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PETITIONER:

M.O. SHAMSUDHIN

Vs.

RESPONDENT:

STATE OF KERALA

DATE OF JUDGMENT21/03/1995

BENCH:

REDDY, K. JAYACHANDRA (J)

BENCH:

REDDY, K. JAYACHANDRA (J)

PUNCHHI, M.M.

CITATION:

1995 SCC (3) 351 JT 1995 (3) 367

1995 SCALE (2)298

ACT:

HEADNOTE:

JUDGMENT:

K. JAYACHANDRA REDDY, J.:

1. These appeals arise out of a common judgment of the

High Court of Kerala in Criminal Appeal Nos. 195/90 and

245/90 filed by the appellants herein C.K.Karunakaran and

M.O. Shamsudhin respectively.The two appellant; figured as

accused nos. 1 and 2 in C.C. No. 7/89 on the file of the

Enquiry Commissioner and Special Judge, Thrissour and they

have been found guilty under Section 5(2) read with Section

5(1)(d) of the Prevention of Corruption Act and under

Sections 161 read with 120-B I.P.C. A-1 C.K. Karunakaran was

sentenced to suffer rigorous imprisonment for two years and

to pay a fine Rs. 1,000/- and in default to undergo simple

imprisonment for a further period of two months for the

offence under the Prevention of Corruption Act and to

rigorous imprisonment for one year for the offence under

Sections 161 read with 120-B 1.P.C. A-2 M.O, Shamsudhin was

sentenced to rigorous imprisonment for one years and to pay

a fine of Rs. 500/and in default to undergo simple impris-

ionment for a further period of one month for the offence

under the prevention of Corruption Act and to rigorous

imprisonment for one years for the offence under Sections

161 read with 12-B I.P.C. The substantive sentences of

imprisonment were directed to run concurrently. The

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appeals filed by them were dismissed by the High Court.

Since it was a common judgment of the High Court in two ap-

peals, A-1 has chosen to file two appeals i.e. Criminal

Appeals Nos. 451-52/91 and A-2 has chosen to file only one

appeal i.e. Criminal Appeal No.553/91. Since, common

questions arise in these appeals, they can be disposed of

together by a common judgment.

2.At the relevant time A-1 was the Tehsildar and A-2 was

village Assistant. One Kunjan, deceased father of P.W.1,

Rajan applied for patta with regard to 55 cents of Sarkar

Porambokhu land in Kalur Village. Kunjan had remitted the

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necessary amount on 25.1.1974 pursuant to a notice. The

balance amount of Rs. 42/was also remitted some time in

1975. After satisfactory compliance of the required

formalities, patta was directed to be issued in his favour

by the Board of Revenue. Before the patta could be issued

Kunjan died. The matter was not pursued till 1987. One

8.6. 1987 P.W. 1 sent P.W. 2, his cousin, to enquire about

the issuance of patta. P.W. 2 met A-2 who told him that

issuance of patta would entail some expenses and P.W. 2

conveyed the same to P.W. 1 who together with P.W. 2 met the

accused at their office when a demand for bribe of Rs. 500/-

was reportedly made. P. W. 1 thought it was improper to

give the bribe. He therefore filed a complaint Ex. p.4

before P.W. 11, Dy.S.P. Vigilance in the presence of P.W. 3,

Auditor, District Co-operative Bank and P.W.4, Inspector of

Factories and Boilers. A case was registered, mahazarss

were prepared and the currency notes were subjected to

Phenolphatelin test and the tainted money was handed over to

P. W. 1 to be given in turn to the accused on demand.P.Ws. 7

and 8, Vigilance Constables followed P.Ws. 1 and 2 to the

office of A- 1. P.W. 11 and others were also on the move.

According to P.W. 1, he entered the office of A-1 and told

him that he had brought the amount asked for. A-1 asked him

to give the amount to A-2 who was standing nearby. P.W. 1

gave the amount to A-2 who put Me same in his pant pocket.

P.W. 2 also was there at that time. P W. 1 went out and

gave signal. Then all of them including the mediators P.Ws.

