"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 in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in proper case, the Court may even look for independent corroboration before convicting the accused person."
It was further concluded thus:
"As was observed by Lord Reading in Baskerville (C) even in respect of the evidence of an accomplice, all that is required is that there must be 'some additional evidence rendering it probable that the story of the accomplice is true CRA No.43/2018 Page 21 of 39 and that it is reasonably safe to act upon it'. In Rameshwar at p. 385 (B), to which we have referred in an earlier paragraph, the nature and extent of corroboration required, when it is not considered safe to dispense with it, have been clearly explained and it is merely necessary to reiterate that corroboration need not be direct evidence that the accused committed the crime; it is sufficient even though it is merely circumstantial evidence of his connection with the crime."
17. In a later case namely Major E.G. Barsay v. State of Bombay it was held by this Court that though a trap witness is not an approver he is certainly an interested witness in that he is interested to see that the trap laid by him succeeds and he could at the most be equated with the partisan witnesses which needs corroboration. Relying on the ratio laid down in Basawan Singh case a Bench of three Judges in Bhanuprasad Hariprasad Dave v. State of Gujarat held thus:
"Now coming back to the contention that the appellants could not have been convicted solely on the basis of the evidence of Ramanlal and the police witnesses, we are of opinion that it is an untenable contention. The utmost that can be said against Ramanlal, the Dy SP, Erulker and Santramji is that they are partisan witnesses as they were interested in the success of the trap laid by them. It cannot be said -- and it was not said -- that they were accomplices. Therefore, the law does not require that their evidence should be corroborated before being accepted as sufficient to found a conviction. This position is placed beyond controversy by the decision of this Court in State of Bihar v. Basawan Singh wherein this Court laid down, overruling the decision in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh that where the witnesses are not accomplices but are merely partisan or CRA No.43/2018 Page 22 of 39 interested witnesses who are concerned in the success of the trap, their evidence must be tested in the same way as any other interested evidence is tested and in a proper case, the court may look for independent corroboration before convicting the accused person. We are unable to agree that any different rule was laid down in E.G. Barsay v. State of Bombay. It must be remembered that the decision in Basawan Singh case was given by a Bench of five Judges and that decision was binding on the Bench that decided Barsay case . Some of the observations in Barsay case no doubt support the contention of the appellants. But those observations must be confined to the peculiar facts of that case. It is now well settled by a series of decisions of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material particulars 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. In the instant case, the trial court and the High Court have fully accepted the evidence of Ramanlal, the Dy SP, Erulker and Santramji. That being so, it was open to them to convict the appellants solely on the basis of their evidence. That apart, their evidence is substantially corroborated by the evidence of Dahyabhai, Sanghvi and Sendhalal. In the case of partisan witnesses, the corroboration that may be looked for is corroboration in a general way and not material corroboration as in the case of the evidence of accomplices."
18. In Dalpat Singh v. State of Rajasthan , this Court after referring to Basawan Singh case observed thus:
CRA No.43/2018 Page 23 of 39
"We are unable to accept the contention of the learned counsel for the appellants that PWs 1, 2, 3, 4 and 17 and other prosecution witnesses to whose evidence we shall presently refer, should be considered as accomplices and therefore their evidence is required to be corroborated in material particulars before being accepted. On the proved facts, even those who gave illegal gratification to the appellants cannot be considered as accomplices as the same was extorted from them. Though PWs 1, 2, 4 and 17 can be considered as interested witnesses as regards their evidence relating to trap, as a matter of law, it is not correct to say that their evidence cannot be accepted without corroboration. See State of Bihar v. Basawan Singh ."
19. In Maha Singh v. State (Delhi Admn.) this Court held thus: (SCC p. 652, paras 33 and 34) "This also leads to the question whether all witnesses, who are called upon to assist detection of a bribery case by laying a trap, should be considered unreliable as accomplices or at any rate partisan witnesses. There is no rule of law that even if a witness is otherwise reliable and independent, his association in a pre- arranged raid about which he had become acquainted makes him an accomplice or a partisan witness. In absence of anything to warrant a contrary conclusion, conviction is not untenable merely because it is based on the testimony of such a witness.
We are also not prepared to dub every witness of a raiding party to be an accomplice per se or even as an interested witness in total absence of materials justifying such an inference. While PW 4 will be a highly partisan witness in this case in his own interest to oblige the police, nothing was shown against PW 3. PW 7, the Inspector, cannot be considered as an absolutely partisan CRA No.43/2018 Page 24 of 39 witness because he is a police officer who took immediate action on the complaint. Nothing unusual is suggested against him. We have no hesitation in accepting the testimony of PWs 3 and 7 on their own. They do corroborate the complainant."
