Des Raj Sharma vs The State

Harnam Singh, J.—In Criminal Case No. 8l/2 of 1949 Dewan S.L. Ahuja, Magistrate, Delhi, convicted Des Raj Sharma, Inspector of Police, Enforcement Branch, Delhi, u/s 161, Penal Code and Section 5(2) read with Section 5(1)(d), Prevention of Corruption Act, 1947, and sentenced him to one year''s rigorous imprisonment on each count, the sentences to run concurrently. In that case Dharam Vir was convicted u/s 161 read with Section 109, Penal Code, and sentenced to one year''s rigorous imprisonment.

In appeal the learned Sessions Judge, Delhi, has maintained the conviction of Des Raj u/s 161, Penal Code, and Section 5(2) read with Section 5(1)(d), Prevention of Corruption Act, 1947, but finding that there was not a syllable of evidence on the record to show that Dharam Vir abetted Des Raj in accepting the bribe has acquitted Dharam Vir. Considering, however, the circumstances of the case the Court of appeal has reduced the sentence imposed upon Des Raj to three months'' rigorous imprisonment on each count, the sentences to run concurrently.

Des Raj applies u/s 435, Criminal P.C., for the revision of the order passed in Cri. App. No. 1416 of 1949.

Briefly summarised, the prosecution case is that on or about 14-07-1948, Des Raj accused met Jumna Das P.W.2 in the District Courts, Delhi, and told him that Pandit Jagan Nath, Superintendent of Police, Delhi City, had delegated powers to him to detain Jumna Das u/s 3, Punjab Public Safety Act, for a period of three months. The case then states that Des Raj told Jumna Das to help him in getting Rs. 2000 from S.L. Patodia adding that if the sum of Rs. 2000 was not paid to him by S.L. Patodia he would proceed against Jumna Das. Jumna Das, thereupon, made enquiries from his sister''s son Madan Gopal, a clerk in the office of the Superintendent of Police, who told him that no warrants had been issued against S.L. Patodia or against Jumna Das.

On the 7th or 8th of August, 1948, Des Raj accused showed Jumna Das Exs. P.C. and P.C./1 telling him that they were warrants for the arrest of Jumna Das and S.L. Patodia. Jumna Das gave evidence at the trial that he read his name and that of S.L. Patodia on Exs. P.C. and P.C./1 and talked about the matter to S.L. Patodia on the 8th or 9th of August 1948. S.L. Patodia expressed his inability to pay money to the accused and left the matter entirely to Jumna Das to deal with the accused. As to what transpired between Jumna Das and Des Raj on 14-07-1948, and the 7th or 8th August 1948, prosecution relies upon the solitary statement of Jumna Das P.W.2. Exhibits P.C. and P.C./1, however, show that they were marked to Des Raj accused for the first time on 16-08-1948, and that being so, Des Raj accused could not have shown Exs. P.C. and P.C./1 to Jumna Das on 7th or 8th August 1948.

On 14-09-1948, Jumna Das P.W.2 made the report, Ex. P-D, to the Special Police Establishment, stating that he was to pay Rs. 1500 to Des Raj as bribe at his shop at 5 P.M. on that day. Kanwar Mohinder Singh Bedi, City Magistrate, Delhi, received instructions from the Deputy Commissioner, Delhi, that he should organise a raiding party in order to arrest Des Raj accused who had agreed to accept bribe from Jumna Das. The raiding party consisted inter alia of Kanwar Mohindar Singh Bedi P.W.8, Ratan Singh P.W.6, Lala Hari Ram, Sub-Inspector of Police, P.W.7 and Charan Das P.W.3. Reaching the shop of Jumna Das at about 5-30 P.M. Kanwar Mohinder Singh Bedi learnt from Jumna Das that Des Raj accused had called at that shop earlier than the appointing time and that Jumna Das had put him off by making an excuse that as his manager was not present at the shop he could not pay the money to him. Kanwar Mohinder Singh thereupon asked Jumna Das to send information to the accused that the manager had turned up at the shop and that he should come to the shop for the purpose of accepting money. Jumna Das, however, informed the Magistrate that the person whom he had sent to Des Raj accused had come back with the message that the money should be paid to him at his house. Kanwar Mohinder Singh then asked Jumna Das to send a message to the accused that he would not pay him money at his house, and that he should meet him at the Queen''s Garden where he would make the payment. Pursuant to the suggestion Jumna Bas sent Kidar Nath Joshi P.W. 4 to the accused telling him that he should inform the accused that Jumna Das would not pay the money at the house of the accused. This time Kidar Nath Joshi brought the accused to the Queen''s Garden where Sat Narain Joshi P.W.4, Jumna Das P.W.2 and Des Raj made a round of the Queen''s Garden in front of the Cloth Market.

