Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 20
PETITIONER:
SAT PAL
Vs.
RESPONDENT:
DELHI ADMINISTRATION
DATE OF JUDGMENT29/09/1975
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
BHAGWATI, P.N.
CITATION:
1976 AIR 294 1976 SCR (2) 11
1976 SCC (1) 727
CITATOR INFO :
F 1979 SC1848 (12)
RF 1986 SC 250 (39)
R 1986 SC1769 (5)
APL 1990 SC 209 (24)
ACT:
Evidence-Trap witnesses and witnesses with bad
antecedents-Necessity for corroboration by independent
evidence.
Evidence Act (1 of 1872) ss. 8 and 154-’Hostile’
witness-Weight of evidence of-Silence as conduct.
Code of Criminal Procedure (Act S of 1898) s. 162-
Statements recorded during investigation-Use of. C
HEADNOTE:
The appellant, an Assistant Sub Inspector, attached to
the railway station was convicted under s. 5(2) read with s.
5(1)(d) of the Prevention of Corruption Act, 1947, and s.
161, I.P.C. The evidence against him was that the arrested
P.W. 1, took-away Rs. 30/- from him and demanded an
additional Rs. 70/- for releasing him. These facts were
spoken to by P.W. 1 and P.W. 2 and P.W. 8 who were the women
companions of P.W. 1. The evidence regarding the payment of
Rs. 70/- and its recovery was spoken to by P.W. 7, a friend
of P.W. 1 who brought the money, and P.W. 9, the Inspector
attached of the AntiCorruption Police who set the trap for
catching the appellant. Two items of circumstantial evidence
on which the trial court relied were, (a) that P.W. 1 was
found detained by the appellant at the Police Station. and
(b) that the accused kept silent when P.W. 9 accused him of
having taken a bribe. P.Ws. 3 and 4 were the panch witnesses
who were present at the time of the recovery of the tainted
currency notes from the appellant. They turned ’hostile’ to
the prosecution but in cross-examination, supported the
prosecution regarding the silence of the appellant when
accused of having taken the bribe. P.W. 3 further supported
the prosecution to the extent that the solution turned pink
when the hands and the pocket of the pants of the appellant
were dipped in it.
The conviction of the appellant was confirmed by the
High Court.
Allowing the appeal to this Court,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 20
^
HELD: (1) I‘his Court ordinarily does not review the
evidence and disturb concurrent findings of fact unless the
findings are clearly unreasonable or vitiated by illegality
or material irregularity of procedure or are otherwise
contrary to the fundamental principles of natural justice
and fair-play. In the present case the trial court and the
High Court have not only used the statements of certain
witnesses in a manner which is improper or impermissible
under the law, but also erred in accepting the testimony of
interested witnesses without the caution and corroboration
requisite in the peculiar circumstances of the case. [20B-
D].
(2) There can be no general rule of universal
application for weighing evidence. There ii also no absolute
rule that the evidence of an interested , witness cannot be
accepted without corroboration. But where the witenesses
have poor moral fibre and have to their discredit many bad
antecedents, and have a motive to implicate the accused, as
P.W. 1, 2, 7 and 8 have against the appellant, it would be
hazardous to accept their testimony in the absence of
corroboration on crucial points from independent sources.
[22G-H].
R. P Arora v. State of Punjab, A.I.R. 1973 S.C. 498,
referred to.
(3) P.Ws. 1, 7 and 9 were concerned with the success of
the trap laid for the appellant and as such were intersted
witnesses. Qualitatively, the evidence of P.Ws. 1 and 7 was
far inferior to the testimony of an ordinary interested
witness. They were pimps haunting the railway station to
solicit customers for P.Ws. 2 and 8. The accused was a
police officer with an outstanding and unblemished
12
record of l9 years service and was an obstacle to these
witnesses in their. activities. It could not, therefore, be
said that they had no motive to falsely implicate him. [20D-
G; 2ZA-B].
(4) The sum of Rs. 30/- which was alleged to have been
taken away by the appellant from P.W. 1 was not recovered
from the appellant or from anywhere else in the police
station. Further, according to P.W. 7, when the balance of
Rs. 70/- had been paid, the appellant did not allow P.W. 1
to go away. Ordinarily such discrepancies and small
improbabilities are not of much consequence; but when the
witnesses are manifestly disreputable persons, their
testimony must pass the test of severe scrutiny and even
minor infirmities may assume importance. [22D-G].
(5) As regards P.W.9, though it has not been shown that
he had any hostile animus against the appellant, or that he
was friendly to P.Ws. 1 or 7, he was the Inspector of the
Anti-Corruption Staff of Police who planned the trap, and
was therefore, interested in its success. Although the power
conferred on him did not extend to the investigation of an
offence under s. 161, I.P.C.. he went ahead with the
execution of the trap and the investigation. Not being an
independent witness, this evidence could not furnish the
kind of corroboration requisite in the circumstances of the
case. [23E-H].
(6) As regard the circumstantial evidence. (a) the
conduct of the appellant in detaining P.W. 1 for
interrogation could be the innocent act of an honest and
duty-conscious Police officer in view of the immoral
activity of P.W. 1 and his companions P.Ws 2 and 8; and (b)
assuming that the silence cf the appellant was admissible as
conduct under s.8, Evidence Act, and not excluded as a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 20
statement under s. 162, Cr. P.C., its probative value in the
circumstances. Of the case would be almost nothing. the
appellant explained that he did not protest and resist out
of fear, that P.W.9 might make matters worse for him even
for getting bail. It would not be unusual, even for an
innocent officer, to be frightened out of his wits on being
suddenly accused of bribe-taking by a superior offal. [22B-
C; 23D-E]
(7) Even in a criminal prosecution, when a witness is
cross-examined and contradicted with the leave of the court
by the party calling him, his evidence cannot, as a matter
of law, be treated as wiped off the record altogether. It is
for the court to consider in each case, whether as a result
of such cross-examination and contradiction, the witness
stands thoroughly discredited, or can still be believed in
regard to a part of his testimony. If in a given case the
whole of the testimony of such a witness is impugned and in
the process, the witness stands squarely and totally
discredited, the Judge should as a matter of prudence,
discard his evidence in toto. [30D-F]
(a) Unlike the law in England, in India, the grant of
permission to cross examine his own witness by a party is
not conditional on the witness being declared ’adverse’ or
’hostile’. In fact, in the order granting such permission it
is preferable to avoid such expressions as "declared
’hostile," "declared unfavorable" etc. Whether it be tho
grant of permission under s. 142, Evidence Act, to put
leading questions or leave under s. 154 to ask questions
which might be put in Cross-examination by the adverse
party, the Indian Evidence Act leaves the matter entirely to
the discretion of the Court. The discretion is unqualified
and untrammeled and is apart from any question of hostility.
