MADRAS
HIGH COURT
HIGH COURT
PALANIA PILLAI AND
ANOTHER VS STATE ON 19 JANUARY, 1990 –
LHR
ANOTHER VS STATE ON 19 JANUARY, 1990 –
LHR
Summarised Judgement (Scroll
for Complete Judgement)
for Complete Judgement)
Introduction:
The appellants Palania
Pillai and K. Rasheed Ahmed were tried in C.C. No. 11 of 1985 on the fire of
the IX Additional Special Judge, Madras, for offences punishable under S.
5(1)(d) read with S. 5(2) of the Prevention of Corruption Act and S. 161,
I.P.C.
Pillai and K. Rasheed Ahmed were tried in C.C. No. 11 of 1985 on the fire of
the IX Additional Special Judge, Madras, for offences punishable under S.
5(1)(d) read with S. 5(2) of the Prevention of Corruption Act and S. 161,
I.P.C.
The second appellant was
charged with the aid of S. 109, I.P.C. Both the appellants were found guilty as
charged and both of them were sentenced to undergo rigorous imprisonment for
one year and to pay a fine of Rs. 1,000/ -; in default to undergo rigorous
imprisonment for three months for the offence under the Prevention of
Corruption Act. No separate sentence was imposed in respect of the offence
under S. 161, I.P.C.
charged with the aid of S. 109, I.P.C. Both the appellants were found guilty as
charged and both of them were sentenced to undergo rigorous imprisonment for
one year and to pay a fine of Rs. 1,000/ -; in default to undergo rigorous
imprisonment for three months for the offence under the Prevention of
Corruption Act. No separate sentence was imposed in respect of the offence
under S. 161, I.P.C.
Facts
of the Case:
of the Case:
The facts leading to the
conviction of the two appellants need narration. The appellants will henceforth
the referred to as A1 and A2 respectively. A1 at the relevant time was the
Junior Engineer, Madras Telephone, Mambalam External. A2 was the Phone
Inspector, Madras Telephones, attached to the same office. P.W. 2, Murugesan, a
resident of West Jones Road, Saidapet, was a finance broker, carrying on his
business under the name and style of “Sivasankar Agencies” Sivakami,
the daughter of P.W. 2, was suffering from several ailments inclusive of skin
disease, throat infection and ulcer in her stomach. In view of the sickness of
his daughter, P.W. 2 wanted to have a casual telephone connection for a period
of 60 days.
conviction of the two appellants need narration. The appellants will henceforth
the referred to as A1 and A2 respectively. A1 at the relevant time was the
Junior Engineer, Madras Telephone, Mambalam External. A2 was the Phone
Inspector, Madras Telephones, attached to the same office. P.W. 2, Murugesan, a
resident of West Jones Road, Saidapet, was a finance broker, carrying on his
business under the name and style of “Sivasankar Agencies” Sivakami,
the daughter of P.W. 2, was suffering from several ailments inclusive of skin
disease, throat infection and ulcer in her stomach. In view of the sickness of
his daughter, P.W. 2 wanted to have a casual telephone connection for a period
of 60 days.
The need for the request of
a casual telephone connection was to facilitate emergency calls being made to
the Doctor as and when necessary. P.W. 2, therefore, sent his application Ex.
P. 2, dated 11-9-1984 to the Deputy Area Manager (South), Madras Telephones.
a casual telephone connection was to facilitate emergency calls being made to
the Doctor as and when necessary. P.W. 2, therefore, sent his application Ex.
P. 2, dated 11-9-1984 to the Deputy Area Manager (South), Madras Telephones.
Observation
& Judgement:
& Judgement:
On facts, I have held that
the defence case of Rs. 300/- having been paid as donation for the Conference
was not entitled to credence. The case law put forth before me by the
appellants does not help them.
the defence case of Rs. 300/- having been paid as donation for the Conference
was not entitled to credence. The case law put forth before me by the
appellants does not help them.
The evidence extracted in
detail by me certainly indicate that the appellants had acted in unison and it
will not be possible to exclude either of them from the charges framed against
them. The judgment of the Trial court convicting the appellants as charged is
perfectly justified, and needs no interference. The sentence imposed is only
the minimum sentence, which has to be unhasitatingly sustained.
detail by me certainly indicate that the appellants had acted in unison and it
will not be possible to exclude either of them from the charges framed against
them. The judgment of the Trial court convicting the appellants as charged is
perfectly justified, and needs no interference. The sentence imposed is only
the minimum sentence, which has to be unhasitatingly sustained.
The appeal fails and it is
dismissed.
dismissed.
—————————————————
Complete
Judgement
Judgement
MADRAS HIGH COURT
PALANIA PILLAI AND
ANOTHER VS STATE ON 19 JANUARY, 1990
ANOTHER VS STATE ON 19 JANUARY, 1990
Palania
Pillai And Another vs State on 19 January, 1990
Pillai And Another vs State on 19 January, 1990
Equivalent
citations: 1991 CriLJ 1563
citations: 1991 CriLJ 1563
Bench:
T Arunachalam
T Arunachalam
JUDGMENT
1. The appellants
Palania Pillai and K. Rasheed Ahmed were tried in C.C. No. 11 of 1985 on the
fire of the IX Additional Special Judge, Madras, for offences punishable under
S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act and S. 161,
I.P.C. The second appellant was charged with the aid of S. 109, I.P.C. Both the
appellants were found guilty as charged and both of them were sentenced to
undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/ -;
in default to undergo rigorous imprisonment for three months for the offence
under the Prevention of Corruption Act. No separate sentence was imposed in
respect of the offence under S. 161, I.P.C.
Palania Pillai and K. Rasheed Ahmed were tried in C.C. No. 11 of 1985 on the
fire of the IX Additional Special Judge, Madras, for offences punishable under
S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act and S. 161,
I.P.C. The second appellant was charged with the aid of S. 109, I.P.C. Both the
appellants were found guilty as charged and both of them were sentenced to
undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/ -;
in default to undergo rigorous imprisonment for three months for the offence
under the Prevention of Corruption Act. No separate sentence was imposed in
respect of the offence under S. 161, I.P.C.
2. The facts leading to
the conviction of the two appellants need narration. The appellants will
henceforth the referred to as A1 and A2 respectively. A1 at the relevant time
was the Junior Engineer, Madras Telephone, Mambalam External. A2 was the Phone
Inspector, Madras Telephones, attached to the same office. P.W. 2, Murugesan, a
resident of West Jones Road, Saidapet, was a finance broker, carrying on his
business under the name and style of “Sivasankar Agencies” Sivakami,
the daughter of P.W. 2, was suffering from several ailments inclusive of skin
disease, throat infection and ulcer in her stomach. In view of the sickness of
his daughter, P.W. 2 wanted to have a casual telephone connection for a period
of 60 days. The need for the request of a casual telephone connection was to
facilitate emergency calls being made to the Doctor as and when necessary. P.W.
2, therefore, sent his application Ex. P. 2, dated 11-9-1984 to the Deputy Area
Manager (South), Madras Telephones. Along with Ex. P. 2, P.W. 2 enclosed a
medical certificate Ex. P. 3 – issued by the Skin Specialist, affirming the
need for frequent medical advice and medical care either in person or over the
telephone. P.W. 2 went over to the Office of the Deputy Area Manager (South),
Madras Telephones, on 15-9-1984. He was then directed to deposit a sum of Rs.
920/ within 15 days. A demand notice was also issued to him. On 21-9-1984 P.W.
2 deposited Rs. 920/ in cash, as advised. Even after such deposit, the casual
telephone was not installed. Hence, on 29-9-1984 P.W. 2 got in touch with the
Office of the Deputy Manager (South) over the Telephone. He was then informed
that the casual telephone connection had been sanctioned even on 29-9-1984 and
the telephone number allotted to him was 446001. He was also directed to got in
touch with the Assistant Engineer, Telephone Exchange, Mambalam, for further
details. Thereafter at or about 12 noon on 29-9-1984 P.W. 2 contacted the
Office of the Assistant Engineer, Telephone Exchange, Mambalam, over the telephone.
His call was answered by P.W. 6 V. J. Niyasudeen, the Assistant Engineer, P.W.
6 informed P.W. 2 that no communication had been received from the Office of
the Deputy Area Manager. P.W. 2 again got in touch with the Office of the
Deputy Area Manager (South) and learnt that even on 22-9-1984 a communication
by registered post as well as by telex had been forwarded to P.W. 6. Again P.W.