3 and 4 went to the office of A- 1. P. W. 11 disclosed his

identify and P.W. I told him that A-2 had received the money

as per the instructions of A-1. On being questioned A-2

took out Rs. 500/- from his pant pocket and the numbers of

die currency notes tallied. Corner parts of the currency

notes and the pant worn by A-2 as well as his fingers were

dipped in lime water and the Phenolphatelin test proved

positive. The necessary panchnama incorporating all the

facts was drawn up. The investigation of the crime was

partly conducted by P.W. 11 followed by P.W. 12 who

succeeded P.W. 11 and after completion of the inves-

tigation, the charge-sheet was laid.

3.When Questioned under Section 313 Cr.P.C., A-1 admitted

that on 9.6.87 P.Ws. 1 and 2 met him in respect of issuance

of patta. He however, denied that he demanded Rs. 500/- by

way of bribe. He stated that when P.W. 1 met him A-2 was

not there. He further stated that A-2 met him just five

minutes before the trap party entered his room and he also

denied that A-2 collected the money as directed by him.

4.A-2 stated that neither he conspired nor colluded with A-1

to obtain illegal gratification from P.W.1 and that he was

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not present in the office of A-1 on 9.6.1987. A-2, however,

admitted that he received a sum of Rs. 500/- from P.W. 1 in

the office room of A-1 on 10.6.87 as per the instructions of

A-1 but added that the amount was accepted without knowing

that it was bribe money. He further explained that on.9.5.87

he obtained a loan of Rs 1980/- from his provident fund

account which was sanctioned by A-1 and from that amount Rs.

500/- was taken by A- 1 as a loan stating that the same was

required to meet his urgent necessities and he promised to

return the same within two days and the balance of Rs.1480/-

alone was paid to him on 9.6.87. On 10.6.87 at about 4 P.M.

while he was in the office of A-1 seeking permission to

leave the office early, P.W.1 alongwith another person came

to the office of A- 1 and P.W. 1 offered some amount to A- 1

who instructed A-2 to receive that amount from P.W. 1

telling him that the same was towards the amount of Rs.

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500/- which he had taken as loan on the previous day.

Therefore according to A-2 he was compelled to accept

Rs.500/from P. W. 1 as per the instructions of A- 1 bonafide

believing that it was repayment and without knowing that it

was bribe money and therefore he is innocent. In support of

his plea he examined D.W.1, an L.D.C. working in his office

just to show that on the previous day a loan From provident

fund was sanctioned to A-2.

5. Most of the basic facts are not in dispute. However,

when examined in the court the evidence of P. Ws. 1 and 2

did not unfold a consistent case in ail respects. P.Ws. 1

gave evidence in such a way making an effort to exculpate A-

2 while P.W.2 gave evidence against A-2 in such a way

exculpating A-1. The was however treated hostile. The

trial court as well as the High Court after carefully

scrutinising the evidence of P.W. 1 alongwith the evidence

of P.Ws. 3 and 4, the independent witnesses held that the

guilt of both the accused has been established beyond all

reasonable doubt

6.Shri G. Ramaswamy, learned senior counsel appearing for A-

1 submitted that P.W.1, bribe-giver, is in the nature of an

accomplice and that since P.W.2 has been treated hostile,

there is no corroboration with regard to the alleged demand

of bribe by A- 1 and since bribe money was recovered only

from A-2, A-1's plea that he is innocent should be accepted

and that A2's statement trying to throw the blame on A- 1

can not be used against A- 1 even assuming it to be a

confession and that such a confession by a co-accused who

has tried to exculpate himself and inculpate A-1 is of no

evidentiary value at all. Shri U.R. Lalit, learned senior

counsel appearing for A-2 submitted that explanation given

by A-2 has to be accepted and that A-2 received the amount

of Rs. 500/- from P. W. 1 as per the instructions of A- 1

bonafide believing it to be towards the loan that A-1 has

taken on the previous day from the amount of provident fund

of Rs. 1980/sanctioned and that plea of A-2 is also

supported by the evidence of D.W. 1.

7.Acceptance of Rs. 500/- from P. W. 1 is not disputed by A-

2 and that the recovery of the same from A-2 is also not in

dispute. A-2, however, pleaded that he -was not a party to

the alleged criminal conspiracy with A-1 in demanding the

bribe. The evidence of D.W. 1 only shows that a loan from

out of provident fund was sanctioned on the previous day.

That by itself does not in any manner demolish the evidence

of P.W. 1.