In the Queen''s Garden Jumna Das offered Rs. 1100 to Des Raj accused saying that he would make up the balance of Rs. 400 on the following day. Des Raj accused again asked Jumna Das to pay the amount to him at his house. Jumna Das refused to do so and it is said that thereupon the accused told Jumna Das that he would send Dharam Vir to the Queen''s Garden to collect money from him. In about 10 or 15 minutes time Dharam Vir came to the Queen''s Garden and Jumna Das gave the currency notes of the value of Rs. 1100 to Dharam Vir which the latter put in his pocket. Jumna Das thereupon lifted his cap and on that signal the Magistrate who was sitting at the Beadon Club and the other members of the raiding party came to the spot. The prosecution case is that Charan Das P.W.3 and Ratan Singh, Foot Constable, P.W.6, followed Sat Narain, Jumna Das, K.N. Joshi and Des Raj accused when they went up and down in the Queen''s Garden and overheard the conversation between Jumna Das and Des Raj.

On the facts set out above Des Raj was prosecuted that he being a public servant, by corrupt and illegal means and by otherwise abusing his position as a public servant, obtained Rs. 1100 from Jumna Das through Dharam Vir on 14-09-1948 at Delhi.

The defence of the accused was denial simpliciter and in defence Des Raj gave evidence at the trial.

In support of the prosecution case Jumna Das P.W.2, Charan Das P.W.3, K.N. Joshi P.W.4, Ratan Singh P.W.6, Lala Hari Ram P.W.7, Kanwar Mohinder Singh P.W.8 and Mohan Lal P.W.9 gave evidence at the trial.

Lala Hari Ram, Inspector of Police, stated that Kanwar Mohinder Singh gave eleven currency notes of the denomination of Rs. 100 each to Jumna Das P.W.2. Lala Hari Ram then stated that he saw Des Raj accused, K.N. Joshi, Sat Narain and Jumna Das going up and down in the Queen''s Garden with Charan Das P.W.3 and Ratan Singh P.W. 6 following them at some distance. Des Raj went away and after 5 or 10 minutes Dharam Vir accused came there and was paid Rs. 1100 by Jumna Das P.W.2. The currency notes were recovered from Dharam Vir accused and then the raiding party went to the house of Des Raj and from there recovered Exs. P.C and P.C./1 and other articles mentioned in the recovery memo Ex. P.H.

Kanwar Mohinder Singh P.W.8 gave evidence that he organised the raiding party, that he recovered currency notes of Rs. 1100 from Dharam Vir accused, that he arrested Des Raj accused and that from the search of his house he recovered inter alia documents Exs. P.C. and P. C/1.

Mohan Lal P.W.9 stated that documents Exs. P.C. and P.C./1 were given to Des Raj accused for enquiring into the allegations against Jumna Das. He then identified the signatures of Des Raj accused on the application Ex. P.E. showing that Dharam Vir accused was drawing ration on the card issued on the application Ex. P.E.

From that I have said above it is plain that the conviction of Des Raj accused can only be sustained if the evidence given at the trial by Jumna Das P.W.2, Charan Das P.W.3, Ratan Singh P.W.6 and Kidar Nath Joshi P.W.8 is accepted.

In deciding the appeal, the learned Sessions Judge has discarded the evidence of K.N. Joshi P.W.4 and Ratan Singh P.W.6. The appellate Court has, however, maintained the conviction of Des Raj on the evidence given at the trial by Jumna Das P.W.2 and Charan Das P.W.3 corroborated inter alia by the recovery of Exs. P.C and P.C/1 from the house of Des Raj and the failure of Dharam Vir to give a satisfactory explanation at the trial.

Before dealing with the points that arise in the case I wish to mention that when the chalan was put in Court on 26-04-1949, the prosecution filed a list of 14 witnesses of them Shri Sat Narain, Head Clerk of Mahabir Cotton Textiles and Spinning Mills, Delhi, Seth S.L. Patodia, Shri Jawahar Lal of the District Congress Committee, Delhi, Shri Jagdish Chander, Fuel Contractor, Fountain Road, Delhi, Sham Behari Mehra, Manager, Jwala Bank, Limited, Delhi, Jetha Nand, Sub-Inspector, Special Police Establishment, Delhi and Clerk of the office of the Inspector-General of Police, Delhi, were not examined at the trial. The non-production of the witnesses mentioned above raises a presumption that the evidence, if given, by these witnesses would be unfavourable to the prosecution.

Kanwar Mohinder Singh then stated at the trial:

When I questioned Dharam Vir accused why he had obtained currency notes of the value of Rs. 1100 from Jumna Das P.W., he failed to make a reply. After about 16 or 20 minutes he said that he had received the money from Jumna Das in lieu of loan and for payment of his wages.

Dharam Vir was employed as a fitter in the Mahabir Cotton Textiles and Spinning Mills, Sabzi Mandi, Delhi, on 02-04-1948, and Ex. D.B. shows that on 12-06-1948, he was paid Rs. 100 for the month of May 1948.