It is to be liberally exercised whenever the court from the
witness’s demeanour temper, attitude, bearing, or the tenor
and tendency of his answers, or from a perusal of his
previous inconsistent statement or otherwise, thinks that
the grant of such permission is expedient to extract the
truth and to do justice. The grant of such permission does
not amount to an adjudication by the court as to the
veracity of the witness. The fallacy underlying the view
that where a party calling the witness requests the court to
declare him a "hostile" witness and with the leave of the
court cross-examines the witness, the latter’s evidence
should be excluded altogether in criminal cases, stems from
the assumption that the only purpose of cross-examination of
a witness is to discredit him. There is another equally
important object of cross-examination, namely to elicit
admissions of facts which would help build the case of the
cross-examiner. When a party with the leave of
13
the court, confronts his witness with his previous
inconsistent statement he A also does so in the hope that
the witness might revert to what he had stated previously,
because, if the departure from the prior statement is not
deliberate but duo to faulty memory or a like cause, there
is every possibility of the witness veering round to his
former statement. The rule prohibiting a party from putting
questions in the manner of cross-examination or in a leading
form to his own witness is relaxed not because the witness
has already forfeited call right to credit but because from
his antipathetic attitude or otherwise, the court may feel
that for doing justice, his evidence will be more fully
given, the truth more effectively extricated and his credit
more adequately tested by questions put in a more pointed,
penetrating and searching way. [26 E-H; 27 F-28 B].
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 20
(b) Section 154 speaks of permitting a party to put to
his own witness questions which might be put in cross-
examination. It is not necessarily tantamount to
crossexamining the witness. Cross-examination, strictly
speaking, can only be by the adverse party. Therefore,
neither the party calling human, nor the adverse party is,
in law, precluded from relying on any part of the statement
of such a witness. [28 C-E]. C
(c) The contention of the appellant that this Court in
Jagir Singh v. State A.I.R. 1975 S.C. 1400, held that when a
prosecution witness, being hostile, was cross-examined by
the public prosecutor, his entire evidence is to be
discarded as a matter of law, is misconceived. In that case
the Court did not reject the evidence as a rule of law, but
only after scrutinising it carefully came to the conclusion
that the evidence should be rejected en bloc. 130 F-H;.
(d) Therefore, a part of the evidence of P.Ws 3 and 4
could be used or’ availed af by the prosecution in support
of its case. But, they contradicted substantially their
previous statements, and as, a result of the
crossexamination, their credit, if not wholly was
substantially, shaken. Therefore, as a matter of prudence,
on the facts of the present case, it would be hazardous to
allow the prosecution to use stray sentences from their
evidence as corroboration to support the evidence of the
trap witnesses. [31 A-B].
(8) The High Court was also not competent to use the
statements of these witnesses recorded by the police during
investigation for seeking assurance of tbe prosecution
story. Such use of the police statement is not permissible
under the proviso to s. 162, Cr. P. C. They can be used only
for the purpose of contradicting a prosecution witness in
the manner indicated in s. 145 Evidence Act, and for no
other purpose. [31 C-D].
(9) Further, there was the evidence of defence
witnesses which was not successfully impeached by the
prosecution in cross-examination. The High Court had not
discussed thier evidence at all. If that evidence were to be
believed the possibility of the tainted notes having been
implanted by P.W. 7 from where they were recovered, could
not be ruled out. [31 E-G]
Baikuntha Nath v. Prasannamoyi, AIR 1922, P.C 409;
Prophulloa Kumar Sarkar v. Emperor ILR 58 Cal. 1404; Shobraj
v. R. ILR 9 Patna 474; E. Jehangir Carna 1927 Bom. 501;
Ammathayar v. Official Assignee 56 Mad. 7. Mebti v. R. 19
Pat. 369 Shahdev v. Bipti AIR 1969 Pat. 415; IL.R [1954] 4
Raj. 822(DB). Shyam Kumar v. E. (1941) Oudh 130; AIR 1955
NUC (Punj) 5715. AIR 1964 M.P. 30. In re Kulu Singh; Rana v.
State AIR 1965 oriss 31; AIR 1960 Mys. 248; (1951) Ker. L.T.
471; AIR l953 J & K 41(DB); Narayon Nathu Naik v.
Maharashtra State. [1971] 1 SCR 133 referred to. G
Observations contra in Luchiram Motilal v. Radhe
Charan, (1921) 24 C.L.J. lO7. E. V. Satyendra Kumar Dutt,
AIR 1923 Cal, 463; Surendra v. Ranee Dassi 47 Cal. l043;
Khijiruddin v. E. AIR 1926 Cal. 139 and Panchanan v. R. 57
Cal. 1266, over-ruled.
JUDGMENT:
CRIMINAL APPELLATE JURIDICTION: Criminal Appeal No. 1
37 of 1971.
Appeal by Special Leave from the Judgment and order
dated the 9th‘ March 1971 of the Delhi High Court-at New
Delhi in Criminal Appeal No. 151 of 1970.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 20
14
Frank Anthony) o. P. Soni and E. C. Agarwala for the
Appellants.
V. C. Mahajan and R. N. Sachthey for Respondent.
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by special leave is directed
against a judgment of the High Court of Delhi upholding the
conviction and sentence of the appellant under s. S(2) read
with s. 5(1) (d) of the Prevention of Corruption Act and s.
161 Penal Code. The facts are these:
On 16-1-1970, Ramesh-@ Kaka (PW l).Mst. Maya (PW2) and
Jayna (PW 8) went to the Railway Station to receive one Mst.
Mum taz, who was expected from Bombay by 1.45 p.m. train.
Finding them loitering there, a constable of the Railway
police took them to the appellant at the Railway Police Post
where he was posted as an Assistant Sub-Inspector. The
appellant gave a beating to Ramesh and demanded an
explanation as to why they had come to the Rail way Station.
Ramesh said that they had come to receive one Mst. Mumtaz,
who was expected from Bombay by train at about 1.45 P.M. The
appellant questioned if Mumtaz was being brought to Delhi
for prostitution. Ramesh and his companions refuted the
insinuation and informed the appellant that Mumtaz was a
dancing girl and not a prostitute. The appellant then
demanded a bribe of Rs. 100 from Ramesh and party, warning
that in the event of non-payment, they would be Implicated
in some case. Ramesh paid Rs. 30 there and then to the
appeIlant. The latter insisted that they would not be
released unless they paid the balance of Rs. 70/- on the
suggestion of the women, the appellant detained Ramesh but
let of the women with the direction to send the balance of
Rs. 70/-. Mst. Maya and Mst. Jayna returned to their
residence on G.B. Road and informed Dal Chand (PW 7) all
about the incident. Mst. Maya then hand ed over Rs. 70/- to
Dal Chand for securing the release of Ramesh. Dal Chand
instead, went to the office of the Anti-Corruption Police
where Inspector Paras Nath recorded his statement, Ex PW
3/A. The Inspector organised a raiding party. He summoned
Surinder Nath (PW 3) and Sohan Pal Singh (PW 4), two clerks
from the Sales-tax office. The recorded statement of Dal
Chand was then read out to Dal Chand" and was admitted to be
correct by him in the presence and hearing of the Panch
witnesses. Dal Chand then produced seven currency notes of
the denomination of Rs, 10/- each. The Inspector treated
those notes with phenol-phythelene powder. He demonstrated
to the witnesses how the fingers of a person touching a note
treated with such powder would turn violet when dipped in a
solution of sodium carbonate. The treated notes were then
returned to Dal Chand with the direction that he should hand
over the same to the appellant on demand. The Panch
witnesses were instructed to keep close to Dal Chand to
witness the passing of the tainted notes. The raiding party
headed by Inspector Paras Nath, including Dal Chand and the
panch witnesses then reached New . Delhi Railway Station at
about 5.25 p.m. Dal Chand and Sohan Pal Singh were directed
to go ahead while the rest of the party took up positions
nearby. Dal Chand and his companions found the appellant
talking to some per-
15
son just outside the Police Post. After a couple of minutes
when the A appellant was free from that talk, and was alone,
Dal Chand approached him and said that he was the brother of
Ramesh (PW 1) and had been sent by the women to pay him Rs.