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8.Now the question is whether the inconsistencies found in

the evidence of P.Ws. 1 and 2 do in any manner affect the

prosecution case as such? P.W.1 in his chief examination

deposed that P.W.2 who is his close relation, went to the

office of A1 and found out that the patta was ready and the

same would be given on spending some money. On 8.6.87 P.W.2

told him that patta would be given on giving bribe to A-1.

On 9.6.87 both of them went to the office of A-1 and

discussed with him but A-1 demanded Rs.500/- and at that

time A-2 was also present in the office Since P.W. 1 did not

have the money with him on 9.6.87 he did not give the same.

Then A-1 directed him to give the money the next day at the

waiting shed near Swapna Theatre, Thrissoor in the morning

of 10.6.87. P.W. 1 sent P.W.2 to the waiting shed who told

A-1 that he (P.W.1) would bring the money after selling pep-

per in the market. P.W. 1 further deposed that after

realising the money he went to meet P.W.2 who told him that

A-1 has asked P.W. 1 to go and meet him with the money at 4

P.M. At that stage P. W. 1 decided not to give bribe and

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decided to inform the vigilance department. Accordingly in

the afternoon he and P.W.2 went to Dy.S.P. and gave the

statement Ex.P.4. Then he gave the details of the trap pro-

ceedings. P.W.1 further deposed that as directed by Dy.S.P.

he went to the office of A-1 with the money and that at that

time A-1 and A-2 were present in the office. P. W. 1 told

A- 1 that he has brought the amount but A- 1 asked him to

give the amount to A-2 who was standing nearby and

accordingly he gave the money to A-2 and P.W.2 was with him

at that time. Then he gave the necessary signal and

thereafter the cap party came in and recovered the money

from A-2. In the cross-examination this witness was

confronted with his previous statement. It appears that he

stated to the police that A-1 in the first instance demanded

Rs. 1,000/-. He was also confronted with the contents in

his complaint Ex.P.4. We have examined the contents of

Ex.P.4. There no doubt P.W. 1 stated that A-2 came to them

and stated that A- 1 was asking for bribe of Rs. 1000/ - for

issuing the patta but it is specifically mentioned that a

little later he and P.W.2 were called to the room of A- 1

and they went alongwith A-2. There A-2 told that atleast

Rs. 500/- should be paid. In the further cross-examination

P.W.1 gave some answers stating that A-2 was not present in

the room when A- 1 demanded the bribe of Rs.500/- and he

also denied having given statement earlier that A-2 came out

and called them into the office of A- 1 but to another

question P. W. 1, however, stated that A-2 was present when

he went to give money to A-1 on 10.6.87. Now we, shall

examine the evidence of P.W.2 who is no other than the

nephew of P.W. 1. In the chief-examination he deposed that

on 19.6.87 at about 11.30 A.M. he and P.W. 1 went to the

office of A- 1 who after seeing the file told that since it

is a forest land it is not possible to get patta and when

they went out of the office they saw A-2 who told them that

if Rs. 1000/- are given to him he will get it done. But

they told him that they are poor people. A-2, however, told

that atleast Rs.500/- should be given to Tehsildar. Then he

gave further details as to how P. W. 1 gave the report to

the Vigilance Department and how the trap party proceeded

etc. the proceeded to state that when he and P. W. 1

entered the verandah of the office, A-2 came up and asked

whether the amount has been brought to which they told that

they will pay directly to A-- 1 but A-2 told them that

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the money may be given to him and need not be paid directly

to A-1. Accordingly P.W. 1 gave that tainted notes to A-2.

Thereupon P.W. 1 gave the signal. He gave further details

about the recovery of the money from A-2 and drawing of

Mahazars etc. Towards tie end of the chief examination a

specific question was put to him by the prosecutor asking

whether it was not A-2 who demanded the money to which P.W.2

stated that it is only A-2 who demanded the money saying

that it has to be given to A-1. Because of this answer, the

witness was treated hostile and in the cross-examination he

denied having mentioned certain facts in his earlier

statement.

9. Learned counsel submitted that P.Ws. 1 and 2, the

material witnesses are inconsistent in their versions

regarding the demand of bribe and therefore it cannot be

held that the prosecution has established that there was

such a demand by A-1. Therefore he cannot be held guilty

and that consequently A-2 who has received Rs. 500/- from

P.W.1 cannot also be held to have conspired with A-1 in

obtaining illegal gratification.

