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S.C.R.

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SUPREME COURT REPORTS

BADRI RAI & ANOTHER

v.

THE STATE OF BIHAR

(B. P. SINHA and JAFER IMAM JJ.)

1141

Evidence-Conspiracy to bribe a public servant-Statements of

co-conspirator-When admissible against

others-Indian

Penal Code

(Act 45 of I86o), ss. I20B, I65A-Indian Evidence Act (I of I872),

s. IO.

The appellants were prosecuted on charges under s. 120B

read with s. 165A of the Indian Penal Code, for having conspired

to commit

the offence of bribing a public servant in connection

with the discharge of his public duties. The case against them

was

that on August 24, 1953, when the Inspector of Police who

was in charge of

the investigation of a case in which the second

appellant was involved, was on his way to the police station, the

appellants accosted

him on the road and the second appellant

asked him to hush up the case for valuable consideration.

Some

days later, on August 31 the first appellant offered to the Inspec­

tor at the police station a packet containing Rs. 500 in currency

notes

and told him;that the second appellant had sent the money

through him in pursuance of the talk that they had with him on

August

24, as a consideration for hushing up the case. The

courts below accepted

the evidence adduced. on behalf of the

prosecution and convicted the

appell-.:tnts. On appeal by special

leave

it was contended that the court had no reasonable grounds

to believe that the appellants had entered into a conspiracy to

commit

the offence and that the statement of

Augu~t 31 was not

admissible against

the second appellant because (1) the charge

under s. r20B had been deliberately added in order that the act

or statement of the one would be admissible against the other,

and (2) the object of the conspiracy, namely the payment of the

hush money, had

lbeen accomplished before the statement in

question W'as madb :

Held, (1) that the incident of August 24 was evidence that

the intention to commit the offence had been entertained by

both the appellants on or before that date showing a clear indi­

cation of the existence of the conspiracy, and that the statement

made by the first appellant on August 31 was admissible not

only to prove

that the second appellant had constituted the first

appellant his agent in the perpetration of the crime but also to

prove the existence of the conspiracy ; the court was therefore

justified in drawing

up the charge under s. 120B along with that

under s. 165A of the Indian Penal

Code. • •

(2) that the payment of the bribe and the statement of

August 31 accompanying it, were part of the same transaction, '

having been made in the course of the conspiracy, and the

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1142 SUPREME COURT REPORTS [1959)

statement in question was therefore admissible under s. 10 of

the Indian Evidence Act.

State of Bihar

Mirza Akbar v. The King Emperor, (r940) L. R. 67 I. A. 336

and R. v. Blake, (r844) 6 Q. B. r26, relied on.

Sinha J.

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CRIMINAL APPELLATE JURISDICTION: Criminal

Appeal No.

79 of 1956.

Appeal

by special leave from the judgment and

order dated September 7, 1955, of the Patna High

Court in Criminal Appeal No. 370 of 1954, arising out

.of the judgment and order dated July 26, 1954, of

the Court of the Special Judge at Bhagalpur in Special

Case No. 14 of 1954.

B. R. L. Iyengar, for appellant No. I.

S. P. Sinha and P. G. Agarwala, for appellant

No. 2.

R. C. Prasad, for the respondent.

1958. August 18. The

Judgment of the

Court was

delivered by •

SINHA J.-This appeal by special leave is directed

against the concurrent judgments and orders of the

courts below, convicting the two appellants under

s. 120B read with s. 165A, Indian Penal Code, and

sentencing, them to rigorous imprisonment for 18

months, and to pay a fine of Rs. 200 each, and in

default of payment of fine, to undergo further rigorous

imprisonment for 6 months. A

separate conviction·

under

s. l 65A has been recorded in respect of the first

appellant, Badri.

Under this head, he has peen sen­

tenced to rigorous imprisonment for 18 months, the

sentence to run concurrently with the sentence under

the common charge.

The facts

as found by the courts below, which could

not be successfully challenged before us, are as follows :

The second appellant,

Ramji

Sonar, is a goldsmith

by profession and runs a shop on the main road in the

village N aogachia. In that village there is a police

station

and the shop in question is situated in between fue police station building and the residential quarters

' of the Inspector of police, who was the First Infor­

mant in the case, resulting in the conviction and

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S.C.R. SUPREME COURT REPORTS 1143

sentences of the appellants as s~ated above. The first

appellant, Badri, runs a school for small boys in

the Badri Rai

same village about 50 yards away from the shop a.fore- v.

said of the second appellant.