70/- for getting Ramesh released. The appellant first
demanded Rs. l00/- but later received Rs. 70/- from Dal
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 20
Chand and put the currency notes in the left side pocket of
his pants which he was then wearing. The appellant than told
Dal Chand to go away, and assured the latter that Ramesh
would be releated. The appellant then went into his room in
the Police Post. Inspector Paras Nath and party followed the
appellant into the room. Inside they found him sitting on a
cot and Ramesh PW squatting on the floor. The Inspector
disclosed his identity and accused the appellant of having
received a bribe. The appellant kept mum. The Inspector then
recovered the currency notes Ex. Pl to P7, from the pocket
of the pants which the appellant was then wearing. He
compared the numbers of the notes with those noted in the
memorandum PW 3/P. They tallied. Pointing towards Ramesh,
the Inspector asked the appellant as to who he was. The
appellant replied that he (Ramesh) had been found loitering
outside in suspicious circumstances and was brought for
interrogation. The left hand fingers of the appellant were
then dipped in a solution of sodium carbonate which turned
pink. After preparing the seizure memo and the raid report
(PW 9/A), the Inspector sent the same to the police Station
for registration of the formal First Information Report.
After completing the investigation and securing the
necessary sanction for prosecution of the appellant, he laid
a charge-sheet against him in the court of the Special
Judge, Delhi.
Examined under s 342, Cr.P.C., the appellant denied the
prosecution case, and gave this version of the occurrence.
"I left the Police Post at 4.15 p.m. in uniform
for patrol duty at the New Delhi Railway Station
platforms because there is a heavy rush of trains at
that time. I was sent for by the Incharge Police Post
through Dev Raj Constable. I came to the Police Post
through an entrance towards the plat form. At that time
Incharge, Police Post was busy in a con versation on
telephone. I was carrying a baton in my hand. I entered
my room and placed the baton on the table. My room is
hardly 8’x4 1/2. Just at that time Inspector Paras Nath
came there and secured me near the door of my room. On
a Pew occasions I did not oblige Inspector Paras Nath
for getting seats reserved at the Railway Station for
his friends and relatives. He had strained relations
withme. I knew Dal Chand and Ramesh, They are pimps.
They often used to come to the Railway Station to
solicit customers who were visitors to Delhi. On a
number of occasions I saw them ac companied by
prostitutes of G.B. Road. I reprimanded them several
times not to frequent the Railway platforms in that
manner. They were out to harm me. The recovered pants
was hanging on a peg in my room and it was removed from
there by the Inspector. I was wearing my uniform. No
16
proceedings of the type mentioned above took place in
my room. l got confused on seeing the Anti-Corruption
Staff. I was afraid that they might create trouble for
my bail and there fore I did not resist or protest. I
have served in the Police Department for the last 19
years and there is not a single ad verse entry" major
or minor in my service book. I am innocent."
In defence, the appellant examined five witnesses-all
members of the Police force.
Head Constable Jabar Singh (DW 1 ) testified on the
basis of the service record, that there was not a single
adverse entry in the Character Roll of the appellant, and
that no less than 60 commendation certificates, some of them
accompanied by cash rewards, were awarded to. him since his
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 20
joining the Police force on 7-6-1951. Constable Sardar Singh
DW2, proved with reference to the official records brought
by him that Ramesh (PW 1) was convicted and fined on 14-1-
1966 by a Delhi Magistrate under s. 12 of the Gambling Act.
Constable Dev Raj, DW 3 of the Railway Police Post was
examined to show that at the time of occurrence, the
appellant was in police uniform and was not wearing the
civilian clothes, including the pants from which the tainted
currency notes are alleged to have been recovered. He
testified that on 16-1-1970 at about 4.45 p.m., the Incharge
Police Post directed the witness to convey a message to the
appellant that he was wanted on the telephone to receive a
call from his sister from Kirti Nagar. Accordingly, the
witness went and conveyed the message to the appellant who
was then in uniform, patrolling the Railway platform.
Constable Muharrar Sujan Singh, DW 4, produced the Daily
Diary of the Police Post, containing entry No. 40, showing
that on 16-1-1970, the appellant had departed from the
Police Post for patrol duty at 4.15 P.M. He. stated that
there was a Standing order according to which all Police;
Officers going on patrol were peremptorily required to go in
uniform.
Om Prakash Sahni, DW 5, is an important witness
examined by the defence. He is a Sub-Inspector who at the
relevant time, was the charge of the Police Post of New
Delhi Railway Station. His room in the Police Post is on one
side of the verandah and that of the accused on the other
side at a distance of hardly six feet. The dimensions of the
room of the accused are 7’x6’ and it has only one door which
opens into the verandah. DW 5 completely discounted the
prosecution version. According to him, on 16-1-1970, he was
throughout present in his room from 1.30 P.M. to 5.55 P.M.
During this period he did not see any stranger, or suspect
in the room of the accused. The witness swore that between
5.30 P.M. and 6 P.M., the accused was on patrol duty. He
further stated that at about 5.45 P.M. a telephone call was
received from the sister of the accused from Kirti Nagar,
whereupon he sent Constable Dev Raj to inform the accused
about it. In response to the message sent by the witness,
Sat Pal accused in Police uniform came from the side of the
Railway platform to the Post. At that time" the witness was
attending to another telephone message, consequently, the
accused went into his room. The witness then left for patrol
duty, after telling the accused about the telephone message.
17
The prosecution evidence which is the mainstay of the
conviction of the appellant may be catalogued under these
captions:
A. Direct Evidence
(i) Demand of the bribe: Evidence in regard to
this fact was given by Ramesh, PW 1, Mst.
Maya, PW 2, and Mst Jayna PW 8.
(ii) Passing of tainted currency notes, P1 to P7
to the accused Evidence with regard to this
fact was given by Dal Chand (PW 7) and
Inspector Paras Nath, PW 9.
(iii)Recovery of the tainted notes from the person
of the accused. Dal Chand PW 7 and Inspector
Paras Nath PW 9 are the only witnesses who
have deposed to this fact For proof of this
fact, support has also been sought from the
evidence of the hostile witnesses, PW 3 & 4.
B. Circumstantial Evidence
(i) The circumstance that Ramesh was found
detained by the appellant.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 20
(ii) on being accused by the Inspector, that he
had obtained a bride, the appellant kept mum
and did not protest or refute the accusation.
It may be noted at the outset, that Surinder Nath, PW 3
and Sohan Pal Singh PW 4, who were supposed to be
independent Panch witnesses of the trap, turned hostile to
the prosecution and were thoroughly cross-examined by the
Public Prosecutor with the leave of the court to impeach
their credit. In cross-examination, Surinder Nath, however,
said that when the Inspector accused the appellant of
receiving a bribe, the latter kept mum. He further supported
the prosecution to the extent, that when the fingers and the
pant pocket of the accuscd were dipped in a solution of
sodium carbonate, they turned pink. Excepting with regard to
the reticence of the accused on the query made by the
Inspector, Sohan Pal Singh, who was supposed to have kept
close company with Dal Chand, did not support the
prosecution at all.