2 contacted P.W. 6 over the telephone and furnished this information. P.W. 6
promised to look into the records and in case an advice note had been received,
he would direct further action. P.W. 6 noted in Ex. P. 13, a scribbling pad,
about the casual connection enquiry, made by P.W. 2 on 29-9-1984. P.W. 6, on
verification, found that his Office had received the advice note Ex. P. 14 from
the Deputy Area Manager (South) even on 27-9-1984 for providing a casual
telephone connection immediately for 60 days from the date of installation, to
P.W. 2. P.W. 6 thereafter contacted A1, the Junior Engineer, at or about 2 p.m.
over the telephone and directed him to provide a casual telephone connection
immediately at the residence of P.W. 2, in view of the sanction accorded by the
Deputy Area Manager.
the conviction of the two appellants need narration. The appellants will
henceforth the referred to as A1 and A2 respectively. A1 at the relevant time
was the Junior Engineer, Madras Telephone, Mambalam External. A2 was the Phone
Inspector, Madras Telephones, attached to the same office. P.W. 2, Murugesan, a
resident of West Jones Road, Saidapet, was a finance broker, carrying on his
business under the name and style of “Sivasankar Agencies” Sivakami,
the daughter of P.W. 2, was suffering from several ailments inclusive of skin
disease, throat infection and ulcer in her stomach. In view of the sickness of
his daughter, P.W. 2 wanted to have a casual telephone connection for a period
of 60 days. The need for the request of a casual telephone connection was to
facilitate emergency calls being made to the Doctor as and when necessary. P.W.
2, therefore, sent his application Ex. P. 2, dated 11-9-1984 to the Deputy Area
Manager (South), Madras Telephones. Along with Ex. P. 2, P.W. 2 enclosed a
medical certificate Ex. P. 3 – issued by the Skin Specialist, affirming the
need for frequent medical advice and medical care either in person or over the
telephone. P.W. 2 went over to the Office of the Deputy Area Manager (South),
Madras Telephones, on 15-9-1984. He was then directed to deposit a sum of Rs.
920/ within 15 days. A demand notice was also issued to him. On 21-9-1984 P.W.
2 deposited Rs. 920/ in cash, as advised. Even after such deposit, the casual
telephone was not installed. Hence, on 29-9-1984 P.W. 2 got in touch with the
Office of the Deputy Manager (South) over the Telephone. He was then informed
that the casual telephone connection had been sanctioned even on 29-9-1984 and
the telephone number allotted to him was 446001. He was also directed to got in
touch with the Assistant Engineer, Telephone Exchange, Mambalam, for further
details. Thereafter at or about 12 noon on 29-9-1984 P.W. 2 contacted the
Office of the Assistant Engineer, Telephone Exchange, Mambalam, over the telephone.
His call was answered by P.W. 6 V. J. Niyasudeen, the Assistant Engineer, P.W.
6 informed P.W. 2 that no communication had been received from the Office of
the Deputy Area Manager. P.W. 2 again got in touch with the Office of the
Deputy Area Manager (South) and learnt that even on 22-9-1984 a communication
by registered post as well as by telex had been forwarded to P.W. 6. Again P.W.
2 contacted P.W. 6 over the telephone and furnished this information. P.W. 6
promised to look into the records and in case an advice note had been received,
he would direct further action. P.W. 6 noted in Ex. P. 13, a scribbling pad,
about the casual connection enquiry, made by P.W. 2 on 29-9-1984. P.W. 6, on
verification, found that his Office had received the advice note Ex. P. 14 from
the Deputy Area Manager (South) even on 27-9-1984 for providing a casual
telephone connection immediately for 60 days from the date of installation, to
P.W. 2. P.W. 6 thereafter contacted A1, the Junior Engineer, at or about 2 p.m.
over the telephone and directed him to provide a casual telephone connection
immediately at the residence of P.W. 2, in view of the sanction accorded by the
Deputy Area Manager.
3. It is the further
case of P.W. 2 that on 29-9-1984 at or about 4 p.m., A2 contacted him at his
residence and introduced himself as the Telephone Inspector. He told P.W. 2
that a telephone connection had been sanctioned to him and his visit was to
inspect the place and fix the location of the telephone to be installed. A2
also told P.W. 2 that A1 had sent him and that both A1 and A2 were the main
persons responsible for providing a telephone connection at the residence of
P.W. 2. A2 also informed P.W. 2 that there were complications in immediately
providing a telephone connection which could be overcome, if P.W. 2 agreed to
pay Rs. 300/- as bribe. In the event of the payment of the bribe amount
intended for both the accused, it was possible to install the telephone even on
Monday (1-10-1984). In the event of non-payment of bribe as demanded, there was
bound to be delay installing the casual telephone connection. A2 also informed
P.W. 2 that both he and A1 intended to meet P.W. 2 at his residence at 12 noon
on 1-10-1984 when the telephone connection would be given and that P.W. 2
should keep Rs. 300/- ready for payment as demanded. The evidence of P.W. 2
does not indicate his re-action to the deemed made by A2 and his part of the
conversation with the latter.
case of P.W. 2 that on 29-9-1984 at or about 4 p.m., A2 contacted him at his
residence and introduced himself as the Telephone Inspector. He told P.W. 2
that a telephone connection had been sanctioned to him and his visit was to
inspect the place and fix the location of the telephone to be installed. A2
also told P.W. 2 that A1 had sent him and that both A1 and A2 were the main
persons responsible for providing a telephone connection at the residence of
P.W. 2. A2 also informed P.W. 2 that there were complications in immediately
providing a telephone connection which could be overcome, if P.W. 2 agreed to
pay Rs. 300/- as bribe. In the event of the payment of the bribe amount
intended for both the accused, it was possible to install the telephone even on
Monday (1-10-1984). In the event of non-payment of bribe as demanded, there was
bound to be delay installing the casual telephone connection. A2 also informed
P.W. 2 that both he and A1 intended to meet P.W. 2 at his residence at 12 noon
on 1-10-1984 when the telephone connection would be given and that P.W. 2
should keep Rs. 300/- ready for payment as demanded. The evidence of P.W. 2
does not indicate his re-action to the deemed made by A2 and his part of the
conversation with the latter.
4. P.W. 2 was unwilling
to pay any bribe to the accused as demanded and, therefore, at 9.15 a.m. on
1-10-1984 he went to the C.B.I. Office and met the Superintendent of Police
(not examined). The Superintendent of Police directed P.W. 5 Y. Chelladurai,
Inspector of Police S.P.E., C.B.I., Madras, to take necessary action forthwith.
Ex. P. 4 the complaint preferred by P.W. 2 to the Superintendent of Police
C.B.I. on 1-10-1984 bears the endorsement of the Superintendent, directing P.W.
5 to register a case and take necessary action. P.W. 5 registered Crime No. 60
of 1984 on Ex. P. 4 for an offence under S. 161, I.P.C. and prepared the
printed first information report Ex. P. 12. P.W. 5 questioned P.W. 2 with
regard to Ex. P. 4, the complaint preferred by him. On being questioned by P.W.
5, P.W. 2 agreed to co-operate with the investigation. P.W. 5 directed P.W. 2
to get Rs. 300/- and come back to his office within 20 or 25 minutes. After
P.W. 2 left, P.W. 5 made arrangement to get at P.W. 3, a lower Division Clerk
in the Office of the Director of Inspection, situated at Shastri Bhavan and Raman
(not examined) a cashier in the Office of the Joint Director of Field
Publicity, situated in Shastri Bhavan. P.W. 5 contacted his informants over the
telephone and enquired about the antecedents of the accused. At or about 10
a.m. P.W. 3 and Raman met P.W. 5 at his Office. Sometime later P.W. 2 also
joined them. P.W. 5 introduced P.W. 2 to P.W. 3 and Raman. He directed P.W. 2
to narrate the details of his complaint to both the witnesses, which was
accordingly done by P.W. 2. When questioned by P.W. 5, P.W. 2, stated that he
had brought Rs. 300/- and handed it over to P.W. 5. The sum of Rs. 300/- was in
the denomination of two hundred rupee notes, one fifty rupee note, one twenty
rupee note and three ten rupee notes. P.W. 5 noted the number of the currency, which
are M.Os. 1 to 7. P.W. 5 smeared phenolpthelin powder on both sides of the
currency notes and gave them to Raman (not examined) and asked him to count the
notes. P.W. 5 asked Raman to dip his fingers in the Sodium Carbonate solution
kept ready in a glass tumbler. When Raman did so, the liquid which was
colourless, turned pink. P.W. 5 explained the significance of the phenolpthelin
test to P.Ws. 2, 3 and Raman. Later P.W. 5 searched P.W. 2 and found in his
possession a sum of Rs. three, a handkerchief and a bunch of keys. Thereafter
M.Os. 1 to 7 treated with phenolpthelin powder, were placed inside the shirt
pocket of P.W. 2, with the direction not to touch the currency notes till a
demand was made by the accused. P.W. 2 was also directed to give a signal by
wiping his face with a kerchief in the event of the acceptance of the money by
the accused. P.W. 3 was directed to accompany P.W. 2 and observe all the
happenings. A mahazar Ex. P. 5 was prepared incorporating all these details and
the number of the currency notes M.Os. 1 to 7. P.W. 3 and Raman attested Ex. P.