On August 22, 1953, the state of Bihar

First . Informant, who, holding the position of an

Inspector of police, was in charge of the police station,

made a seizure

of certain ornaments and molten silver

from a

vacant building in front of the house of the

second appellant, Ramji. Those

omaments were being

melted

by six strangers coming from distant places,

with implements for melting, said to

have been

supplied

by Ramji. The seizure was made on the

suspicion that the ornaments and the molten silver

were stolen property, which were to be sold to

Ramji

in a shape which could not be identified with any

stolen property. After making the seizure-list of the

properties, thus seized, the police officer arrested

Ramji,

as also the other

six strangers. Ramji was

released on bail

that very day.

Police investigations

ints;i the case, thus started, followed. During that

period, on August 24, 1953, at about 7-30 p.m., the

Inspector was on his way from his residential quarters

to

the police station, when both

the appellants accosted

him on

the road, and Ramji asked him to hush up the

case for a valuable consideration. The Inspector told

them that he could not talk to them on the road, and

that they should come to the police station. There-

after, the Inspector reported the matter to his superior

officer,

the

D.S.P. (P.W. 8), and to the sub-inspector,

P.W. 9, jl.ttached to the same police station. On

August 31, the same year, the first appellant, Badri,

came to

the police station, saw the Inspector in the

central room of the thana, and offered to him a packet

wrapped in a piece of

old newspaper, containing

Rs. 500 in currency notes. He told the Inspector,

(P. W. 1), that the second appellant, Ramji, had sent

the money through him in pursuance of the talk that

they had with him in the evening of August 24, as a

consideration for hushing up

the case that

was pending

against Ramji. At the time the offer was made, a

1

number of police officers besides a local merchant, '

(P.W. 7), were present there. The Inspec"tor at once

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1144 SUPREME COURT REPORTS [1959]

drew up the first information report of the offer of the

bribe on his own statement and prepared a seizure-list

BadYi Rai

v. of the money, thus offered, and at once arrested Badri

stat• of Bihar and put him in the thana lock-up. After the usual

Sinha ].

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investigation the appellants were placed on their trial,

with

the result indicated above.

Both

the courts below have found that the prosecu­

tion case, a summary

of which has been given above,

has been proved by good and reliable evidence, and

that the defence case that the prosecution was started

by the inspector out of spite and in order to deferid

himself

against the consequences of wrongfully arrest­

ing Ramji, was unfounded. We

are not impressed

with

the halting criticism of the evidence adduced in

this case on behalf of the prosecution and accepted by

the courts below.

Ordinarily, this Court does not

interfere with concurrent findings of fact.

The only serious question raised in this

appeal is

the point raised on behalf of the second appellant,

Ramji,

as to whether the statement made by the

j;irst

appellant, Badri, on August 31, 1953, that he had been

sent

by the second appellant with the money to be

offered

by way of bribe to the police officer, was

admissible against him. The learned counsel for

the

appellant was not able clearly to formulate his grounds

of objection to the admissibility of that piece of

evidence, which is the basis of the charge against both

the accused persons.

Section 10 of the Indian Evi­

dence Act, is a complete answer to this contention.

The section is in these terms

:-

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"10. Where there is reasonable ground to believe

that two or more persons have conspired toge­

ther to commit an offence or an . actionable wrong,

anything said, done or written by any one of such

persons in reference

to their common intention, after

the time when such intention was first entertained by

any one of thei:n, is a relevant fact as against each of

the persons believed to be so conspiring, as well for the

purpose of proving the existence of the conspiracy as

for the purpose of showing that any such

person· was

' a

party to it.

"

The incidenb of August 24, when both the appellant~

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S.C.R. SUPREME COURT REPORTS 1145

approached the inspector with the proposal that he

should hush up

the case against the second appellant,

Badri Rai

for which he would be amply rewarded, is clear v.

evidence of the two persons having conspired to com-stat• of Bihar

mit t4e offence of bribing a public servant in connec­

tion with

the discharge of his public duties. There

cannot, therefore, be

the least doubt that the court

had reasonable grounds to believe that the appellants

had entered into a conspiracy to commit the offence.