Jumna Das stated that Dharam Vir was in the service of the Mahabir Cotton Textiles Mill in the months of May and June 1948. Now, Ex. D.B. shows a payment of Rs. 100 to Dharam Vir on 12-06-1948. The police seized pay sheets maintained at the Mill for the months of May, June and July 1948, but they were not tendered in evidence or proved at the trial. Dharam Vir son of Harsuk is shown to be an employee of the Mahabir Cotton Spinning and Weaving Company, Limited, in the months of May, June and July 1948. Pay-sheets for the months of April, August and September 1948, are not on the record. The pay-sheet for the month of June 1948, shows that Dharam Vir son of Har Sukh Rai, assistant fitter, worked in the carding department of the Mill, but no payment is shown to have been made to him in the pay-sheet, whereas the other employees of the Mill are shown to have been paid their dues and their thumb impressions or signatures appear in the pay-sheet. In the month of July 1948, the labour appears to have gone on strike with effect from 02-07-1948. Dharam Vir is shown in the pay-sheet for the month of July 1948, to have attended the Mill on 01-07-1948.

In maintaining the conviction of Des Raj, the appellate Court said:

It is not very difficult to believe that Des Raj may have been persuaded to leave his house at that particular time and to go through the Queen''s Garden and meet Jumna Das without any suspicion on Des Raj''s part that this was a trap. It is, however, very hard to believe that soon after the departure of Des Raj Anr. man, admittedly connected with him in a fairly intimate manner, could have arrived on the scene, or made to arrive on the scene, and accept the money for which he could for some time at least offer no explanation. The crucial circumstance, to my mind, is that even afterwards when the case had been put into Court Dharam Vir could offer no convincing explanation of the money taken by him.

In plain English the appellate Court has used the conduct of Dharam Vir and the failure on his part to offer an explanation of the money taken by him in maintaining the conviction of Des Raj. Now, u/s 8, Evidence Act, 1872, the conduct of any person an offence against whom is the subject of any proceeding, is relevant for or against him if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Clearly, the conduct of Dharam Vir was relevant against him but was not relevant against Des Raj.

Then the failure on the part of Dharam Vir to offer an explanation of the money taken by him from Jumna Das has been used against Des Raj. Dharam Vir put in a detailed written statement at the trial when he was examined order Section 342, Criminal P.C., on the conclusion 1951 Punjab/3 of the prosecution case wherein he gave further details under which the amount of Rs. 1100 was paid to him. On this point also the Court of appeal was in error for the answers given by the accused u/s 342, Criminal P.C., can be used only for or against him and not against the other accused. There is no indication in the language used in Section 342, Criminal P.C., that the answers given by one accused can be used against his co-accused. Indeed, Section 30, Evidence Act, provides an exception to the general rule that a confession is only evidence against the confessor and not against the co-accused in that trial. Considering, however, that Dharam Vir has been acquitted, it is not necessary to go into the truth or falsity of the explanation given by Dharam Vir of the money taken by him from Jumna Das for assuming that the explanation given by Dharam Vir to Kanwar Mohinder Singh Bedi or that given by him at the trial was not satisfactory. I do not think that the failure on the part of Dharam Vir to offer a satisfactory explanation of the money taken by him from Jumna Das was a circumstance which could be taken into consideration in determining the guilt of Des Raj. Indeed, the law on the point is that if Dharam Vir had appeared at the trial as a witness in his own cause the statement that he would have made as a witness could not be taken into consideration against Des Raj.

For the foregoing reasons, I am firmly of the view that the crucial circumstance which the Court of appeal has taken into consideration in maintaining the conviction of Des Raj could not have been taken into consideration.

I now pass on to examine the evidence given by Jumna Das P.W.2 and Charan Das P.W.3. In deciding the appeal the Court observed that considering the fact that Des Raj had been investigating a criminal charge against S.L. Patodia and some of his servants in connection with the black-marketing of cotton cloth and that at the time of this incident a criminal case was actually pending against S.L. Patodia, a desire on the part of S.L. Patodia or any of his servants to entrap Des Raj would not be unnatural. Indeed, the Court has found that it was not very difficult to believe that Des Raj may have been persuaded to leave his house at that particular time and to go through the Queen''s Garden and meet Jumna Das without any suspicion on Des Raj''s part that this was a trap. That being so I find that the minimum amount of corroboration required to make it safe to act on the testimony of Jumna Das is that his evidence must be corroborated by independent evidence in material particulars connecting the accused with the prime. Now, the Court of appeal has found corroboration of the evidence given by Jumna Das in the statement of Charan Das P.W.8 and the circumstances discussed hereinbefore. On a perusal of the evidence given by Charan Das, I, however, find that the evidence given by Charan Das contradicts the evidence of Jumna Das P.W.2 in material particulars. (His Lordship went through the evidence.)

Giving the matter my very best consideration, I feel that it would not be safe to act on the statement of Charan Das. The matter is not free from doubt and I am not prepared to take suspicion to be a substitute for proof.

For the foregoing reasons, I give the benefit of the doubt to Des Raj accused, set aside his conviction and sentence and acquit him. Des Raj is on bail and need not surrender to his bail-bond.