5.
to pay any bribe to the accused as demanded and, therefore, at 9.15 a.m. on
1-10-1984 he went to the C.B.I. Office and met the Superintendent of Police
(not examined). The Superintendent of Police directed P.W. 5 Y. Chelladurai,
Inspector of Police S.P.E., C.B.I., Madras, to take necessary action forthwith.
Ex. P. 4 the complaint preferred by P.W. 2 to the Superintendent of Police
C.B.I. on 1-10-1984 bears the endorsement of the Superintendent, directing P.W.
5 to register a case and take necessary action. P.W. 5 registered Crime No. 60
of 1984 on Ex. P. 4 for an offence under S. 161, I.P.C. and prepared the
printed first information report Ex. P. 12. P.W. 5 questioned P.W. 2 with
regard to Ex. P. 4, the complaint preferred by him. On being questioned by P.W.
5, P.W. 2 agreed to co-operate with the investigation. P.W. 5 directed P.W. 2
to get Rs. 300/- and come back to his office within 20 or 25 minutes. After
P.W. 2 left, P.W. 5 made arrangement to get at P.W. 3, a lower Division Clerk
in the Office of the Director of Inspection, situated at Shastri Bhavan and Raman
(not examined) a cashier in the Office of the Joint Director of Field
Publicity, situated in Shastri Bhavan. P.W. 5 contacted his informants over the
telephone and enquired about the antecedents of the accused. At or about 10
a.m. P.W. 3 and Raman met P.W. 5 at his Office. Sometime later P.W. 2 also
joined them. P.W. 5 introduced P.W. 2 to P.W. 3 and Raman. He directed P.W. 2
to narrate the details of his complaint to both the witnesses, which was
accordingly done by P.W. 2. When questioned by P.W. 5, P.W. 2, stated that he
had brought Rs. 300/- and handed it over to P.W. 5. The sum of Rs. 300/- was in
the denomination of two hundred rupee notes, one fifty rupee note, one twenty
rupee note and three ten rupee notes. P.W. 5 noted the number of the currency, which
are M.Os. 1 to 7. P.W. 5 smeared phenolpthelin powder on both sides of the
currency notes and gave them to Raman (not examined) and asked him to count the
notes. P.W. 5 asked Raman to dip his fingers in the Sodium Carbonate solution
kept ready in a glass tumbler. When Raman did so, the liquid which was
colourless, turned pink. P.W. 5 explained the significance of the phenolpthelin
test to P.Ws. 2, 3 and Raman. Later P.W. 5 searched P.W. 2 and found in his
possession a sum of Rs. three, a handkerchief and a bunch of keys. Thereafter
M.Os. 1 to 7 treated with phenolpthelin powder, were placed inside the shirt
pocket of P.W. 2, with the direction not to touch the currency notes till a
demand was made by the accused. P.W. 2 was also directed to give a signal by
wiping his face with a kerchief in the event of the acceptance of the money by
the accused. P.W. 3 was directed to accompany P.W. 2 and observe all the
happenings. A mahazar Ex. P. 5 was prepared incorporating all these details and
the number of the currency notes M.Os. 1 to 7. P.W. 3 and Raman attested Ex. P.
5.
5. On the directions of
P.W. 5, P.Ws. 2 and 3 went in advance on motor cycle to the house of the
former. A little later P.W. 5 along with other Officers and Raman went over to
the house of P.W. 2 in a police van. When P.Ws. 2 and 3 reached the residence
of P.W. 2 at or about 11.30 a.m. they found 4 or 5 lineman already engaged in
the work of providing a telephone connection. P.W. 5 and others hid themselves
at some distance. By about 12 noon the linemen had finished their job. At or
about that time both the accused reached the house of P.W. 2 and met the
latter, who was seated in the main hall in the company of P.W. 3. A2 introduced
A1 to P. W. 2. A1 went over to the toilet and A2 started reading the newspaper.
A little later A1 returned to the hall. A1 had a handkerchief in his hand. A1
asked P.W. 2 to give the money. P.W. 2 asked A1 “How much money ?” A1
replied that P.W. 1 could pay as told by A2. P.W. 2 told A1 that A2 had asked
for Rs. 300/- and that A1 must accept Rs. 200/-. However, A1 replied that P.W.
3 must pay the amount specified by A2, P.W. 2 then removed Rs. 300/- from his
shirt pocket, and handed over to A1. A2 asked A1 to count the currency, which
was promptly done by A1. After counting, A1 kept the currency notes in his
right hand along with kerchief, M.O.B. P.W. 2 after passing off the currency
notes to A1, gave the pre-arranged signal by wiping his face with his kerchief.
Immediately P.W. 5 and his party entered the hall. P.W. 5 introduced himself as
well as Raman to both the accused. He questioned the first accused as to
whether he had received “the money”. On hearing this question, A1
appeared to shiver out of panic. P.W. 2 was sent out of the hall. P.W. 5 then
prepared Sodium Carbonate solution and directed A-1 to dip his right hand
fingers in it. A-1 on doing so, the colourless solution turned pink. The change
in colouration was pointed out to the witnesses and the accused and the liquid
was poured into two clean glass bottles which were closed, sealed and stamped.
The signatures of the witnesses were also taken on the bottles. M. Os. 9 and 10
are those two bottles. P.W. 5 again prepared a fresh solution of Sodium
Carborate and directed A-1 to dip his left hand fingers. On doing so, the
liquid became pink. M.Os. 11 and 12 are the two bottles which contained the
solution which turned pink on the second occasion.
P.W. 5, P.Ws. 2 and 3 went in advance on motor cycle to the house of the
former. A little later P.W. 5 along with other Officers and Raman went over to
the house of P.W. 2 in a police van. When P.Ws. 2 and 3 reached the residence
of P.W. 2 at or about 11.30 a.m. they found 4 or 5 lineman already engaged in
the work of providing a telephone connection. P.W. 5 and others hid themselves
at some distance. By about 12 noon the linemen had finished their job. At or
about that time both the accused reached the house of P.W. 2 and met the
latter, who was seated in the main hall in the company of P.W. 3. A2 introduced
A1 to P. W. 2. A1 went over to the toilet and A2 started reading the newspaper.
A little later A1 returned to the hall. A1 had a handkerchief in his hand. A1
asked P.W. 2 to give the money. P.W. 2 asked A1 “How much money ?” A1
replied that P.W. 1 could pay as told by A2. P.W. 2 told A1 that A2 had asked
for Rs. 300/- and that A1 must accept Rs. 200/-. However, A1 replied that P.W.
3 must pay the amount specified by A2, P.W. 2 then removed Rs. 300/- from his
shirt pocket, and handed over to A1. A2 asked A1 to count the currency, which
was promptly done by A1. After counting, A1 kept the currency notes in his
right hand along with kerchief, M.O.B. P.W. 2 after passing off the currency
notes to A1, gave the pre-arranged signal by wiping his face with his kerchief.
Immediately P.W. 5 and his party entered the hall. P.W. 5 introduced himself as
well as Raman to both the accused. He questioned the first accused as to
whether he had received “the money”. On hearing this question, A1
appeared to shiver out of panic. P.W. 2 was sent out of the hall. P.W. 5 then
prepared Sodium Carbonate solution and directed A-1 to dip his right hand
fingers in it. A-1 on doing so, the colourless solution turned pink. The change
in colouration was pointed out to the witnesses and the accused and the liquid
was poured into two clean glass bottles which were closed, sealed and stamped.
The signatures of the witnesses were also taken on the bottles. M. Os. 9 and 10
are those two bottles. P.W. 5 again prepared a fresh solution of Sodium
Carborate and directed A-1 to dip his left hand fingers. On doing so, the
liquid became pink. M.Os. 11 and 12 are the two bottles which contained the
solution which turned pink on the second occasion.
6. P.W. 5 asked A-1 to
produce the money to which he replied that the money was on the table. P.W. 5
took the money from the table, verified the numbers of the currency and found
them to tally with the numbers already noted in Ex. P. 5. P.W. 5 seized M.Os. 1
to 7. For a third time Sodium Carbonate solution was prepared in which M.O. 8
the kercheef of A-1 was dipped. The solution turned pink and the liquid was
poured into two clean bottles, as done earlier, and were closed, scaled and
stamped. These bottles are M.Os. 13 and 14. Exs. P. 7 and P. 8 contain the
specimen impression of the seal used, in which the signatures of the witnesses
were also obtained.
produce the money to which he replied that the money was on the table. P.W. 5
took the money from the table, verified the numbers of the currency and found
them to tally with the numbers already noted in Ex. P. 5. P.W. 5 seized M.Os. 1
to 7. For a third time Sodium Carbonate solution was prepared in which M.O. 8
the kercheef of A-1 was dipped. The solution turned pink and the liquid was
poured into two clean bottles, as done earlier, and were closed, scaled and
stamped. These bottles are M.Os. 13 and 14. Exs. P. 7 and P. 8 contain the
specimen impression of the seal used, in which the signatures of the witnesses
were also obtained.