Therefore,

the charge under s. 120B had been properly

framed against

both of them. That being so, anything

said or done

by any one of the two appellants, with

reference to the common intention, namely,

t,he con-

spiracy to offer bribe, was equally admissible against

both

of them. The statement made by the first

appel-

lant on August 31, that he had been sent by the

second appellant to make the offer of the bribe in

order to hush up the case which wasJthen under

investigation, is admissible

not only against the

mij>ker

of the statement-the first appellant-but also against

the second appellant, whose agent the former was, in

pursuance

of the object of the conspiracy. That state-

ment is admissible not only

to •prove that the second

appellant

had constituted the first appellant his agent

in the perpetration of the crime, as also to. prove the

existence of the conspiracy itself. The -incident of

August 24, is evidence that the intention to commit

the crime had been entertained by both of: them .on or

before

that date. Anything said or done

or written by

any one of the two conspirators on and after that date

until the "object of the conspiracy had been accom-

plished, is evidence against both of them.

It was faintly suggested on behalf of the second

appellant,

that the charge under s.

120B of the Indian

Penal Code, had been deliberately added by the prose­

cution in order to make the first appellant's

statement

of August 31, admissible against the second appellant,

as otherwise

it could not have been used as evidence

against him. As already indicated, the

iRcident of

August 24, is a clear indication of the existence

of

the

conspiracy, and the court \vas perfectly justified in •

drawing up the charge under s. 120B''al-so, It is no

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1146 SUPREME COURT REPORTS [1959]

Badri Rai

v.

Stale of Bihar

answer in Jaw to say, that unless the charge under

that section had been framed, the act or statement of

one could not be admissible against the other. Sec­

tion 10 of the Indian Evidence Act, has been delibe­

rately enacted 'in order to make such acts and state-

Sinha ].

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ments of a co-conspirator admissible against the' whole

body

of conspirators, because of the nature of the

crime. A conspiracy is hatched m secrecy and

executed in darkness. Naturally, therefore, it is not

feasible for the prosecution to connect each isolated

act or statement of one accused with the acts or

state­

ments of the others, unless there is a common bond

linking all

of them together. Ordinarily, specially in

a criminal case, one person cannot be made responsible for the acts'or statements of another. It is only when

there

is evidence of a concerted action in furtherance

of a common intention to commit a crime, that the

law has introduced this rule of common responsibility,

on

the principle that every one concerned in a

con­

spiracy is acting as the agent of the rest of them. As

·soon as the court has reasonable grounds to believe

that there is identity of interest or community of pur­

pose between a number.of persons, any act done, or

any statement or declaration made, by any one of the

co-conspir31tors is, nalturally, held to be the act or

statement of the other conspirators, if the act or the

declaration has any relation to the object of the cons­

piracy. Otherwise, stray acts done in darkness in

prosecution of an object hatched in secrecy, may not

become intelligible without reference to the common

purpose

running through the chain of acts

'or illegal

omissions attributable to individual members of the

conspiracy.

It was also suggested that the statement made by the

first appellant on August 31, about the purpose of the

payment, having been made after the payment, was

not admissible in evidence because the object of the

conspiracy had been accomplished before the state­

ment in question was made. Reliance was placed in

this connection upon the decision of their Lordships of

• the Judicial Committee in Mirza Akbar v. The King ,

Emperor.('). ·But'that decision is itself an answer to the

(1) (1940) L.R. 67 I.A. 336. ,

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S.C.R. SUPREME COURT REPORTS 1147

contention raised. The paymertt was made,

and the

statement that it was being made with a view to

hush­

ing up the ca.se against the second appellant is a part

of the same transaction, that is to say, the statement

accompanied the act of payment of the bribe. Hence,

it cannot be said that the statement was made after

the object of the ~JOnspiracy had already been accom­

plished. The object of the conspiracy was the hushing

up of the criminal case against the second appellant ·

by bribing the public servant who was in charge of the

investigation of the case. The object of the conspiracy

was

yet far from being accomplished when the

state­

ment in question was made. The leading case on

the subject is that of R. v. Blake (1). That decision is

·an authority both for the positive and the negative

aspects

of the question. It lays down what is

admis­

sible and what is not admissible. It held that the

documents actually used in effectuating the objects of

the conspiracy, were admissible, and that .those docu­

me11ts which had been created by one of the conspira­

tors after the object of the conspiracy had been

achieved, were

not admissible.

Section 10 of the

Indian Evidence Act is on the ~ame lines. It is mani­

fest that the statement in question in the present case

was made by

the first appellant in the

colil.rse of the

conspiracy, and accompanied the act of the payment

of the money, and is G!early covered by the provisions

of s. 10, quoted above. It must, therefore, be held

that there is no substance in the only question of law

raised in this appeal. It is, accordingly, dismissed.

Appeal dismissed.

(r)

(1844) 6 Q.B. ~26; 115 E.R. 49 .

•

Badri Rai

v.

State

of

Bihar

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