State vs Nagindar Singh

Passey, J.—This is an appeal by the State against the acquittal of Nagindar Singh respondent of the charge u/s 161, Penal Code. On 26-6-1950 Nagindar Singh, who is a Sub-Inspector in the Department of the Custodian Muslim Evacuee Property, along with another colleague whose name has not come to light, went to the house of Ram Chand complainant, a shepherd of Bhatinda and accused him of being dishonestly in possession of certain goats alleged to have been left by some Muslim evacuee. Ram Chand tried to repel that accusation by producing the receipt evidencing the purchase by him of 48 goats for Rs. 800/- from one Ishar Singh. Nagindar Singh, however, threatened him with prosecution for theft unless he paid him Rs. 100. The bargain was struck at Rs. 60/- which Ram Chand agreed to pay as illegal gratification to save himself from harassment. Nagindar Singh insisted that Rs. 60/- should be paid by the evening positively as the amount was to be paid to the Custodian at Bhatinda. Ram Chand approached his neighbor Dr. Ram Lal, who is a medical practitioner and Municipal Commissioner for a loan explaining the immediate and pressing reason for his incurring the liability. Dr. Ram Lal acceded to his request and gave him six G.C. notes of Rs. 10/- each, drew up a complaint which was thumb marked by Ram Chand and took him with it to S. Amar Singh, Assistant Commissioner, Bhatinda. The story of the demand of the bribe by Nagindar Singh was narrated to S. Amar Singh who initialled the G.C. notes and sent them along with the complainant, to the Kotwal Bhatinda, with the direction that necessary action be taken and the result reported to him.

Nagindar Singh in those days used to live in the upper storey of the building used as the office of the Assistant Custodian and on the back of that office is the clinic of Dr. Gurbachan Singh P.W.M. Jaswant Singh Kotwal, Dr. Ram Lal and Ram Chand proceeded in the direction where the accused lived and while Dr. Ram Lal and the Kotwal sat at the shop of Dr. Gurbachan Singn, Ram Chand went to the accused. He gave the money to Nagindar Singh and made a signal to those waiting at Dr. Gurbachan Singh''s shop. Dr. Ram Lal, Dr. Gurbachan Singh and the Kotwal rushed up to the residence of the accused and asked him to deliver up the G.C. notes that he had received from Ram Chand as illegal gratification. Nagindar Singh took out four G.C. notes from a niche and two from a pitcher and handed them over to M. Jaswant Singh. A recovery-memo (Ex. P.B.) was drawn up and attested by Dr. Gurbachan Singh and Dr. Ram Lal. The accused also produced the receipt (Ex. P.E.) which he had taken from Ram Chand. when it was shown to him in proof of the goats numbering 48 having been bought for Rs. 800/-. On 18-9-1950 M. Jaswant Singh filed a complaint u/s 161, Penal Code. Ram Chand, Dr. Ram Lal, Dr. Gurbachan Singh, M. Jaswant Singh and S. Amar Singh were examined as prosecution witnesses. The accused denied the charge but did not produce any evidence in defence. He was convicted and sentenced to 6 months'' rigorous imprisonment and Rs. 200/- fine by the trial Magistrate, but was on appeal acquitted by the Additional Sessions Judge, Bhatinda. The grounds of acquittal mainly are that Ram Chand and Dr. Gurbachan Singh having turned hostile, their evidence is not of much value, that the circumstances under which payment of Rs. 60/- was made by the complainant to the accused are not clear and that the evidence regarding recovery of the G.C. notes from the possession of the accused is not uniform. S. Amar Singh has been regarded to be formal witness only and his statement has been held not to connect the accused with the crime.

A hostile witness, no doubt, cleverly changes sides and makes a statement adverse to the party calling him but if in his statement proof is available of certain facts which the party calling him intends to establish, there is no thing to prevent such portions of his evidence as support the case of the side putting him in the witness box from being considered on their merits and being used as evidence against the party whom he has resolved dishonestly to favour. His evidence has, however, to be read with circumspection and if rules of caution warrant acceptance of his evidence in part as credible, there should be no hesitation in admitting that portion as good evidence. It is a mistaken notion of the law to maintain that the evidence of a hostile witness must be brushed aside completely. In - ''Shridhar Mahadeo v. Emperor'' AIR 1935 Bom 36 , it was held by a Division Bench that it is an ordinary incident of the Courts for a witness to resile from some portion of his statement and to be allowed to be cross-examined by the prosecution, and there is nothing illegal in the Courts partly believing this witness and partly not. In - Brijnandan Prasad Singh Vs. Emperor, it was on a review of the case law, held by Dhavle and Rowland JJ. that it is not correct to say that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part but must be excluded from consideration altogether. The correct rule is that either side may rely upon his evidence and that the whole of the evidence so far as it affects both parties favourably or unfavourably must be considered for what it is worth. The learned Additional Sessions Judge took an erroneous view in declaring as worthless the evidence of Ram Chand and Dr. Gurbachan Singh, because in certain aspects it was not helpful to the prosecution.