The learned trial Judge found that "the complainant and
party are "men of shady and questionable character" but
according to him, that was no ground to discard their
testimony. Referring to certain observations of Dua J. in
Ram Sarup Singh v. The State,(,l) he held that persons with
such shady characteristics fall easy victims to the illegal
exploits of unscrupulous and dishonest officers. The Judge
was further of the opinion that the testimony of the Panch
witness Surindernath (PW3) also cannot be discarded
straightaway on account of his having been cross-examined by
the prosecution". He rejected the defence version propounded
by DWs 3 and 5 and concluded that the evidence given by the
PWs including Dal Chand, and Inspector Paras Nath, coupled
with the compelling circumstantial evidence was
(1) (1967) Cr. L. J. 744.
18
sufficient to establish the passing of the tainted notes to
the accused and the subsequent recovery of the same from
him. Calling in aid the presumption under sec. 4 of the
Prevention of Corruption Act, he convicted the appellant
under sec. 5(2) read with sec. S(l)(d) of the Act and under
s. 161, Penal Code.
In appeal, the High Court affirmed the findings of the
trial Court. In seeking support for the prosecution case
from the evidence of the hostile witnesses, it went far
ahead of the trial court. The High Court sought assurance
from the statements of PW 3 and 4 thus:
"After a detailed reference to the evidence
adduced in this case-it becomes clear that P.Ws 3 and 4
in their statements under s. 161(3) duly proved in
terms of the proviso to section 162 of the Code of
Criminal Procedure, did support the version which was
given at the trial by PWs. 1, 7 and 9. If it were open
to an accused person to utilise the aforementioned
proviso to urge that the contradictions point in a
particular direction then it is equally open to the
prosecution to urge that the contradictions establish
on the record that the statement made earlier to which
the statement made in court was contrary, was the one
which was the correct statement."
Perhaps realising that in making use of the police
statement it was going too far, the High Court then switched
over to the alternative argument:
"It is not only on the basis of the statements
falling within the purview of the proviso to section
162 that I am coming to the conclusion that the
prosecution has succeed ed in proving its case. Even
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 20
otherwise I am satisfied that Ramesh was kept in
custoday by the appellant whose hands, when dipped in
the sodium carbonate solution turned pink. The same was
the result when the pocket of Pant Exhibit P; 11 was
dipped in the sodium carbonate ’solution."
Conceding that the testimony of the trap witnesses was
interested testimony, the High Court held that it was not
correct to say that their evidence cannot, as a matter of
law, be accepted without corroboration. On this point, it
referred to this Court’s decision in Dalpat Singh v. State
of Rajasthan.(1) Even so, according to the High Court the
interested testimony of PWs 7 and 9 "received full
corroboration from PW 1". The High Court summarily brushed
aside the defence version without adverting to the defence
evidence at all.
Mr. Frank Anthony, the learned Counsel for the
appellant con tended (a) that the courts below erred in law
in using the reticence of the appellant as evidence against
him. This silence amounted to a statement made to the police
in the course of investigation, and as such it was
inadmissible, being hit by s. 162, Cr. P.C. (Reference
(I) A. I. R. 1969 SC. 17.
19
has been made to Narasimham v. State(ll). In any case, this
A reticent conduct of the appellant was not indicative of
his guilt; (b) that the courts below have erred in using a
part of the testimony of the hostile witnesses in support of
the prosecution case. ’They had been fully cross-examined by
the prosecution to impeach their credit, and indeed their
evidence stood thoroughly discredited (For this proposition
reliance has been placed on a recent decision of this Court
in Jagir Singh v. The State (2); ‘(C) that the High Court
has erred in using the police statements of P.Ws. 3 and 4
for seeking assurance and corroboration of the prosecution
story. Such user is not permissible under the proviso to
Sec. 162, Cr. P.C. (d) (i) that it was clear from the record
that P.Ws. 1, 2, 7 and 8 are persons of low moral character
and were haunting the Railway Station in connection with
their immoral trade, that the appellant was a stumbling
block in the way of their immoral pursuits, and consequently
these PWs had a motive to falsely implicate the appellant.
(ii) PW 9, who was an Inspector of Anti-Corruption Police
was also a highly interested witness. His overzeal can be
gauged from the fact that he investigated this offence under
s. 161, Penal Code, although he was not duly empowered to do
so. (iii) The evidence of these interested witnesses is
replete with material discrepancies, and, as a rule of
prudence, could not, in the absence of corroboration from
independent sources, be accepted particularly when it stood
sharply contradicted by the qualitatively better testimony
of DWs 3 and S. (Reliance has been placed on R. P. Arora v.
State of Punjab (3)" (e) That the trial Court erred in law
in invoking the presumption under s. 4 of the Prevention of
Corruption Act for convicting the appellant for an offence
under s. 4(23 read with s. 4(1)(d) of the Act. In support of
this argument, reference has been made to Sita Ram v. The
State of Rajastkan.(4).
As against the above, Mr. V. Mahajan" the learned
Counsel for the Respondent, submits that the evidence of the
interested witnesses has been accepted by the courts below,
and consequently this Court, should not in keeping with its
practice, disturb these concurrent findings of fact. It is
maintainted that there is no rule of law, that the evidence
of an interested witness cannot be acted upon without
corroboration, that, in any case, the evidence of, PWs 1, 7
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 20
and 9 was sufficiently corroborated by the circumstantial
evidence consisting of the conduct of the accused in keeping
mum to the accusation made by the Inspector and by the
factum of. Ramesh’s detention by the appellant. The said
conduct of the appellant, proceeds the argument, was
relevant under sec. 8, Evidence Act and was a detention
pointer towards his guilt. Counsel has not tried to support
the use of the police statements of PWs 3 and 4 made by the
High Court. His point is that even without such support, the
evidence on record was sufficient to bring home the charges
to the appellant. Counsel has further invited our attention
to the copy of the judgment of the Delhi High Court in
Criminal Revision No. 505 of 1968 (Raj Kumar v. Staie)
delivered on the 7th April 1970 (produced by the appellant’s
(1) A. I. R. 1969 A. P. 271. (2) A. I. R 197s S. C. 1400.
(3) A. I. R. 1973 s. C.r498. (4) A. I. R. 1975 S. C. 1324
20
side in this Court) wherein it is recited that all
Inspectors of Police in the Anti-Corruption Branch of the
Delhi Administration have been authorised by an order dated
March 21, 1968 passed under sec. 5A(l) of the Prevention of
Corruption Act, by the Administrator of the Union Territory
of Delhi to investigate offences under sec. 5(1)(d) of this
Act. According to Counsel the mere fact that the authority
given to Inspector Paras Nath did not extend to
investigation of offences under sec. 161, Penal Code, would
not vitiate either the validity of the trial or the
probative value of his evidence.
It is true that ordinarily, as a matter of practice,
this Court does not review the evidence and disturb
concurrent findings of fact unless those findings are
clearly unreasonable or are vitiated by an illegality or
material irregularity of procedure or otherwise contrary to
the fundamental principles of natural justice and fair-play.
The instant case is one which falls within the exception to
this rule. As shall be presently discussed, the courts below
have adopted a basically wrong approach. They have not only
used the statement of certain witnesses in a manner which is
manifestly improper or impermissible under the law, but have
also erred in accepting the testimony of interested
witnesses without due caution and corroboration, requisite
in the peculiar circumstances of the case. It is therefore,
necessary to have another look at the evidence and the
salient features of the case.
