1980 Supreme(MP) 354

HIGH COURT OF MADHYA PRADESH
Chandra Pal Singh, J.
Kailas Bais
v.
State of M.P.
Cr A. No. 57 of 1979, against the judgment of Shri P.S. Pandya, Special Judge, Indore passed in S.C. No. 20 of 1974
Decided on : 22-10-1980

Headnote:(1) Evidence Art, 1872 - Ss.133 and 114 Ill. (b)-witness not in better position than an accomplice-corroboration in material particulars necessary’s of prudence and practice.

       The position of a witness like Manohar (PW 7) is no better than that of an accomplice. The corroboration in material particulars of such a witness though not as a matter of strict law in view of section 133 of the Evidence Act but certainly as matter of prudence and practice considering section 114 illustration (b) of the Indian Evidence Act is necessary. AIR 1979 SC 1191 and AIR 1952 SC 54 followed. [Para 11]

       (2) Witness-credibility of-depends upon his knowledge of facts, intelligence, disinterestedness, integrity, and veracity antecedents and character is material.

       The credibility of a witness depends upon a number of factors like his knowledge of facts, his intelligence, his disinterestedness, his integrity and his veracity. The antecedents, association and character of a witness, therefore, become material and can be exposed in his cross-examination. Manohar (PW. 7) in his cross examination paragraph 24 has clearly admitted that he had been convicted under sections 467 and 468 Indian Penal Code and sentenced to rigorous imprisonment for three years for forging documents and depositing less amount in the treasury than he was liable to deposit. [Para 12]

       (3) Prevention of Corruption Act, 1947-Ss.4 (1), 5 (1) (d) r/w 5 (2) and Penal Code, 1860 – S. 161-presumption under S. 4 (1)-cannot be drawn in a case falling under S. 5 (1) (d) r/w 5 (2)-it is available in case of S. 161 of Code in proof of some ingredients.

       The law is settled that the presumption under section 4(1) of the Prevention of Corruption Act cannot be drawn in the case of offence punishable under section 5(1) (d) read with section 5(2) of that Act, though with regard to section 161 Indian Penal Code it could be drawn provided it was first proved that the accused was a public servant, that he had obtained gratification, and that gratification was other than his legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, while exercising his official functions, favour or disfavour to the gratification giver. AIR 1975 SC 1432 followed. [Para 15]

       (4) Penal Code, 1860-S.161 and Evidence Act, 1872-Ss.3 and 114-presumption raisable under S. 161 of Code-extent of-general burden of proof is still on prosecution because of presumption of innocence of accused.

       On reading section 114 Indian Evidence Act on the one hand and the presumption raisable under section 161 Indian Penal Code on the other band particularly in the context of section 3 Indian Evidence Act, the general burden of proof is still on the prosecution because of the presumption of inhocence of the accused, the evidence against whom has to be such as to exclude to a moral certainty every reasonable doubt of his guilt. It is only after discharging the initial burden of proving that the accused was a public servant and that he had obtained from any person any gratification, that a rebuttable presumption arises with regard to that gratification being other than legal remuneration as a motive or reward for doing or forbearing to do any official act or forbearing to show favour or disfavour to the person. AIR 1975 SC 1432 followed. [Para 16]

       (5) Prevention of Corruption Act, 1947-Ss.5 (1) (d) r/w 5 (2) and Penal Code, 1860-S. 161-offence under-bribe taken having earlier apportunity, will not facilitate his entrapment - defence not only plausible but highly probable-offence not made out.

       The conduct of the appellant, without remaining confined to the cabin, in taking Manohar near the counter where there were in close proximity other persons of whom Rana Sahib and particularly Nirbhaysingh (P.W. 14) as a Vigilince Officer were known to the appellant, is indicative of his innocence. No bribe taker in his senses would facilitate his entrapment by exposing himself to all and sundry including his acquaintances and of them too a Vigilance Officer, particularly when he had earlier opportunity of accepting the amount while travelling in a rickshaw with Manohar from Raj Mohalla to hotel.

       The explanation given by the accused is not only plausible but highly probable particularly when it remains corroborated by the witnesses for the defence. It is quite likely that the appellant being an enthusiastic young officer, and keen to set ma1ters right had launched proceeding, against Nisar and Yunus for whom Manohar (PW.7) used to work so that they could not keep on swindling Government to the tune of lacs of rupees. If is, therefore, not surprising that Yunus in order to tab revenge and get the appellant out of his way, through Manohar (PW. 7) contrived the appellant's false prosecution. [Paras 23 & 24]

       (6) Evidence Act, 1872-S. 154-proper stage for dealing with a witness under-is either at the time of examination in chief or re examination and not at the time when he is cross-examined.

       The proper stage for dealing with a witness under section 154 Indian Evidence Act for putting any questions to him which might be otherwise put in cross-examination by the adverse Party, is either while that witness being examined in-chief of re-examined. There is no scope for following such a procedure while the witness is in charge of the adversary in the cross-examination. [Para 26]