20. In Hazari Lal v. State (Delhi Admn.) , Chinnappa Reddy, J. speaking for the Bench while repelling the contention that the evidence of trap witness namely the police officer should not be accepted unless corroborated observed thus: (SCC p. 395, para 9) "We, however, wish to say that the evidence of PW 8 is entirely trustworthy and there is no need to seek any corroboration. We are not prepared to accept the submission of Shri Frank Anthony that he is the very police officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. We are forced to say this because of late we have come across several judgments of Courts of Session and sometimes even of High Courts where reference is made to decisions of this Court on matters of appreciation of evidence and decisions of pure question of fact."
CRA No.43/2018 Page 25 of 39
21. From the above resume of various decisions, the following principles are deducible. Section 133 of the Evidence Act lays down that an accomplice is a competent witness against an accused person. The conviction based on such evidence is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, there is a rider in Illustration (b) to Section 114 of the Act which provides that the court may presume that the accomplice is unworthy of credit unless he is corroborated in material particulars. This presumption is in the nature of a precautionary provision incorporating the rule of prudence which is ingrained in the appreciation of accomplice's evidence. Therefore, the courts should be guarded before accepting the accomplice's evidence and look for corroborating evidence. The discretion of the court upon which the rule of corroboration rests must be exercised in a sound and reasonable manner. Normally the courts may not act on an uncorroborated testimony of an accomplice but whether in a particular case it has to be accepted without corroboration or not would depend on an overall consideration of the accomplice's evidence and the facts and circumstances. However, if on being so satisfied the court considers that the sole testimony of the accomplice is safe to be acted upon, the conviction can be based thereon. Even if corroboration as a matter of prudence is needed it is not for curing any defect in the testimony of the accomplice or to give validity to it but it is only in the nature of supporting evidence making the other evidence more probable to enable the court to satisfy itself to act upon it.
22. Now coming to the witnesses in trap cases, as held in Basawan Singh case by a Bench of five Judges, if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charge, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices in that sense but are only partisan or interested witnesses who are concerned in the success of CRA No.43/2018 Page 26 of 39 the trap, their evidence must be tested in the same way as other interested evidence is tested which may vary from case to case and the corroboration in the case of such interested witnesses can be in a general way and not as one required in material particulars as in the case of an approver. Therefore in seeking corroboration for the evidence of trap witnesses a distinction has to be drawn where participation of an individual in a crime is not voluntary but is the result of pressure. In such a case the element of mens rea to commit the crime is not apparent and (sic) cannot strictly be classified as an accomplice and at any rate he cannot be treated as being on the same footing. Where a bribe has already been demanded from a man and if without giving the bribe he goes to the police or magistrate and brings them to witness the payment it will be a legitimate trap and in such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the court depending upon the facts and circumstances of each case. However as a rule of prudence, the court has to scrutinise the evidence of such interested witnesses carefully.
23. 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 then see whether corroboration is necessary. Therefore as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of CRA No.43/2018 Page 27 of 39 each case. In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. However, it is cautioned that the evidence of a bribe-giver has to be scrutinised very carefully and it is for the court to consider and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon it or not in those given circumstances."
19) The aforesaid ratio has been followed by the Supreme Court in the case of Ramesh Kumar Gupta vs. State of MP, (1995) 5 SCC 320.
20) Recently, a Constitution Bench of the Supreme Court in the case of Neeraj Dutta vs. State (Govt. of N.C.T of Delhi), (2023) 4 SCC 731, while answering the question as to whether in the absence of direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/ guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution, surveyed the legal precedents on the issue laid down by the Supreme Court in previous past and summarized the legal position in the following manner:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the CRA No.43/2018 Page 28 of 39 prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-
giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by CRA No.43/2018 Page 29 of 39 the public servant when accepted by the bribe- giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.