We will begin with the evidence of the trap witnesses.
They are Ramesh PW 1, Dal Chand PW 7 and Inspector
Parasnath, PW 9. It cannot be gainsaid that all the three
were concerned with the success of the trap and as such,
were interested witnesses. What the courts below appear to
have failed to note is that qualitatively, the evidence of
these witnesses particularly PWs 1 and 7 was far inferrior
to the testimony of an ordinary interested witnesse. While
the trial court was unduly indulgent and modest in allowing
these witnesses to pass under the euphemistic title of
"questionable and shady ’ characters, the High Court
overlooked their antecedents altogether.
Evasive denials of Ramesh and company not with
standing, sufficient material has been brought on the record
from which it is clearly discernible that PWs Ramesh and Dal
Chand are pimps and they were haunting at the Railway
Station to solicit customers for Mst. Maya and Mst. Jayna.
The facts which have been elicited from Ramesh and
company in cross-examination are these:ts There is an
accommodation, com prising of one hall, and side-rooms on
G.B. Road which is known as the Kotha (brothel) of Mst.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 20
Maya, Mst. Jayna, Mst. Maya and one Mst. Lachmi have been
living together in these premises for the previous 8 or 9
years The rent of these premises for all the occupants is
being paid by Mst. Maya. Mst. Lachmi is the mistress of
Ramesh and the latter lives on her professional income. Mst.
Maya is the keep of Dal Chand who maintains her servant.
Mst. Jayna, also. Ramesh also claims to be a servant of Mst.
Maya. He also lives in the Kotha (vide Dal Chand PW 7) . Dal
Chand claimed that he was living
21
separately at Pahar Ganj. But he admitted that he has been
frequently visiting the Kotha of Maya and on the day of
occurrence also he was there when, according to the witness,
Mst. Maya came and informed him about the demand of the
bribe by the appellant. Dal Chand stated that Ramesh was
only a brother by courtesy. He admitted that Ramesh, Maya
and Jayna were arrived by the Police under the Suppression
of Immoral Traffic Act, and the charge against him and
Ramesh was that they were pimps and their women companions
were carrying on the profession of prostitution. He further
admitted that in 1969, Mst. Maya was convicted under the
said Act by a Delhi Magistrate. Ramesh and Maya both were
being jointly prosecuted. (on the date of their examination)
for an offence under the said Act. It is further admitted
(vide Ramesh) that one Mst. Mumtaz, a dancing girl of
Bombay, is the friend and she frequently comes and stays in
the kotha of Mst. Maya. Ramesh was convicted for an offence
under the Gambling Act also.
Viewed against this background, the suggestion made by
the defence in cross-examination to these witnesses, that
they were loitering at the Railway Station to procure
customers for their immoral business could not be said to be
devoid of substance. The purpose of their visit to the
Railway Station at that busy hour, according to them was to
see Mst. Mumtaz who was then expected to arrive from Bombay
by train. This Mumtaz was not produced by the prosecution,
though she was repeatedly summoned. In the circumstances,
the defence version, that these persons were roaming there
to hawk their "wares" does not fall beyond the orbit of
reasonable probability. The above circumstances further lend
assurance to the appellant’s plea that he had on several
occasions, previously, reprimanded these witnesses for
visiting the Railway Station for immoral trade. Even,
according to the prosecution, the appellant had rounded up
Ramesh and party on the accusation that they were
soliciting, customers for their immoral business. Dal Chand
state(1) that on being questioned by Inspector Parasnath,
the appellant explained that since Ramesh was found
loitering at the Railway Station in suspicious
circumstances, he had been brought for interrogation. This
explanation receives confirmation of Ramesh who stated that
the accused had questioned him about the purpose of their
visit to the Railway Station, and when the witness told him
that they had come to receive Mumtaz, the accused, not being
satisfied, asked whether she was also being brought for
prostitution. The appellant had also threatened to prosecute
and put them behind the bars.
The courts below have believed the word of these pimps
and women of easy virtue that the appellant did all this to
extort a bribe. The trial court- with reference to certain
observations of Dua J. in Ram Sarups case, (ibid) treated
the "shady and questionable characteristic" of these witness
as a point in favour of the prosecution. lt argued that
persons with such antecedents can be easily exploited by
corrupt police officers for extorting bribes. Thus. in a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 20
way, what was a stigma, was considered a badge of honour. We
are, with respect, unable to appreciate this reasoning. The
observations in Ram Swarup’s case, were not intended to lay
down a rule of universal
22
application. Indeed for weighing evidence there can be no
specific canon. No generalisation is possible in such
matters. each case has its own features and each witness his
own peculiarities. Here was a police officer with an
unblemished record, rather an outstanding record of 19
years’ service. Such an officer would be least disposed to
countenance pimping within his territorial jurisdiction. He
must therefore have been an eye-sore to them. It could not
therefore be said that these witnesses had no motive
whatever to falsely implicate the appellant.
Thus the conduct of the appellant in restraining Ramesh
for interrogation could be the innocent act of an honest and
duty-conscious Police officer.
Then the evidence of these witnesses was replete with
discrepancies, contradictions and improbable versions. PW 1
stated that they were all taken by a Constable to a room and
there the appellant gave him a beating. This was in sharp
conflict with the version of Mst. Jayna, that it was PW 1
alone who was first rounded up by the Cons table. Again, PW
1 would have it believed that he had Rs. 30/- in all with
him which he gave to the appellant. This was sharply
contradicted by Mst Jayna, according to whom, it was Mst.
Maya and not PW 1-who had given this money to the appellant.
In the context, it may be noted that apart from Rs. 70/- in
tainted notes, the further sum of Rs. 30/- was not recovered
from the appellant or from anywhere in the Police Post. The
story of the advance payment of Rs. 30/- therefore does not
inspire confidence. Further the conduct of the appellant in
not releasing Ramesh forthwith even after the alleged
receipt of Rs. 70/- as gratification, was not the natural
conduct of a person whose demand for a bribe had been
satisfied. Dal Chand has said that the appellant did not, on
receiving the amount allow Ramesh to go away, but said that
Dal Chand could go, and that Ramesh would be sent later on.
Ordinarily such discrepancies and small improbabilities
in the evidence of witnesses are not of much consequence.
But when the witnesses are manifestly disreputable persons,
their testimony before it can be acted upon, must pass the
test of severe scrutiny and in the process and in the
context of the case even minor informities may assume
importance.
It is true that there is no absolute rule that the
evidence of an interested witness cannot be accepted without
corroboration. But where the witnesses have poor moral fibre
and have to their discredit a heavy load of bad antecedents,
such as those of PWs 1, 2, 7 and 8, having a possible motive
to harm the appellant, who was an obstacle in the way of
their immoral activities it would be hazardous to accept
their testimony, in the absence of corroboration on crucial
points from independent sources. If any authority is needed
reference may be made to R. P. Arora v. State of Punjab(1),
wherein this
(1) A. I. R. 1973 S. C. 498.
23
Court ruled that in a proper case, the Court should look for
independent corroboration before convicting the accused
person on the evidence of trap witnesses.
Well then, was such corroboration of the testimony of
the interested witnesses forthcoming in the present case ?