7. Later A-1 was
searched. He had in his possession a railway season ticket, a bunch of keys and
Rs. 265.45 in cash. These articles were returned to A-1. A-2 was then searched.
He had in his possession an identification card a key bunch, a money purse, a
comb and Rs. 232/- in cash, which were all returned to him. Two diaries along
with some papers kept in the cycles of the accused were recovered by P.W. 5. He
also seized Ex. P. 6 from D.W. 3. The signatures of the witnesses were obtained
in Ex. P. 6, which is the slip relating to telephone No. 446001 allotted to
P.W. 2. P.W. 2 was later directed to come inside the hall. He was searched and
sent away. Ex. P. 9 prepared at the residence of P.W. 2 incorporates all that
had happened at the residence of P.W. 2. P.W. 3, Ramu and D.W. 3 have attested
Ex. P. 9. Copies of P. 9 were given to both the accused and their
acknowledgments were obtained. P.W. 5 contacted P.W. 6, the Assistant Engineer
and directed him to keep certain documents in safe custody. The House search of
both the accused did not yield anything incriminating. Later the accused were
left in their respective houses. P.W. 3 K. G. Ramachandran, who accompanied
P.W. 2 and who is an attestor to Exs. P. 5 and P. 9 has deposed about all the
events in detail. P.W. 7 Rajee Vekshan, Inspector of Police, S.P.E., C.B.I.
took up investigation on 17-10-1984. He scrutinised the documents and on
19-10-1984 gave a requisition Ex. P. 15 to the Principal Sessions Judge, Madras
for sending M.Os. 9, 11 and 13 for chemical analysis. On 24-10-1984 he visited
the house of P.W. 2 and examined him. He inspected the spot where the trap was
laid. On 16-11-1984 he examined P.W. 5 and another. He questioned A. 1 on
29-12-1984. On 31-12-1984 he examined P.W. 3 and another and questioned A-2. On
2-1-1985 he examined P.W. 6 and collected from him certain documents including
Exs. P. 13 and P. 14. He also obtained from P.W. 6 Ex. P. 16 the whereabouts
register with reference to the entries made on 1-10-1984. On 3-1-1985 P.W. 7
examined the persons mentioned in Ex. P. 16 and learnt that they did not attend
to that particular work. P.W. 7 scrutinised Ex. P. 6 and found that Venkatesan
did not attend to the work mentioned in the slip. He also examined D.W. 3. As
requested by P.W. 7, M.Os. 9, 11 and 13 were sent for chemical analysis. Ex. P.
11 the report of the Chemical Examiner shows that the liquids in these bottles
were phenolpthelin and sodium carbonate. P.W. 1 the Area Manager (South) Madras
Telephones who is competent to remove the accused from service, on receiving a
report from the Superintendent of Police, C.B.I., Madras after perusing the
relevant documents and satisfying himself accorded sanction to prosecute both
the accused. Ex. P. 1 is the sanction order which has been proved by the Area
Manager himself, who was examined as P.W. 1. P.W. 4 is the Scientific
Assistant, Grade I, Attached to the Forensic Science Department, who has
deposed about Ex. P. 11, the report Analyst, having been forwarded to the
Special Court.
searched. He had in his possession a railway season ticket, a bunch of keys and
Rs. 265.45 in cash. These articles were returned to A-1. A-2 was then searched.
He had in his possession an identification card a key bunch, a money purse, a
comb and Rs. 232/- in cash, which were all returned to him. Two diaries along
with some papers kept in the cycles of the accused were recovered by P.W. 5. He
also seized Ex. P. 6 from D.W. 3. The signatures of the witnesses were obtained
in Ex. P. 6, which is the slip relating to telephone No. 446001 allotted to
P.W. 2. P.W. 2 was later directed to come inside the hall. He was searched and
sent away. Ex. P. 9 prepared at the residence of P.W. 2 incorporates all that
had happened at the residence of P.W. 2. P.W. 3, Ramu and D.W. 3 have attested
Ex. P. 9. Copies of P. 9 were given to both the accused and their
acknowledgments were obtained. P.W. 5 contacted P.W. 6, the Assistant Engineer
and directed him to keep certain documents in safe custody. The House search of
both the accused did not yield anything incriminating. Later the accused were
left in their respective houses. P.W. 3 K. G. Ramachandran, who accompanied
P.W. 2 and who is an attestor to Exs. P. 5 and P. 9 has deposed about all the
events in detail. P.W. 7 Rajee Vekshan, Inspector of Police, S.P.E., C.B.I.
took up investigation on 17-10-1984. He scrutinised the documents and on
19-10-1984 gave a requisition Ex. P. 15 to the Principal Sessions Judge, Madras
for sending M.Os. 9, 11 and 13 for chemical analysis. On 24-10-1984 he visited
the house of P.W. 2 and examined him. He inspected the spot where the trap was
laid. On 16-11-1984 he examined P.W. 5 and another. He questioned A. 1 on
29-12-1984. On 31-12-1984 he examined P.W. 3 and another and questioned A-2. On
2-1-1985 he examined P.W. 6 and collected from him certain documents including
Exs. P. 13 and P. 14. He also obtained from P.W. 6 Ex. P. 16 the whereabouts
register with reference to the entries made on 1-10-1984. On 3-1-1985 P.W. 7
examined the persons mentioned in Ex. P. 16 and learnt that they did not attend
to that particular work. P.W. 7 scrutinised Ex. P. 6 and found that Venkatesan
did not attend to the work mentioned in the slip. He also examined D.W. 3. As
requested by P.W. 7, M.Os. 9, 11 and 13 were sent for chemical analysis. Ex. P.
11 the report of the Chemical Examiner shows that the liquids in these bottles
were phenolpthelin and sodium carbonate. P.W. 1 the Area Manager (South) Madras
Telephones who is competent to remove the accused from service, on receiving a
report from the Superintendent of Police, C.B.I., Madras after perusing the
relevant documents and satisfying himself accorded sanction to prosecute both
the accused. Ex. P. 1 is the sanction order which has been proved by the Area
Manager himself, who was examined as P.W. 1. P.W. 4 is the Scientific
Assistant, Grade I, Attached to the Forensic Science Department, who has
deposed about Ex. P. 11, the report Analyst, having been forwarded to the
Special Court.
8. After completing
investigation P.W. 7 laid the charge sheet against the accused before the
Special Court on 29-3-1985.
investigation P.W. 7 laid the charge sheet against the accused before the
Special Court on 29-3-1985.
9. When the accused
were questioned under Section 313 of the Criminal Procedure Code by the trial
court, to afford them an opportunity to explain the circumstances appearing
against them in evidence, they denied a major portion of the prosecution
version. They stated that even on 29-9-1984 at their officer P.W. 2 agreed to
give Rs. 300/- as donation to the Union Conference and in pursuance thereof on
1-10-1984, P.W. 2 himself gave the amount as donation, at his residence. They
stated that they did not demand any bribe and they did not accept any money as
bribe. A-1 also filed certain documents to be read as part and parcel of his
statement.
were questioned under Section 313 of the Criminal Procedure Code by the trial
court, to afford them an opportunity to explain the circumstances appearing
against them in evidence, they denied a major portion of the prosecution
version. They stated that even on 29-9-1984 at their officer P.W. 2 agreed to
give Rs. 300/- as donation to the Union Conference and in pursuance thereof on
1-10-1984, P.W. 2 himself gave the amount as donation, at his residence. They
stated that they did not demand any bribe and they did not accept any money as
bribe. A-1 also filed certain documents to be read as part and parcel of his
statement.
10. The accused
examined D.Ws. 1 to 3 to substantiate their version D.W. 1 Sreetharan is the
Junior Engineer in the Mambalm External Unit No. 1. He has deposed about the
maintenance of the Tell-Tala sheet Ex.D. 1 and entries made therein referable
to the movements of A-2 on 29-9-1984.
examined D.Ws. 1 to 3 to substantiate their version D.W. 1 Sreetharan is the
Junior Engineer in the Mambalm External Unit No. 1. He has deposed about the
maintenance of the Tell-Tala sheet Ex.D. 1 and entries made therein referable
to the movements of A-2 on 29-9-1984.