21) From the foregoing analysis of the legal position on the subject, it emerges that there is no abstract rule that uncorroborated testimony of a bribe giver should not be accepted. It is also clear that a bribe giver can be termed as CRA No.43/2018 Page 30 of 39 a partisan witness who is interested in the success of trap and his statement has to be analysed and scrutinized in the same manner in which the statement of any other partisan witness is to be analysed and scrutinized before placing reliance upon it. It is further beyond any cavil that corroboration to the statement of a complainant can be by way of direct evidence or by way of circumstantial evidence and it is not necessary that corroboration to his statement has to be by direct evidence only. The quantum of evidence corroborating the testimony of a trap witness would depend upon its own facts and circumstances which would include nature of the crime and the character of the trap witness. The Court, on the basis of the facts and circumstances of each case, will have to weigh the evidence and see whether corroboration is necessary.
22) In the face of aforesaid legal position, let us now advert to the facts of the present case. Complainant, PW Mohammad Ramzan Bhat, has, in his examination-in-chief, stated that at the time of trap proceedings, he along with shadow witness, PW Mushtaq Ahmad Mir, entered the office room of the appellant/accused who was sitting on a chair. He further stated that the appellant/accused asked him as to whether he had brought the money, to which he replied CRA No.43/2018 Page 31 of 39 that he could arrange only Rs.3000/, and thereafter he handed over Rs.3000/ to the appellant/accused, who accepted the same and put it in the outer right pocket of his coat. He further stated that he promised to the appellant/accused that he would pay the balance amount of Rs.2000/ after getting the letter which was to be handed over to BSF authorities.
23) The only cross-examination of the witness by the defence on this aspect of the matter is with regard to placement of two pockets, one inside and one outside of the right side of the coat of the appellant/accused. There is no cross-examination by the defence as regards the conversation between the accused and the complainant and also as regards the demand and passing of money from the complainant to the accused/appellant. Not even a suggestion has been made to the complainant during cross- examination disputing this part of statement of the complainant. There is no suggestion by the defence that complainant was having any grudge or previous enmity with the appellant/accused that could have been a motive for him to falsely implicate the accused. In the face of this situation, there is no reason to disbelieve the statement of the complainant so far as it relates to demand made by the CRA No.43/2018 Page 32 of 39 appellant/accused, handing over money by the complainant to him and acceptance of the same by the accused during the trap proceedings. It is correct that shadow witness, PW Mushtaq Ahmad Mir, has not supported the complainant on the aforesaid aspect of the case as, according to him, he pulled out of the office room of the appellant/accused because there was some person sitting in the office who was known to him. He has not denied the demand and acceptance of money by the appellant/accused but he has only expressed his ignorance about it as he was not present on spot at that particular moment. In the face of the fact that the defence has been unable to impeach the credit of complainant PW-Mohammad Ramzan Bhat during his cross-examination, merely because he happens to be the bribe giver, his statement cannot be discarded. In fact, his statement as against the appellant/accused is worthy of credit and deserves to be relied upon.
24) Apart from the above, statement of the complainant, PW Mohammad Ramzan Bhat, so far as it relates to demand and acceptance of bribe money and consequent recovery of the same from the right-side pocket of coat of the accused finds corroboration from other circumstances proved on record. All the members of the trap team which includes CRA No.43/2018 Page 33 of 39 shadow witness PW-Mushtaq Ahmad Mir and PWs Mohammad Maqbool, Zameer Ahmad and Irshad Ahmad Wani, have categorically stated that during the post trap proceedings hand wash of appellant/accused was conducted and the solution of Sodium Carbonate turned pink. They have also stated that upon search of the appellant/accused, the tainted money was recovered from right side pocket of his coat and when the coat pocket was subjected to wash in Sodium Carbonate, the solution turned pink.
25) Learned Senior Counsel appearing for the appellant has contended that there are contradictions in the statements of the prosecution witnesses as regards the placement of pocket of the coat belonging to the appellant. It has been contended that it has come in evidence on record that there were two pockets on the right side of the coat of the appellant/accused, one towards inside and other towards outer side but in the seizure memo, EXTP-1/4, it is not mentioned as to from which particular pocket of the coat belonging to the appellant/accused the tainted money was recovered.
26) It is correct that it has come in the evidence on record that there were two pockets, one towards outer side and other towards inner side of the right side of the coat of the CRA No.43/2018 Page 34 of 39 appellant/accused and it is also a fact that in the memo recovery, EXTP-1/4, it is not mentioned as to whether the tainted money was recovered from inner side or outer side pocket of the coat but the omission on the part of the Investigating Officer to mention in the recovery memo of tainted money whether it was the pocket placed towards outer side of the coat or towards inner side of the coat is not of such a significance as would discredit the whole prosecution case. In fact, complainant in his statement has categorically stated that the tainted currency notes were recovered from right side outer pocket of the coat of the appellant/accused and nothing inconsistent to this position has been stated by any of the witnesses during their examination-in-chief or during their cross-examination.