In this connection, Mr. Mahajan referred to two
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 20
circumstances: (1) the detention of Ramesh and (ii) the
conduct of the appellant in keeping mum to the charge that
he had received a bribe. Both these circumstances were not
of a determinative tendency. Both were compatible with the
innocence of the appellant. We have already discussed the
first and found that instead of advancing the case for the
prosecution it lends; assurance to the explanation of the
appellant that Ramesh had been brought for interrogation as
he was roaming there in suspicious circumstances.
As regards the reticence of the appellant on the query
made by the Inspector, we do not think it necessary to
burden this judgment with a discussion of the question
whether this conduct amounts to a statement made to a Police
officer in the course of investigation and as such, hit b
sec. 162 of the Code of Criminal Procedure. Suffice it to
say that even on the assumption that it was admissible as
conduct-and not as a statement-under Sec. 8, Evidence Act,
its probative value in the circumstances of this case would
be almost nil. The appellant explained that he did not
protest and resist out of fear, that the Inspector might
make matters worse for him, even for getting bail. It would
not be unusual even for an innocent officer to be frightened
out of wits on being suddenly accused of bribe-taking by a
superior officer.
Thus these two circumstances do not lend any assurance
TO the testimony of the trap witnesses. Nor could such
assurance be sought from the evidence rendered by Inspector
Parasnath. True, that it has not been shown that he had any
hostile animus against the appellant, though such an
allegation was made. Nor has it been shown that he had long
acquaintance or friendship with Dal Chand and party. But we
cannot lose sight of the stark fact that he was an Inspector
of the Anti-Corruption Staff of Police. He was the architect
of the trap and the head of the raiding party. Although the
power conferred on him under the order-dated March 21, 1968
by the Administrator of the Union Territory of Delhi, did
not extend to the investigation of an offence under s. 161,
Penal Code, yet, with zeal outrunning discretion, he went
ahead with the execution of the trap and the investigation.
Being deeply concerned with the success of the case, he was
also an interested witness. Not being an independent
witness, his evidence could not furnish the kind of
corroboration requisite in the circumstances of the case
This takes us to the evidence of the independent
witnesses, PW 3 and 4. Both have not, in the main, supported
the prosecution. With the leave or the court, the Public
Prosecutor cross-examined and confronted them with their
contradictory statements which they had made to Inspector
Parasnath during investigation the question is,
3-L1276SCI/75
24
could the court validly pick out tiny bits from their
evidence and use the same to support the prosecution case ?
Relying on Jagir Singh v. State, (ibid) Mr. Anthony
submits that when a prosecution witness, being hostile, is
cross-examined by the Public Prosecutor with the leave of
the Court, his entire evidence is to be discarded as a
matter of law.
Since this vexing question frequently arises, and the
observations made by this Court in Jagir Singh’s case (ibid)
do not appeal;- to have been properly understood, it will be
appropriate to clarify the law on the point.
The terms "hostile witness", ’adverse witness",
"unfavourable witness" "unwilling witness" are all terms of
English law. At Common Law, if a witness exhibited manifest
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 20
antipathy, by his demeanour, answers and attitude, to the
cause of the party calling him, the party was not as a
general rule, permitted to contradict him with his previous
inconsistent statements, nor allowed to impeach his credit
by general evidence of bad character. This rule had its
foundation on the theory that by calling the witness, a
party represents him to the Court as worthy of credit, and
if he afterwards attacks his general character for veracity,
this is not only mala fides towards the Court, but, it
"would enable the party to destroy the witness if he spoke
against him, and to make him a good witness if he spoke for
him with the means in his hand of destroying his credit if
he spoke against him" (see Best on Evidence" p. 630, 11th
Edn.). This theory or assumption gave rise to a considerable
conflict of opinion as to whether it was competent for a
party to show that his own witness had made statements out
of Court inconsistent with the evidence given by him in
court. The weight of the ancient authority was in the
negative.
In support of the dominant view it was urged that a
allow party directly to discredit or contradict his own
witness would tend to multi ply issues and enable the party
to get the naked statement of a witness before the jury,
operating in fact as substantive evidence, that this course
would open the door wide open for collusion and dishonest
contrivance.
As against this, the exponents of the rival views that
a party should be permitted to discredit or contradict his
own witness who turns unfavourable to him, argued that this
course in necessary as a security against the contrivance of
an artful witness, who otherwise might recommend himself to
a party by the promise of favourable evidence and afterwards
by hostile evidence ruin his cause. lt was reasoned further
"that this is a question in which not only the interests of
litigating parties are involved, but also the more important
general interests of truth, in criminal as well as in civil
proceedings, that the ends of justice are best attained by
allowing a free and ample scope for scrutinising evidence
and estimating its real value and that in the administration
of criminal justice more especially the conclusion of the
proof of contrary statements might be attended with "the
worst consequences". Besides it by no means follows That the
25
object of a party in contradicting his own witness is to
impeach his A veracity, it may be to show the faultiness of
his memory" (see Best, page 631, 11th Edn.).
The rigidity of the rule prohibiting a party to
discredit or contradict its own witness was to an extent
relaxed by evolving the terms hostile witness" and
"unfavourable witness" and by attempting to draw a
distinction between the two categories. A "hostile witness"
is described as one who is not desirous of telling the truth
at the instance of the party calling him, and an
’unfavourable witness’ is one called by a party to prove a
particular fact in issue or relevant to the issue fails to
prove such fact, or proves an opposite fact (see Cross on
Evidence, p. 220, 4th Edn. citing Stephen’s Digest of the
Law of Evidence) .
In the case of an ’unfavourable witness’, the party
calling him as allowed to contradict him by producing
evidence aliunde but the prohibition against cross-
examination by means of leading questions or by
contradicting him with his previous inconsistent statements
or by asking questions with regard to his discreditable past
conduct or previous conviction, continued. But in the case
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 20
of a ’hostile witness the Judge could permit his
examination-in-chief to be conducted in the manner of cross-
examination to the extent to which he considered necessary
in the interests of justice. With the leave of the court,
leading questions could be put to a hostile witness to test
his memory and perception or his knowledge of the facts to
which he was deposing. Even so the party calling him, could
not question him about his bad antecedents or previous
convictions, nor could he produce evidence to show that the
veracity of the witness was doubtful. But the position as to
whether a previous inconsistent statement could be proved
against a hostile witness, remained as murky as ever.
To settle the law with regard to this matter, s. 22 of
the Common Law Procedure Act, 1854 was enacted. It was
originally applicable to civil proceedings, but was since
re-enacted in s. 3 of the Criminal Procedure Act, 1865 and
extended in identical terms to proceedings in criminal
courts as well. P
Section 3 provides:
"A party producing a witness shall not be allowed
to impeach his credit by general evidence of bad
character, but he may, in case the witness shall, in
the opinion of the Judge, prove adverse, contradict him
by other evidence, or by leave of the judge, prove that
he has made at other times a statement inconsistent
with his present testimony but before such last-
mentioned proof can be given the circumstances of the
supposed statement, sufficient to designate the
particular occasion, must be mentioned to the witness,
and he must be asked whether or not he has made such
statement."
The construction of these provisions however, continued
to cause difficulty, particularly in their application to
’unfavourable’ witnesses.
26
In Greenough v. Eicles(1), these provisions were found so
confusing, that Cockburn C. J. said that "there has been a
great blunder in the drawing of it, and on the part of those
who adopted it."