11. D.W. 2 Ranganathan,
is a wireman attached to the External Unit No. 1. It is his evidence that at or
about 9 a.m. on 29-9-1984 P.W. 2 came to his office and was seen in conversion
with A. 1 on his pointing out the latter P.W. 2 asked A. 1 if the telephone
connection could be given immediately, to which A. 1 replied that if orders had
been received, connection could be given forthwith. P.W. 2 insisted, that
telephone connection should be given, on the same day. At that stage A. 2 who
was near A. 1 asked P.W. 2 to donate to the Conference. P.W. 2 stated that he
did not have funds them and accused to pay Rs. 300/- as donation, when A. 2
would go over to his house, to give telephone connection. Thereafter P.W. 2
took three donation receipts of Rs. 100/- denomination each and signed in the
counter-foils. The counter-foils containing the signatures of P.W. 2 have been
marked as D. 3 to D. 5.
is a wireman attached to the External Unit No. 1. It is his evidence that at or
about 9 a.m. on 29-9-1984 P.W. 2 came to his office and was seen in conversion
with A. 1 on his pointing out the latter P.W. 2 asked A. 1 if the telephone
connection could be given immediately, to which A. 1 replied that if orders had
been received, connection could be given forthwith. P.W. 2 insisted, that
telephone connection should be given, on the same day. At that stage A. 2 who
was near A. 1 asked P.W. 2 to donate to the Conference. P.W. 2 stated that he
did not have funds them and accused to pay Rs. 300/- as donation, when A. 2
would go over to his house, to give telephone connection. Thereafter P.W. 2
took three donation receipts of Rs. 100/- denomination each and signed in the
counter-foils. The counter-foils containing the signatures of P.W. 2 have been
marked as D. 3 to D. 5.
12. D.W. 5 Masilamani,
a Mazdoor in Mambalam External Unit I, went to the house of P.W. 2 on the
morning of 1-10-1984 to do the necessary, work to facilitate causal telephone
connection being given, on the directions of A-1. He has also deposed about A-1
having instructed him to collect from P.W. 2 the donation amount promised, in
the event of the latter giving It to him. He also speaks about both the accused
meeting P.W. 2 at his residence at 12. Noon and P.W. 2 handing over money to
A-1.
a Mazdoor in Mambalam External Unit I, went to the house of P.W. 2 on the
morning of 1-10-1984 to do the necessary, work to facilitate causal telephone
connection being given, on the directions of A-1. He has also deposed about A-1
having instructed him to collect from P.W. 2 the donation amount promised, in
the event of the latter giving It to him. He also speaks about both the accused
meeting P.W. 2 at his residence at 12. Noon and P.W. 2 handing over money to
A-1.
13. The trial court, on
an appreciation of the oral and documentary evidence placed before it by the
prosecution and the defence, accepted the prosecution case, rejected the
defence version and convicted and sentenced the appellants as stated earlier.
an appreciation of the oral and documentary evidence placed before it by the
prosecution and the defence, accepted the prosecution case, rejected the
defence version and convicted and sentenced the appellants as stated earlier.
14. The point for
consideration in this appeal is whether the prosecution had established its
initial onus of the accused having received the bribe money, and if it be so,
whether the defence had by preponderance of probability, displaced the
presumption under Section 4(1) of the Act, so as to cast a doubt on the truth
of the prosecution case and the probability of Rs. 300/- having been paid
voluntarily by P.W. 2 as a donation for the Union Conference ? In effect it has
to be considered, whether the guilt of both the appellants had been established
beyond doubt, on the totality of the evidence placed before Court ?
consideration in this appeal is whether the prosecution had established its
initial onus of the accused having received the bribe money, and if it be so,
whether the defence had by preponderance of probability, displaced the
presumption under Section 4(1) of the Act, so as to cast a doubt on the truth
of the prosecution case and the probability of Rs. 300/- having been paid
voluntarily by P.W. 2 as a donation for the Union Conference ? In effect it has
to be considered, whether the guilt of both the appellants had been established
beyond doubt, on the totality of the evidence placed before Court ?
15. Sri N. T.
Vanamamalai the learned Senior counsel appearing for the first appellant (A. 1)
and Sri N., Natarajan, the learned senior counsel appearing for the second
appellant (A. 2) contended that the demand alleged to have been made by A. 1
had not been established beyond doubt. Ex.D. 1 the Tell-tale Sheet, taken along
with Ex. D. 2 would be sufficient to erase the alleged story of demand on the
evening of 29-9-1984. They vehemontly urged that Exs. D. 3 to D. 5, the
counterfoils of the donation tickets allegedly containing the signatures of
P.W. 2 should not have been rejected by the trial Judge, especially when D.W. 2
who was present when P.W. 2 obtained the donation tickets had deposed about his
having seen P.W. 2, signing in those donation tickets – They would further
contend that once the defence was able to demonstrate before the Court that the
admitted signatures of P.W. 2 found in the complaint Ex. P. 4 and other
prosecution records prima facie tallied with Exs. D. 3 to D. 5 the onus was on
the prosecution to disprove that possibility by examining a Handwriting Expert.
Mr. Natarajan submitted that there was no abuse of authority and in the normal
way in an expeditious pattern, telephone connection was given to P.W. 2, which
perfectly synchronised with the defence placed before the Court. He would also
point out that P.W. 3 had not deposed about the demand made by A. 2 on
1-10-1984 and this coupled with non-recovery of any money from A-2 would be
sufficient to exculpate him from the crime.
Vanamamalai the learned Senior counsel appearing for the first appellant (A. 1)
and Sri N., Natarajan, the learned senior counsel appearing for the second
appellant (A. 2) contended that the demand alleged to have been made by A. 1
had not been established beyond doubt. Ex.D. 1 the Tell-tale Sheet, taken along
with Ex. D. 2 would be sufficient to erase the alleged story of demand on the
evening of 29-9-1984. They vehemontly urged that Exs. D. 3 to D. 5, the
counterfoils of the donation tickets allegedly containing the signatures of
P.W. 2 should not have been rejected by the trial Judge, especially when D.W. 2
who was present when P.W. 2 obtained the donation tickets had deposed about his
having seen P.W. 2, signing in those donation tickets – They would further
contend that once the defence was able to demonstrate before the Court that the
admitted signatures of P.W. 2 found in the complaint Ex. P. 4 and other
prosecution records prima facie tallied with Exs. D. 3 to D. 5 the onus was on
the prosecution to disprove that possibility by examining a Handwriting Expert.
Mr. Natarajan submitted that there was no abuse of authority and in the normal
way in an expeditious pattern, telephone connection was given to P.W. 2, which
perfectly synchronised with the defence placed before the Court. He would also
point out that P.W. 3 had not deposed about the demand made by A. 2 on
1-10-1984 and this coupled with non-recovery of any money from A-2 would be
sufficient to exculpate him from the crime.
16. Mr. N. T.
Vanamamalai, submitted that the installation of the telephone was done and the
work completed even before the money was paid and the last act of giving
connection alone remained and for all practical purposes, the work had reached
a point beyond recall and, therefore, the ingredients of the offence were not
attracted. He further submitted that the alleged demand had not been
corroborated and P.W. 2 must be assumed to have a grudge, since the linemen had
not come to his house till he left for the office of the Superintendent of
Police, Vigilance and Anti-corruption, on the morning of 1-10-1984. D.Ws. 1 to
3 are Government servants and their evidence cannot be discarded merely because
they worked in the same Department, as the appellants. In conclusion, he
submitted that both the appellants, on the totality of the evidence, were
entitled to the benefit of doubt.
Vanamamalai, submitted that the installation of the telephone was done and the
work completed even before the money was paid and the last act of giving
connection alone remained and for all practical purposes, the work had reached
a point beyond recall and, therefore, the ingredients of the offence were not
attracted. He further submitted that the alleged demand had not been
corroborated and P.W. 2 must be assumed to have a grudge, since the linemen had
not come to his house till he left for the office of the Superintendent of
Police, Vigilance and Anti-corruption, on the morning of 1-10-1984. D.Ws. 1 to
3 are Government servants and their evidence cannot be discarded merely because
they worked in the same Department, as the appellants. In conclusion, he
submitted that both the appellants, on the totality of the evidence, were
entitled to the benefit of doubt.