27) It has also been contended by learned Senior counsel appearing for appellant/accused that the hand wash and pocket wash seized by the investigation agency were not properly sealed and the prosecution has not explained as to why solution contained in one of the bottles when produced in the court, was not found to be pinkish in colour. On this ground, it is being contended that the prosecution has failed to establish that the appellant/accused had fiddled with the tainted currency notes. The learned Senior Counsel in this CRA No.43/2018 Page 35 of 39 regard has placed reliance upon the judgment of Gujarat High Court in the case of Rameshchandra Tukaram Taleker vs. State of Gujarat, AIR 1980 Gujarat 1.
28) So far as sealing of the hand wash and pocket wash is concerned, it has come in the evidence on record that when the same were produced in the court, they were bearing the seal of adhesive tape. It has also come in evidence on record that in one of the solutions, the colour was not pinkish whereas in the other solution the colour was pinkish. In this regard it is to be noted that these solutions were sealed in April, 2007 and for the first time these were produced before the Court in March, 2009, which is about after two years. It is quite possible that with the passage of time the pinkish solution might have lost some of its colours and it would have turned colourless. In one case because of use of larger quantity of the phenolphthalein powder, the solution probably had remained pinkish for a longer time.
29) In any case, there is direct evidence on record in the shape of statements of the members of the trap team and the statement of the complainant to the effect that when the appellant/accused washed his hands in Sodium Carbonate solution, it turned pink and when pocket of his coat from which the tainted money was recovered was washed in the CRA No.43/2018 Page 36 of 39 said solution, it also turned pink. Thus, it is clearly established that the appellant/accused has fiddled with the currency notes with his hands and it is also established that he put these currency notes in his pocket. This circumstance corroborates the statement of the complainant that the appellant/accused had demanded and accepted the tainted money which was recovered from his possession. The positive Sodium Carbonate test vis-à-vis hands of the appellant/accused and right-side pocket of his coat goes on to show that he had voluntarily accepted the bribe. Thus, there is evidence of demand of illegal gratification and voluntary acceptance thereof.
30) Lastly, it has been argued by learned Senior Counsel appearing for the appellant that there was evidence on record to show that the appellant/accused was not present in his office on the date of the trap as he was undergoing training in IMPA and this evidence has not been properly appreciated by the learned trial court.
31) In the above context, it is to be noted that PW- Mohammad Maqbool Wani, the then Additional Deputy Commissioner, Budgam, in his statement has categorically deposed that in spite of appellant/accused having been deputed to training, he was orally directed by the Deputy CRA No.43/2018 Page 37 of 39 Commissioner to attend the office during second half because there was shortage of staff in the office. The communication addressed by the said officer to the Investigating Agency is on record, the contents whereof have been admitted to be correct by PW Mohammad Maqbool Wani. The trap has taken place during second half of the day and, therefore, the evidence produced by the appellant/accused that he was deputed for training to IMPA does not conclusively prove the plea of alibi set up by him. The learned trial court, while dealing with this aspect of the matter, has rightly rejected this contention of the defence. In fact, the plea of alibi has been setup by the appellant/accused for the first time while making his statement under Section 342 of J&K Cr. P. C. No suggestion to this effect has been put by the defence at any stage while cross-examining the prosecution witnesses. So, the plea of alibi setup by the appellant/accused is nothing but an afterthought to wriggle out of the charge.
32) For the foregoing reasons, I do not find any ground to interfere in the well-reasoned and lucid judgment passed by the learned trial court. Accordingly, the impugned judgment of conviction and sentence passed by the trial court is upheld and the appeal shall stand dismissed. The bail and CRA No.43/2018 Page 38 of 39 surety bonds of the appellant/accused are cancelled and he is directed to surrender before the learned trial court within a period of three weeks from the date of this judgment. Upon surrender by the appellant, the learned trial court shall send him to jail for serving the balance sentence. In case the appellant/accused does not surrender before the trial court within the aforesaid period, coercive measures shall be taken for securing his presence before the said court.
33) Trial court record along with a copy of this judgment be sent back.
(Sanjay Dhar) Judge Srinagar, 18.07.2025 "Bhat Altaf-Secy"
Whether the judgment is reportable: YES CRA No.43/2018 Page 39 of 39 Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 18.07.2025 22:30