To steer clear of the controversy over the meaning of
the terms "hostile" witness, "adverse" witness,
"unfavourable" witness which had given rise to considerable
difficulty and conflict of opinion in
England, the authors of the Indian Evidence Act, 1872 seem
to have advisedly avoided the use of any of those terms so
that, in India, the grant of permission to cross-examine his
own witness by a party is not conditional on the witness
being declared "adverse’ or "hostile". Whether it be the
grant of permission under s. 142 to put leading questions,
or the leave under sec. 154 to ask questions which might be
put in cross-examination by the adverse party, the Indian
Evidence Act leaves the matter entirely to the discretion of
the court (see the observations of Sir Lawrence Jenkins in
Baikuntha Nath v. Prasannamoyi) (2). The discretion
conferred by s. 154 on the court is unqualified and
untrammeled, and is apart from any question of "hostility".
It is to be liberally exercised whenever the court from the
witness’s demeanour, temper, attitude, bearing, or the tenor
and tendency of his answers, or from a perusal of his
previous inconsistent statements or otherwise, thinks that
the grant of such permission is expedient to extract the
truth and to do justice. The grant of such permission does
not amount to an adjudication by the court as to the
veracity of the witness. Therefore, in the order granting
such permission, it is preferable to avoid the use of such
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 20
expressions, such as "declared hostile", "declared
unfavourable", the significance of which is still not free
from the historical cobwebs which, in their wake bring a
misleading legacy of confusion, and conflict that had so
long vexed the English Courts.
It is important to note that the English statute
differs materially from the law contained in the Indian
evidence Act in regard to cross examination and
contradiction of his own witness by a party. Under the
English Law, a party is not permitted to impeach the credit
of his own witness by general evidence of his bad character,
shady antecedents or previous conviction. In India, this can
be done with the consent of the court under s. 155. Under
the English Act of 1865, a party calling the witness can
"cross-examine’ and contradict a witness in respect of his
previous inconsistent statements with the leave of the
court, only when the court considers the witness to be
adverse’. As already noticed, no such condition has been
laid down in secs. 154 and 155 of the Indian Act and the
grant of such leave has been left completely to the
discretion of the Court, the exercise of which is not
fettered by or dependent upon the "hostility" or
"adverseness" of the witness. In this respect, the Indian
Evidence Act is in advance of the English law. The Criminal
Law Revision J Committee of England in its 11th Report, made
recently, has recommended the adoption of a modernised
version of sec. 3 of the Criminal Procedure Act, 18-65,
allowing contradiction of both unfavourable and hostile
witnesses by other evidence without leave of the court.
(1) (1859) 5 C. B. N. 786. (2) A. I. R. 1922 Privy
Council 409.
27
The Report is, however, still in favour of retention of the
prohibition A on a party’s impeaching his own witness by
evidence of bad character.
The danger of importing, without due discernment, the
principles enunciated in ancient English decisions, for
interpreting and supplying the Indian Evidence Act has been
pointed out in several authoritative pronouncements. In
Prophulla Kumar Sarkar v. Emperor(1), an eminent Chief
Justice, Sir George Rankin cautioned, that "when we are
invited to hark back to dicta delivered by English Judges,
however eminent, in the first half of the nineteenth
century, it is necessary to be careful lest principles be
introduced which the Indian Legislature did not see fit to
enact". It was emphasised that these departures from English
law "were taken either to be improvements in themselves or
calculated to work better under Indian conditions".
Unmindful of this substantial difference between the
English Law and the Indian Law, on the subject, the Calcutta
High Court in some of its earlier decisions, interpreted and
applied sec. 154 with reference to the meaning of the term
"adverse" in the English Statute as construed in some
English decisions, and enunciated the proposition that where
a party calling a witness requests the court to declare him
a "hostile" and with the leave of the court cross-examines
the witness, the latter’s evidence should be excluded
altogether in criminal passes. This view proceeds on the
doctrine enunciated by Campbell C.J. in the English case,
Faulkner v. Brine(2), that the object of cross-examination
of his own witness by a party is to discredit the witness in
toto and to get rid of his testimony altogether. Some of
these decisions in which this view was taken are: Luchiram
Motilal v. Radhe Charan(3); E. v. Satyendra Kumar Dutt(4);
Surendra v. Ranee Dassi,(5), Khijruddin v. E.(6), and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 20
Panchanan v. R.(7).
The fallacy underlying this view stems from the
assumption that the only purpose of cross-examination of a
witness is to discredit him; it ignores the hard truth that
another equally important object of cross-examination is to
elicit admissions of facts which would help build the case
of the cross-examiner. When a party With the leave of the
court, confronts his witness with his previous inconsistent
statement, he does so in the hope that the witness might
revert to what he had stated previously. If the departure
from the prior statement is not deliberate but is due to
faulty memory or a like cause, there is every possibility of
the witness veering round to his former statement. Thus,
showing faultiness of the memory in the case of such a
witness would be another object of cross-examining and
contradicting him by a party calling the witness. In short,
the rule prohibiting a party to put questions in the manner
of cross-examination or in a
(1) I. L. R. 58 Cal 1404. (2) (1858) I. F. & F.
254.
(3) (1921) 34, C. I. J. 107. (4) A. I. R. 1923 Cal.
463.
(5) 47 Cal. 1043. (6) A. I. R. 1926 Cal. 139.
(7) 57 Cal. 1266.
28
leading form to his own witness is relaxed not because the
witness has already forfeited all right to credit but
because from his antipathetic attitude or otherwise, the
court feels that for doing justice, his evidence will be
more fully given, the truth more effectively extricated and
his credit more adequately tested by questions put in a more
pointed, penetrating and searching way.
Protesting against the old view of the Calcutta High
Court, in Shobraj v. R. Terrel, C.J., pointed out that the
main purpose of cross-examination is to obtain admission,
and it would be ridiculous to assert that a party cross-
examining a witness is therefore prevent ed from relying on
admission and to hold that the fact that the witness is
being cross-examined implies an admission by the cross
examiner that all the witness’s statements are falsehood.
The matter can be viewed yet from another angle.
Section 154 speaks of permitting a party to put to his own
witness "questions which might be put in cross-examination".
lt is not necessarily tantamount to "cross-examining the
witnesses". "Cross-examination" strictly speaking, means
cross-examination by the adverse party as distinct from the
party calling the witness Sec. 137, Evidence Acts. That is
why sec. 154 uses the phrase "put any questions to him which
might be put in cross-examination by the adverse party".
Therefore. neither the party calling him, nor the adverse
party is, in law, precluded from relying on any part of the
statement of such a witness.
The aforesaid decisions of the Calcutta High Court were
over ruled by a Full Bench in Praphulla Kumar Sarkar’s case
(supra). After an exhaustive survey of case law, Rankin C.J.
who delivered the main judgment, neatly summed up the law at
pages 1428-1430 of the Report:
"In my opinion, the fact that a witness is dealt
with under section 154 of the Evidence Act, even when
under that section he is ’cross-examined’ to credit, in
no way warrants a direction to the jury that they are
bound in law to place no reliance on his evidence, or
that the party who called and cross-examined him can
take no advantage from any part of his evidence. There
is moreover no rule of law that if a jury thinks that a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 20
witness has been discredited on one point they may not
give credit to him on another. The rule of law is that
it is for the jury to say.‘’
After answering in the negative, the three questions
viz., whether. the evidence of a witness treated as
’hostile’ must be rejected in whole or in part, whether it
must be rejected so far it is in favour of the party calling
the witness, whether it must be rejected so far it is in
favour of the opposite party, the learned Chief Justice
proceeded:
(1) I.L.R.9 Patna 474
29
"....the whole of the evidence so far it affects
both parties favourably or unfavourably must go to the
jury for what it worth..