Where hostile evidence is the problem the appropriate course for a Court would be to bring its judicial discretion to bear on the whole statement and to decide which part of the statement impresses it as true and which not. Ram Chand in his examination-in-chief did not deflect and supported and repeated the accusations contained in his complaint (Ex. P.A.). He admitted to have borrowed Rs. 60/- from Dr. Ram Lal for bribing Nagindar Singh and to have actually passed on that amount to him. He also admitted that in his presence the accused had produced before the police six G.C. notes (Ex. P-1 to P-6) from his pocket. His examination-in-chief also makes it clear that the accused had in the first instance demanded Rs. 100/- from him but had eventually agreed to accept Rs. 60/- that he borrowed six G.C. notes of Rs. 10/- each from Dr. Ram Lal and that he gave those notes to the accused to grease his palm, so that the threatened proceedings against him might be hushed up. In cross-examination he, however, stated that he had not put his thumb impression on any complaint and that he. had not got any G.C. notes initialed by S. Amar Singh. He stated in cross-examination all the same that the G.C. notes were recovered by the police from the accused soon after they had been given to him by him (witness).

The payment of Rs. 60/- to the accused and the recovery of that amount from him by the police in his presence stand proved by his evidence. For one reason or the other he manifested an inclination to help the accused and made a false statement with regard to the presentation of the complaint and the initials of the Assistant Commissioner on the G.C. notes. The complaint Ex. P.A. has been proved by not only Dr. Ram Lal who had got it typed and submitted to S. Amar Singh by the complainant, but by S. Amar Singh also whose order it bears. The order of the Assistant Commissioner on the complaint also makes mention of his having put his initials on the corners of the back of the six G.C. notes. S. Amar Singh''s evidence is further to the effect that Ram Chand had come to him with the complaint Ex. P.A. and that he had read out its contents to him which were duly acknowledged. The G.C. notes recovered from the accused were the same and bore the initials of S. Amar Singh. We have little doubt, therefore, that Ram Chand had submitted the complaint Ex. P.A. to S. Amar Singh and that the latter had sent that complaint together with the initialled notes to the Kotwal with the direction that necessary action be taken and a report submitted. That portion of the cross-examination of Ram Chand in which he stated that he had not got the G.C. notes initialled must be discarded as untrue.

Next comes the evidence of recovery. As mentioned above, the recovery memo was attested by Dr. Ram Lal and Dr. Gurbachan Singh. The memo is in Gurmukhi script and Dr. Gurbachan Singh has admitted that he can read that script. He has, however, stated that he had attested the memo at the request of the police and that in fact no recovery had been effected in his presence. The contents of the memo show that the recovery was conducted before Doctors Ram Lal and Gurbachan Singh. Kotwal Jaswant Singh and Dr. Ram Lal have stated that Dr. Gurbachan Singh was present at the time of the recovery. Neither Dr. Ram Lal nor M. Jaswant Singh has any axe to, grind against the accused nor is there any, reason why they should falsely state that the G.C. notes were produced by the accused in the presence of Dr. Gurbachan Singh. Dr. Ram Lal is an entirely disinterested witness? Three witnesses, namely Ram Chand, M. Jaswant Singh and Dr. Ram Lal have proved that the G.C. notes were recovered from the pos session of the accused. Dr. Ram Lal has stated that the accused on getting into the Chaubara asked his wife to make over to him the G.C. notes that he had just then given to her and that she took out two G.C. notes from a pitcher and four from a niche and gave them over to the police. M. Jaswant Singh''s evidence shows that the accused had himself given the G.C. notes from the two places mentioned by Dr. Ram Lal. The discrepancy is of an immaterial nature. Even if the G.C. notes were produced by the wife of Nagindar Singh the inescapable inference would be that they had been given to her by the accused very shortly before the recovery.

Only a little time had elapsed between the delivery of those notes by Ram Chand to the accused and their recovery. Even the hostile witness Ram Chand who wanted to help the accused stated that the notes had been taken out of his pocket by Nagindar Singh, and given over to M. Jaswant Singh. Undoubtedly thug the accused cannot be absolved of his having been in actual possession of the G.C. notes which Ram Chand had earlier obtained from Dr. Ram Lal and which had been initialed by the Assistant Commissioner for laying the trap. On a careful scrutiny of the evi dence we are satisfied that the six G.C. notes were recovered from the possession of the accused very soon after he had taken them from the complainant. Nagindar Singh could offer no explanation of the evidence against him. The learned Additional Sessions Judge has not only viewed the case from a wrong legal angle but has not properly appraised the prosecution evidence as well. He has further not taken into consideration the fact that at the time of the recovery of the G.C. notes the receipt Ex. PE which the complainant had obtained from Ishar Singh who had sold the 48 goats in question to him, was also recovered from the possession of the accused. It having been proved by the prosecution that Rs. 60/- had been paid to him it was for the accused to show as to how and on what account they happened to come into his possession.

The appeal must, therefore, succeed. We consequently set aside the order of the Additional Sessions Judge, convict Nagindar Singh u/s 161, Penal Code and sentence him to six months'' rigorous imprisonment. He will also pay Rs. 200/- as fine failing which he will further undergo rigorous imprisonment for one and a half month.

Chopra, J.

I agree.