10. No doubt P. W. 2 has been treated hostile but we see no

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reason to reject the evidence of P. W. 1 who is the main

witness regarding the demand of bribe and the acceptance of

the same by A-2 on behalf of A-1 as directed by A-1.Learned

counsel, however, submitted that there is no corroboration

to the evidence of P.W.1 who is in the nature of an

accomplice regarding the demand.

11. Since this is an argument which is frequently put

forward in all cases of briefly, 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 me 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 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

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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 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 test 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 gradation. 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 die trap cannot succeed. When

there is such a demand by the public servant from person who

is unwilling and if to do public good approaches the

authorities and lodges 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

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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.

13.The word "corroboration" means not mere evidence tending

to confirm other evidence. In DDP v. Hester,(1972) 3 ALL ER

1056, 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 DDP v. Kilbourne, (1973) 1 ALL ER 440 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 lessor extent by the other statements or

circumstances with which it fits in."

In King v.Baskerville, (1916) 2 JOB. 658 which is a leading

case on this aspect, Lord

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Reading said:

"There is no doubt that the uncorroborated

evidence of an accomplice is admissible in law

But it has long been 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 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 jury nevertheless convict the

prisoner, this Court will not quash the

conviction merely upon the ground that die

accomplice's testimony was uncorroborated."

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In Rameshwar v. The State of Rajasthan 1952 SCR 377, Bose,

J., after referring to the rule laid down in Baskerville's

case (supra) 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 casesit 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 particula

r

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's case (1916) 2. K.B.

658 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 necessary 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

circumstances in the sense that teh

independent witness 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 these must be

"some additional evidence rendering it

probable hat 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

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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

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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 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."

(emphasis supplied)

14.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 and another v. The

Slate of Vindhya Pradesh, 1954 SCR 1098 there are obser-

vations 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 The State of Bihar v. Basawan

Singh, AIR 1958 SC 500, a Bench of five-Judges considered

this "corroboration requirement" and after referring to the

observations made in Rao Shiv Bahadur Singh's Case (supra)

explained them in the following manner:

"If the witnesses are not accomplices, what

then is their position? In Shiv Bahadur

Singh's 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 at 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 rejection even with regard to the

evidence of witnesses who may be called

partisan or interested witnesses. It is plain

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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

378

in cross-examination etc. There is no doubt

that the the testimony of partisan or

interested witnesses must be scrutinised with

care and there may be cases, as in Shiv

Bahadur Singh's case (A), where the Court will

as a matter of prudence look for

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. "

(emphasis supplied)

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 some way as other interested

evidence is tested by the application of

diverse considerations which must vary from

case to case, and in a proper case, the Court

may even look for independent corroboration

before convicting the accused person."

(emphasis supplied)

It was further concluded thus:

"As was observed by Lord Reading in 1916-2 K B

658 (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 and that it is reasonably safe to act

upon it." In 1952 SCR 377 at p.385 : (AIR 1952

SC 54 at p.57 (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."

In a later case namely Major E.G. Barsay v. State of Bombay,

AIR 1961 SC 1762 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 down by him is succeeded and he could at the most

be equated with the partisan witnesses which needs

corroboration. Relying on the ratio laid down in Basawan

Singh's case, a Bench of three-Judges in Bhanuprasad

Hanprasad Dave and another. v. The State of Gujarat, AIR

1968 SC 1323 held thus:

"Now coming back to the contention that the

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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. S.P., 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 by the decision of

this Court in The State of Bihar v. Basawan

Singh, 1959 SCR 195 = (AIR 1958 SC 500)

wherein this Court laid down, overruling the

decision in Rao Shiv Bahadur Singh v. State of

Vindhya Pradesh, 1954 SCR 1098 = (AIR 1954 SC

322) that where the witnesses are not

379

accomplices but are merely partisan or

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

(1962) 2 SCR 195 = (AIR 1961 SC 1762). It

must be remembered that the decision in

Basawan Singh's case, 1959 SCR 195 = AIR (1958

SC 500) was given by a Bench of Five Judges

and that decision was binding on the Bench

that decided Barsay's case, (1962) 2 SCR 195 =

(AIR SC 1762). Some of the observations in

Barsay's case, (1962) 2 SCR 195 = (AIR 1961 SC

1762) 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 cor-

roborated 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.