17. Per contra, Thiru
B. Sriramulu, the learned counsel appearing for the respondent, contended that
P.W. 2 was an utter stranger to the appellants and he had no animosity
whatsoever against them. According to him, the appellants had taken advantage
of the situation in which P.W. 2 was placed requiring an urgent telephone
connection. The contents of the first information report Ex. P. 4 fully
corroborated the present version of P.W. 2. The appellants having gone to the
house of P.W. 2 at or about 12 Noon on 1-10-1984, was a powerful circumstance,
which strongly corroborated the evidence of P.W. 2 since in Ex.P. 4, the
earliest document. P.W. 2 has stated that A. 2 had informed him that he in the
company of A. 1 would go over to his residence at or about 12 Noon on Monday
(1-10-1984) to receive the demanded amount and simultaneously give the phone
connection. He would submit that S. 4(1) of the Act contemplated a legal
presumption contra distinguished from S. 114 of the Indian Evidence Act, which
related to factual pre-sumption. He also contended that if, in fact, P.W. 2 had
agreed to buy the donation tickets even on the morning of 29-9-1984 as alleged
by the accused, there was no need for P.S. 2 to get intouch with P.W. 6, the
Assistant Engineer, after 12 Noon on 29-9-1984 and P.W. 6 informing A. 1 at or
about 2 p.m. about the allotment of a casual telephone connection to P.W. 2,
which had to be executed. He pleaded for rejection of Exs. D. 1 to D. 5, since
they had not been proved by the persons, who had maintained them, while
supporting the reasons given by the trial Judge, for rejection of those
documents, as sustainable. Both the counsel referred to the Law laid down by
the Supreme Court, which will be referred to at the relevant context.
B. Sriramulu, the learned counsel appearing for the respondent, contended that
P.W. 2 was an utter stranger to the appellants and he had no animosity
whatsoever against them. According to him, the appellants had taken advantage
of the situation in which P.W. 2 was placed requiring an urgent telephone
connection. The contents of the first information report Ex. P. 4 fully
corroborated the present version of P.W. 2. The appellants having gone to the
house of P.W. 2 at or about 12 Noon on 1-10-1984, was a powerful circumstance,
which strongly corroborated the evidence of P.W. 2 since in Ex.P. 4, the
earliest document. P.W. 2 has stated that A. 2 had informed him that he in the
company of A. 1 would go over to his residence at or about 12 Noon on Monday
(1-10-1984) to receive the demanded amount and simultaneously give the phone
connection. He would submit that S. 4(1) of the Act contemplated a legal
presumption contra distinguished from S. 114 of the Indian Evidence Act, which
related to factual pre-sumption. He also contended that if, in fact, P.W. 2 had
agreed to buy the donation tickets even on the morning of 29-9-1984 as alleged
by the accused, there was no need for P.S. 2 to get intouch with P.W. 6, the
Assistant Engineer, after 12 Noon on 29-9-1984 and P.W. 6 informing A. 1 at or
about 2 p.m. about the allotment of a casual telephone connection to P.W. 2,
which had to be executed. He pleaded for rejection of Exs. D. 1 to D. 5, since
they had not been proved by the persons, who had maintained them, while
supporting the reasons given by the trial Judge, for rejection of those
documents, as sustainable. Both the counsel referred to the Law laid down by
the Supreme Court, which will be referred to at the relevant context.
18. After the arguments
were concluded on 6-10-1989 and judgment was reserved, on my careful comparison
of the signatures of P.W. 2 found in Exs. D. 3 to D. 5 (disputed) and his
admitted signatures in Exs. P. 2, P. 4 and in his deposition in Court, I was of
the opinion that it was better that a Handwriting Expert offered his opinion
regarding the admitted and disputed signatures of P. W. 2 to vacilitate
arriving at a safe conclusion with regard to the identity of the signatures in
Exs. D. 3 to D. 5, which formed the sheet-ancher of the defence case. On
24-10-1989 I heard the defence counsel as well as the counsel for the
respondent and basing my view on the principle of law laid down by the Apex
Court in State (Delhi Administration) v. Pali Ram I directed that the disputed
writings of P.W. 2 in Exs. D-3 to D-5 and the admitted writings of P.W. 2 in
his court deposition, Exs. P-2 and P-4 be forwarded to the Handwriting Expert
attached to the State Forensic Laboratory for comparison and opinion.
Accordingly, the aforementioned documents were sent to the Handwriting Expert,
who by his reported dated 4-12-1989, offered his opinion. On 7-12-1989 on the
plea made by the learned counsel for the defence as well as the prosecution, I
directed issue of summons to A. S. Ramu, Scientific Assistant Grade-I, Forensic
Science Department, Madras-4, to appear before Court with all necessary
material to give evidence in respect of his opinion offered in D.O.C. No. 359
of 1989 dated 4-12-1989 and T. No. 7220/89 DOC. 359/89, dated 4-12-1989 on
13-12-1989. I also directed the Office to take Xerox copies of the opinion of
the Expert and furnish those copies to the prosecution as well as the accused
on or before 11-12-1989.
were concluded on 6-10-1989 and judgment was reserved, on my careful comparison
of the signatures of P.W. 2 found in Exs. D. 3 to D. 5 (disputed) and his
admitted signatures in Exs. P. 2, P. 4 and in his deposition in Court, I was of
the opinion that it was better that a Handwriting Expert offered his opinion
regarding the admitted and disputed signatures of P. W. 2 to vacilitate
arriving at a safe conclusion with regard to the identity of the signatures in
Exs. D. 3 to D. 5, which formed the sheet-ancher of the defence case. On
24-10-1989 I heard the defence counsel as well as the counsel for the
respondent and basing my view on the principle of law laid down by the Apex
Court in State (Delhi Administration) v. Pali Ram I directed that the disputed
writings of P.W. 2 in Exs. D-3 to D-5 and the admitted writings of P.W. 2 in
his court deposition, Exs. P-2 and P-4 be forwarded to the Handwriting Expert
attached to the State Forensic Laboratory for comparison and opinion.
Accordingly, the aforementioned documents were sent to the Handwriting Expert,
who by his reported dated 4-12-1989, offered his opinion. On 7-12-1989 on the
plea made by the learned counsel for the defence as well as the prosecution, I
directed issue of summons to A. S. Ramu, Scientific Assistant Grade-I, Forensic
Science Department, Madras-4, to appear before Court with all necessary
material to give evidence in respect of his opinion offered in D.O.C. No. 359
of 1989 dated 4-12-1989 and T. No. 7220/89 DOC. 359/89, dated 4-12-1989 on
13-12-1989. I also directed the Office to take Xerox copies of the opinion of
the Expert and furnish those copies to the prosecution as well as the accused
on or before 11-12-1989.
19. On 13-12-1989 the
Expert was examined in Court and both the parties were afforded an opportunity
to question the Expert. The disputed signatures in Exs. D-3 to D-5 were marked
by him as Q-1, Q-2 and Q-3 respectively. The admitted signature of P.W. 2 in
Ex.P-2 was numbered by him as S-1. The admitted signature of P.W. 2 on the reverse
of Ex. P. 4 was marked as S-2. The admitted signatures of P.W. 2 in his
deposition before IX Additional Special Judge, in seven sheets, were marked as
S-3 to S-15. The deposition itself was marked as Ex. C-1 before this Court. Out
of the seven sheets, the first six sheets contain the signature of P.W. 2 on
either side, while in the last sheet, it is found only on one page, where the
deposition has ended, the other side of the paper being blank. The Expert
deposed that he had examined the above signatures found in Q-1 to Q-3 and S-1
to S-15 carefully and that the person who wrote the red enclosed signatures
stamped and marked as S-1 to S-15, did not write the red enclosed signatures
similarly stamped and marked as Q-1 to Q-3. The reasoning sheet enclosed by him
was marked as Ex. C-2. The enlargements of the signatures of P.W. 2 (admitted
as well as disputed) were marked as Ex. C-3. The opinion expressed by him in
Court, forms part of his report as well, which is included in Ex. C-2. The
Expert has deposed that he has been giving evidence in Courts for the last 5
years and he has offered his opinion in more than 100 cases. The learned
counsel for the appellants, strenuously cross-examined him on various aspects,
and in ultimate analysis, his opinion was that the variations pointed by the
defence were only natural variations and were not distinctly different. He
deposed that in Ex.C-2, one was the opinion and the other was the reasoning.
When he was questioned about the signature of the Scientic Officer in the report,
he stated that he (A. S. Ramu) analysed the admitted and disputed signatures
and the Scientific Expert appended his signature after seeing the analysis done
by him, because it was the procedure in the Department, that a Gazetted Officer
had to put his signature. He was questioned about the quality of paper, pen
pressure, different kinds of movements, pen lifts etc. He conceded that in the
report he had only given the differences in the admitted and the disputed
signatures and had not given the similarities which, however, had been taken
into consideration, when the report was given. Usually, similarities were not
noted down. He categorically replied that a person cannot forge his signature,
though he could disguise it. He clarified it, by stating that if one wanted to
disguise, he can do it in a different way. Forgery meant, according to him,
trying to put the genuine signature of the man concerned, deceptively. It is
not a case of P.W. 2 attempting to forge his own signature, since the man did
not write in the usual manner he does. To a Court question, he definitely
stated that from a study of S-1 to S-15 and Q-1 to Q-3, the persons who had put
the signatures S-1 to S-15 had not put in differently in Q-1 to Q-3.