If the previous statement is. the deposition
before the committing Magistrate and if it is put in
under section 288. Criminal Procedure Code, so as to
become evidence for all purposes, the jury may in
effect be directed to choose between the two statements
because both statements are evidence of the facts
stated therein. But in other cases the jury may not be
so directed, because prima facie the previous statement
of the witness is not evidence at all against the
accused of the truth of the facts stated therein. The
proper direction to the jury is that before relying on
the evidence given by the witness at the trial the jury
should take into consideration the fact that he made
the previous statement, hut they must not treat the
previous statement as being any evidence at all against
the prisoner of the facts therein alleged
In a criminal case, however, the previous unsworn
statement of a witness for the prosecution is not
evidence against the accused of the truth of the facts
stated therein save in very special circumstances e.g.,
as corroboration under section 157 of his testimony. in
the witness-box on the conditions therein laid down. If
the case be put of the previous statement having been
made in the presence and hearing of the accused, this
fact might under section 8 alter the position; but the
true view even then is not that the statement is
evidence of the truth of what it contains. but that if
the jury think that the conduct, silence or answer of
the prisoner at the time amounted to an acceptance of
the statement or some part of it, the jury may consider
that acceptance as an admission [The King v. Norton,
Percy Wililam Adams (1) & (2)], But apart from such
special cases, which attract special principles, the
unsworn statement, so far as the maker in his evidence
does not confirm and repeat it, cannot be used at all
against the accused as proof of the truth of what it
asserts."
We are in respectful agreement with this enunciation.
It is a correct exposition of the law on the point.
(1) [1910] 2, K. B. 496. (2) (1923) 17, Crim. App. Rep.
77.
30
The Bombay(1) Madras(2), Patna(3), Rajasthan(4),
Oudh(5), Punjab(6), Madhya Pradesh(7), Orissa(8), Mysore(9),
Kerala(10) and Jammu and Kashmir(11) Courts have also taken
the same view.
In the case of an unfavourable witness, even in England
the better opinion is that where a party contradicts his own
witness on one part of his evidence he does not thereby
throw over all the witness’s evidence, though Its value may
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 20
be impaired in the eyes of the Court (Halsbury, 3rd Edn.
Vol. 15 Para 805).
In Bradley v. Ricardo(12), when it was urged as an
objection that this would be giving credit to the witness on
one point after he has been discredited on another, Tindal
C.J. brushed it aside with the observation that
"difficulties of the same kind occur in every cause where a
jury has to decide on conflicting testimony".
In Narayan Nathu Naik v. Maharashtra State(13), the
court actually used the evidence of the prosecution
witnesses who had partly resiled from their previous
statements, to the extent they supported the prosecution for
corroborating the other witnesses.
From the above conspectus, it emerges clear that even
in a criminal prosecution when a witness is cross-examined
and contradicted with the leave of the court, by the party
calling him, his evidence cannot, as a matter of law, be
treated as washed off the record altogether. It is for the
Judge of fact to consider in each case whether as a result
of such cross-examination and contradiction the witness
stands thoroughly discredited or can still be believed in
regard to a part of his testimony. If the Judge finds that
in the process, the credit of the witness has not been
completely shaken, he may, after reading and considering the
evidence of the witness, as a whole, with due caution and
care, accept, in the light of the other evidence on the
record that part of his testimony which he finds to be
credit worthy and act upon it. If in a given case, the whole
of the testimony of the witness is impugned, and in the
process the witness stands squarely and totally discredited,
the Judge should, as a matter of prudence, discard his
evidence in toto.
It was in the context of such a case, where as a result
of the cross examination by the Public Prosecutor the
prosecution witness concerned stood discredited altogether,
that this Court in Jagir Singh v. Stale (Delhi Admn.)
(supra), with the aforesaid rule of caution-which is not to
be treated as a rule of law in mind, said that the evidence
of such a witness is to be rejected en block.
(1) E. v. Jehangir Cama 1927 Bom. 501.
(2) Amnnathayar v. Official Assignee 56 Mad. 7.
(3) Nebti v. R. 19 Pat. 369; Shahdev v. Bipti AIR 1969 Pat.
415.
(4) I.L. R. [1954] 4 Raj. 822 (D.B.) . (5) Shyam Kumar v.
E. (1941) Oudh 130.
(6) A. I. R. 1955 NUC (Punj) 5715; (7) AIR 1964 M. P.
In re Kulu Singh.
(8) Rana v. State A.I.R. 1965 Orissa 31.
(9) A. I. R. 1960 Mys. 248. (10) [1951] Ker. L. T. 471.
(11) A. T. R. 1953 J & K 41 (D. B.) (12) [1831] 8 Bing
57, 131 E. R. 321.
(13) [1971] 1 S.C.R. 133.
31
In the light of the above principles, it will be seen
that, in law, a part of the evidence of the Panch witnesses
who were thoroughly cross-examined and contradicted with
their inconsistent police statements by the Public
Prosecutor, could be used or availed of by the prosecution
to support its case. But as a matter of prudence, on the
facts of the case, it would be hazardous to allow the
prosecution to do so. These witnesses contradicted
substantially their previous statements and as a result of
the cross-examination, their credit was substantially, if
not wholly, shaken. The was therefore, not proper for the
courts below to pick out a sentence or two from their
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 20
evidence and use the same to support the evidence of the
trap witnesses.
Nor was the High Court competent to use the statements
of these witnesses recorded by the police during
investigation, for seeking assurance for the prosecution
story. Such use of the police statements is not permissible.
Under the proviso to s. 162 Cr. P.C. such statements can be
used only for the purpose of contradicting a prosecution
witness in the manner indicated in s. 145, Evidence Act, and
for no other purpose. They cannot be used for the purpose of
seeking corroboration or assurance of the testimony of the
witness in court.
Thus the evidence of these interested witnesses of the
trap remains unconfirmed and uncorroborated by any
independent evidence. In the peculiar circumstances of the
case, we think that it would be highly unsafe to convict the
appellant on the basis of their testimony particularly when
P.Ws. 1, 7 and 8 are persons of bad antecedents and had a
possible motive to see the accused removed permanently from
the way of their immoral activity.
It is pertinent to mention here that the evidence of
defence witnesses particularly that of D.Ws. 3 and 5 was not
successfully impeached in cross-examination. The High Court
has not touched their evidence at all. If the defence
evidence were to be believed at the material time, the
appellant was in police uniform patrolling the Railway
platform and he was not wearing the pants from the pocket of
which the tainted currency notes are alleged to have been
recovered. According to the appellant these pants were
hanging on a peg in his room. Therefore the possibility of
the tainted notes having been implanted by Dal Chand who
appears to us a person with wit more and scruples less than
the ordinary, cannot be ruled out.
For the foregoing reasons we would allow this appeal,
accord the benefit of doubt to the appellant and acquit him
of the charge levelled against him.
V.P.S. Appeal allowed.
32