S.P. 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 evidence of Dahyabhai, Sanghvi

and Sendhalal. In the case of partisan wit-

nesses, 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."

(emphasis supplied).

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In Dalpat Singh and another v. State of Rajasthan, AIR 1969

SC 17 this Court after referring to Basawan Singh's case

(supra) observed thus:

"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

P.Ws. 1,2,4 and 17 can be considered as

interested 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 that the Bihar v.

Basawan Singh, 1959 SCR 195 = (AIR 1958 SC

500)."

(emphasis supplied)

In Maha Singh v. State (Delhi Administration) AIR 1976 SC

449 this Court held thus:

"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 ev-

380

ery 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

witness because he is a Police Officer who

took immediate action on the complaint. Noth-

ing 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 complaint."

In Hazari Lal v. The State (Delhi Admn) AIR 1980 SC 873,

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:

"We, however, wish to say that the evidence of

P.W.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

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wish to say that there is no 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 by any precedential

guidance. We are forced to say this because

of late we have come across several judgments

of Courts of Session of 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."

15.From 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 accom-

381

plice 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.

16.Now coming to the witnesses in trap cases, as held in

Basawan Singh's case (supra) 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 the trap, their evidence must be tested in

+,he 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

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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

cannot strictly be classified as an accomplice and at any

rate be treated as being on the same footing. Where 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.

17.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 de-

pends upon the facts and circumstances of 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 or not in those given

circumstances.

18.Learned counsel appearing for A-1, however, placed

reliance on the judgment of this Court in Panalal Damodar

Rathi v. State of Maharashtra, (1979) 4 SCC 526 wherein it

was observed that the evidence

382

of the complainant in such cases should be corroborated in

material particulars and while acquitting the appellant it

was held that on facts there was no corroboration to the

testimony of the complainant regarding the demand of money

by the appellant. This Court after extracting the evidence

of a panch witness who was also present at the time of

giving the bribe who however did not say anything regarding

the demand by the accused, held that the version of the

complainant regarding the demand was not corroborated and

his evidence can not be relied upon. The facts in Panalal

Damodar Rathi's case (supra) are distinguishable namely that

the panch witness who was also present with the complainant

who is alleged to have given the money, did not say a word

about the alleged demand and in that view of the matter it

was held that there was no corroboration. But it must be

borne in mind that corroboration can be by way of circum-

stantial evidence also. In the instant case P.W. 1 has no

axe to grind against A- 1. It is not in dispute that he had

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to get a patta issued by A-1 and he categorically stated

that A-1 made the demand. A-2 was his Assistant and the

tainted money was recovered from A-2 while he was just going

out of the office of A-1. Unless A-1 has demanded the money

and has also directed him to hand over the same to A-2,

there was no reason at all as to why P.W.1 should hand over

the money to A-2. P.W. 1 has consistently stated that A-1

demanded the bribe and that A-2 received the amount as

stated by him. Therefore it cannot be said that there is no

corroboration regarding the demand. This is a case where

each of the accused tried to throw the blame on the other

but taking the overall circumstances into consideration in

the light of the evidence of P.Ws. 3 and 4 alongwith the

evidence of P.Ws. 1 and 2 both the courts below have

consistently held that the evidence of these witnesses

establish the guilt of the accused and we see no reason to

come to a different conclusion. In this view of the matter

it is not necessary to go into the question whether the

statement made by A-2 which is in the nature of a confession

by a co-accused be used against A- 1.

19. Coming to the sentence we find that there are good

grounds to reduce the same. The offence itself is said to

have been committed in the year 1987 and both the appellants

have lost their jobs and have undergone the agony of facing

the criminal proceedings all these years. We find that they

have been in jail for quite some time and we think it is not

a fit case where they should be sent back to jail.

Therefore while confirming their convictions we reduce the

sentence of imprisonment under, each count, which are

directed to run concurrently, to the period already

undergone. The sentences of fine with default clause are,

however, confirmed. Subject to this modification of the

sentence of imprisonment all these appeals arc dismissed.

383