Expert was examined in Court and both the parties were afforded an opportunity
to question the Expert. The disputed signatures in Exs. D-3 to D-5 were marked
by him as Q-1, Q-2 and Q-3 respectively. The admitted signature of P.W. 2 in
Ex.P-2 was numbered by him as S-1. The admitted signature of P.W. 2 on the reverse
of Ex. P. 4 was marked as S-2. The admitted signatures of P.W. 2 in his
deposition before IX Additional Special Judge, in seven sheets, were marked as
S-3 to S-15. The deposition itself was marked as Ex. C-1 before this Court. Out
of the seven sheets, the first six sheets contain the signature of P.W. 2 on
either side, while in the last sheet, it is found only on one page, where the
deposition has ended, the other side of the paper being blank. The Expert
deposed that he had examined the above signatures found in Q-1 to Q-3 and S-1
to S-15 carefully and that the person who wrote the red enclosed signatures
stamped and marked as S-1 to S-15, did not write the red enclosed signatures
similarly stamped and marked as Q-1 to Q-3. The reasoning sheet enclosed by him
was marked as Ex. C-2. The enlargements of the signatures of P.W. 2 (admitted
as well as disputed) were marked as Ex. C-3. The opinion expressed by him in
Court, forms part of his report as well, which is included in Ex. C-2. The
Expert has deposed that he has been giving evidence in Courts for the last 5
years and he has offered his opinion in more than 100 cases. The learned
counsel for the appellants, strenuously cross-examined him on various aspects,
and in ultimate analysis, his opinion was that the variations pointed by the
defence were only natural variations and were not distinctly different. He
deposed that in Ex.C-2, one was the opinion and the other was the reasoning.
When he was questioned about the signature of the Scientic Officer in the report,
he stated that he (A. S. Ramu) analysed the admitted and disputed signatures
and the Scientific Expert appended his signature after seeing the analysis done
by him, because it was the procedure in the Department, that a Gazetted Officer
had to put his signature. He was questioned about the quality of paper, pen
pressure, different kinds of movements, pen lifts etc. He conceded that in the
report he had only given the differences in the admitted and the disputed
signatures and had not given the similarities which, however, had been taken
into consideration, when the report was given. Usually, similarities were not
noted down. He categorically replied that a person cannot forge his signature,
though he could disguise it. He clarified it, by stating that if one wanted to
disguise, he can do it in a different way. Forgery meant, according to him,
trying to put the genuine signature of the man concerned, deceptively. It is
not a case of P.W. 2 attempting to forge his own signature, since the man did
not write in the usual manner he does. To a Court question, he definitely
stated that from a study of S-1 to S-15 and Q-1 to Q-3, the persons who had put
the signatures S-1 to S-15 had not put in differently in Q-1 to Q-3.
20. After the recording
of the evidence of the Court witness, I again heard the submissions of the
prosecuting and the defence counsel. They referred to me, passages from
“Hand-writing and Thumb-print Identification and Forensic Science by H. R.
Hardless, 1970 Edition as well as from Metha’s Treatise on Hand-writing
Identification and Finger Prints. They also referred to certain decisions of
the Supreme Court on the acceptability or otherwise of the opinion of the
Hand-writing. Expert, while drawing my attention to the relevant recorded
evidence.
of the evidence of the Court witness, I again heard the submissions of the
prosecuting and the defence counsel. They referred to me, passages from
“Hand-writing and Thumb-print Identification and Forensic Science by H. R.
Hardless, 1970 Edition as well as from Metha’s Treatise on Hand-writing
Identification and Finger Prints. They also referred to certain decisions of
the Supreme Court on the acceptability or otherwise of the opinion of the
Hand-writing. Expert, while drawing my attention to the relevant recorded
evidence.
21. As far as the
evidence of the Handwriting Expert is concerned, the law is settled that such
opinion evidence, cannot be stated to be conclusive. The Court is competent to
compare the disputed and admitted writings, even without examining an Expert to
satisfy itself from its own observations, to arrive at conclusions; but, as a
matter of prudence and caution, it was always better to have the opinion of an
Expert, to facilitate the scrutiny of those signatures, through the eyes of the
Court. It will be relevant at this stage to quote the observations of the
Supreme Court in Fakhruddin v. State of Madhya Pradesh (AIR 1967 SC 1325 at p
1328 : (1967 Cri LJ 1197) paras 10 and 11) :-
evidence of the Handwriting Expert is concerned, the law is settled that such
opinion evidence, cannot be stated to be conclusive. The Court is competent to
compare the disputed and admitted writings, even without examining an Expert to
satisfy itself from its own observations, to arrive at conclusions; but, as a
matter of prudence and caution, it was always better to have the opinion of an
Expert, to facilitate the scrutiny of those signatures, through the eyes of the
Court. It will be relevant at this stage to quote the observations of the
Supreme Court in Fakhruddin v. State of Madhya Pradesh (AIR 1967 SC 1325 at p
1328 : (1967 Cri LJ 1197) paras 10 and 11) :-
“Evidence of the
identity of hand-writing receives treatment in three sections of the Indian
Evidence Act. They are Ss. 45, 47 and 73. Handwriting may be proved on
admission of the writer, by the evidence of some witness in whose presence he
wrote. This is direct evidence and if it is available the evidence of any other
kind is rendered unnecessary. The Evidence Act also makes relevant the opinion
of a handwriting expert (S. 45) or of one who is familiar with the writing of a
person who is said to have written a particular writing. Thus besides direct
evidence which is of course the best method of proof, the law makes relevant
two other modes. A writing may be proved to be in the handwriting of a
particular individual by the evidence of a person familiar with the handwriting
of that individual or by the testimony of an expert competent to the comparison
of handwritings on a scientific basis. A third method (S. 73) is comparison by
the Court with a writing made in the presence of the Court or admitted or
proved to be the writing of the person.
identity of hand-writing receives treatment in three sections of the Indian
Evidence Act. They are Ss. 45, 47 and 73. Handwriting may be proved on
admission of the writer, by the evidence of some witness in whose presence he
wrote. This is direct evidence and if it is available the evidence of any other
kind is rendered unnecessary. The Evidence Act also makes relevant the opinion
of a handwriting expert (S. 45) or of one who is familiar with the writing of a
person who is said to have written a particular writing. Thus besides direct
evidence which is of course the best method of proof, the law makes relevant
two other modes. A writing may be proved to be in the handwriting of a
particular individual by the evidence of a person familiar with the handwriting
of that individual or by the testimony of an expert competent to the comparison
of handwritings on a scientific basis. A third method (S. 73) is comparison by
the Court with a writing made in the presence of the Court or admitted or
proved to be the writing of the person.
Both under Section 45
and S. 47, the evidence is an opinion, in the former by a scientific comparison
and in the latter on the basis of familiarity resulting from frequent
observations and experience. In either case the Court must satisfy itself by
such means as are open that the opinion may be acted upon. One such means open
to the Court is to apply its own observation to the admitted or proved writings
and to compare them with the disputed one, not to become an handwriting expert
but to verify the premises of the expert, in the one case and to appraise the
value of the opinion in the other case. This comparison depends on an analysis
of the characteristics in the admitted or proved writings and the finding of
the same characteristics in large measure in the disputed writing. In this way
the opinion of the deponent whether expert or other is subjected to scrutiny
and although relevant to start with becomes probative. Where an expert’s
opinion is given, the Court must see for itself and with the assistance of the
expert come to its own conclusion whether it can safely be held that the two
writings are by the same person. This is not to say that the Court must play
the role of an expert but to say that the Court may accept the fact proved only
when it has satisfied itself on its own observation that it is safe to accept
the opinion whether of the expert or other witness.”
and S. 47, the evidence is an opinion, in the former by a scientific comparison
and in the latter on the basis of familiarity resulting from frequent
observations and experience. In either case the Court must satisfy itself by
such means as are open that the opinion may be acted upon. One such means open
to the Court is to apply its own observation to the admitted or proved writings
and to compare them with the disputed one, not to become an handwriting expert
but to verify the premises of the expert, in the one case and to appraise the
value of the opinion in the other case. This comparison depends on an analysis
of the characteristics in the admitted or proved writings and the finding of
the same characteristics in large measure in the disputed writing. In this way
the opinion of the deponent whether expert or other is subjected to scrutiny
and although relevant to start with becomes probative. Where an expert’s
opinion is given, the Court must see for itself and with the assistance of the
expert come to its own conclusion whether it can safely be held that the two
writings are by the same person. This is not to say that the Court must play
the role of an expert but to say that the Court may accept the fact proved only
when it has satisfied itself on its own observation that it is safe to accept
the opinion whether of the expert or other witness.”
22. While on the topic
of appreciation of the evidence of Expert, it will be relevant to refer to the
observations of the Supreme Court in two of its pronouncements. In Bhagwan Das
v. State of Rajasthan the Supreme Court took the view that where the opinions
of the author were neither shown to have been given in regard to circumstances
exactly similar to those in the particular case before Court; nor were they put
to the medical witness, it was not a satisfactory way of disposing of the
evidence of the witness to discredit it on the ground that the Doctor was a
comparatively young man and his statements did not accord with the opinions
expressed in the books.
of appreciation of the evidence of Expert, it will be relevant to refer to the
observations of the Supreme Court in two of its pronouncements. In Bhagwan Das
v. State of Rajasthan the Supreme Court took the view that where the opinions
of the author were neither shown to have been given in regard to circumstances
exactly similar to those in the particular case before Court; nor were they put
to the medical witness, it was not a satisfactory way of disposing of the
evidence of the witness to discredit it on the ground that the Doctor was a
comparatively young man and his statements did not accord with the opinions
expressed in the books.
23. Similarly, in
(Sunderlal v. State of Madhya Pradesh), the Supreme Court observed as follows
(at page 258; 1954 Cri LJ) :-
(Sunderlal v. State of Madhya Pradesh), the Supreme Court observed as follows
(at page 258; 1954 Cri LJ) :-
“The conviction of
the accused by the High Court was mainly based on passages from the text book
of Modi on Medical Jurisprudence and Texicology and these passages had not been
put to Dr. Dube when he was in the witness box with the result that the High
Court was not right in coming to the conclusion adverse to the accused by
merely relying upon these passages. It is therefore evident that before
reliance can be placed on authoritative text books by either party to attack
the evidence of an expert, it would be necessary to draw the attention of the
expert to those passages and furnish him an opportunity to explain the
same”.
the accused by the High Court was mainly based on passages from the text book
of Modi on Medical Jurisprudence and Texicology and these passages had not been
put to Dr. Dube when he was in the witness box with the result that the High
Court was not right in coming to the conclusion adverse to the accused by
merely relying upon these passages. It is therefore evident that before
reliance can be placed on authoritative text books by either party to attack
the evidence of an expert, it would be necessary to draw the attention of the
expert to those passages and furnish him an opportunity to explain the
same”.
24. We will now revert
back to the appreciation of the evidence on record, in the light of the
comments made by the opposing counsel, to find out the merits and deficiencies
in the prosecution case, and the defence placed, in the light of the onus
placed on it by the Special Act regarding the feasibility of upholding or
reversing the judgment of the trial Court. As far as the receipt of Rs. 300/-
from P.W. 2 by A-1 in the presence of A-2 is concerned, there is no dispute
whatsoever, between the prosecution and the accused. It is the case of P.W. 2
that Rs. 300/- was paid as bribe in pursuance of a demand, while it is the
specific case of the defence that they neither demanded a bribe nor accepted
it; but P.W. 2 had given that amount as a donation to Union Conference, as
agreed to by him on the earlier day. In view of the specific stand taken by the
appellants, it will not be necessary to delve in very great detail, about the
prior events that had happened on the application Ex. P. 2, sent by P.W. 2 to
the concerned authority, requesting for a casual telephone connection. The
events on 29-9-1984 and 1-10-1984 will certainly require in particular a
careful scrutiny due to the divergent stands of the prosecution and the
defence.
back to the appreciation of the evidence on record, in the light of the
comments made by the opposing counsel, to find out the merits and deficiencies
in the prosecution case, and the defence placed, in the light of the onus
placed on it by the Special Act regarding the feasibility of upholding or
reversing the judgment of the trial Court. As far as the receipt of Rs. 300/-
from P.W. 2 by A-1 in the presence of A-2 is concerned, there is no dispute
whatsoever, between the prosecution and the accused. It is the case of P.W. 2
that Rs. 300/- was paid as bribe in pursuance of a demand, while it is the
specific case of the defence that they neither demanded a bribe nor accepted
it; but P.W. 2 had given that amount as a donation to Union Conference, as
agreed to by him on the earlier day. In view of the specific stand taken by the
appellants, it will not be necessary to delve in very great detail, about the
prior events that had happened on the application Ex. P. 2, sent by P.W. 2 to
the concerned authority, requesting for a casual telephone connection. The
events on 29-9-1984 and 1-10-1984 will certainly require in particular a
careful scrutiny due to the divergent stands of the prosecution and the
defence.
25. P.W. 2 has deposed
that though he had deposited Rs. 920/- for the casual telephone connection on
21-9-1984, since nothing had happened further, he contacted the Mambalam
Telephone Exchange on 29-9-1984 and learnt that even on 22-9-1984 a casual
telephone connection to his residence, had been ordered and the telephone
number was to be 446001. He was also directed to get in touch with the Assistant
Engineer, Mambalam Exchange External, for further details. Accordingly, at 12
Noon on 29-9-1984, P.W. 2 got in touch with P.W. 6 over the telephone. P.W. 6
informed P.W. 2 that he had not received any communication from the Deputy Area
Manager, in respect of the casual telephone connection to P.W. 2. This answer
of P.W. 6 necessitated P.W. 2 telephoning the Office of the Deputy Area
Manager, Mambalam, over again, which resulted in his being informed, that even
on 22-9-1984, by registered post and telex P.W. 6 had been notified about this
casual telephone connection. P.W. 2 accordingly informed P.W. 6, who promised
to verify the records and inform him.
that though he had deposited Rs. 920/- for the casual telephone connection on
21-9-1984, since nothing had happened further, he contacted the Mambalam
Telephone Exchange on 29-9-1984 and learnt that even on 22-9-1984 a casual
telephone connection to his residence, had been ordered and the telephone
number was to be 446001. He was also directed to get in touch with the Assistant
Engineer, Mambalam Exchange External, for further details. Accordingly, at 12
Noon on 29-9-1984, P.W. 2 got in touch with P.W. 6 over the telephone. P.W. 6
informed P.W. 2 that he had not received any communication from the Deputy Area
Manager, in respect of the casual telephone connection to P.W. 2. This answer
of P.W. 6 necessitated P.W. 2 telephoning the Office of the Deputy Area
Manager, Mambalam, over again, which resulted in his being informed, that even
on 22-9-1984, by registered post and telex P.W. 6 had been notified about this
casual telephone connection. P.W. 2 accordingly informed P.W. 6, who promised
to verify the records and inform him.
26. This part of the
evidence of P.W. 2 is fully and completely corroborated by the evidence of P.W.
6, the Assistant Engineer. P.W. 6 has deposed that at or about 1 p.m. on
29-9-1984 one Murugesan (P.W. 2) contacted him over the telephone and enquired
him about the allotment of a casual telephone connection in his favour. He
promised to verify the records and take action, if allotment had been made.
P.W. 6 has made a note of his conversation with P.W. 2 on 29-9-1984 in Ex. P.
13, which is his scribbling pad. On verification of records P.W. 6 noticed,
that even on 27-9-1984 advice with regard to the temporary telephone connection
for P.W. 2 had been received by his Office. The relevant advice note has been
marked as Ex. P. 14. The details in the advice note, Ex.P. 14, have also been
incorporated by P.W. 6 in his note Ex. P. 13. Thereafter at 2 p.m. he got in
touch with the first appellant over the telephone and directed him to take
further steps to give a casual telephone connection at the residence of P.W. 2.
evidence of P.W. 2 is fully and completely corroborated by the evidence of P.W.
6, the Assistant Engineer. P.W. 6 has deposed that at or about 1 p.m. on
29-9-1984 one Murugesan (P.W. 2) contacted him over the telephone and enquired
him about the allotment of a casual telephone connection in his favour. He
promised to verify the records and take action, if allotment had been made.
P.W. 6 has made a note of his conversation with P.W. 2 on 29-9-1984 in Ex. P.
13, which is his scribbling pad. On verification of records P.W. 6 noticed,
that even on 27-9-1984 advice with regard to the temporary telephone connection
for P.W. 2 had been received by his Office. The relevant advice note has been
marked as Ex. P. 14. The details in the advice note, Ex.P. 14, have also been
incorporated by P.W. 6 in his note Ex. P. 13. Thereafter at 2 p.m. he got in
touch with the first appellant over the telephone and directed him to take
further steps to give a casual telephone connection at the residence of P.W. 2.
27. Therefore, all that
had happened between 12 Noon and 2 p.m. on 29-9-1984, as spoken to by P.W. 2,
is amply corroborated by the evidence of P.W. 6. P.W. 2, a finance broker, who
does not appear to be very affluent, certainly has no animosity against the
appellants, to falsely implicate them in this grave crime. Nothing worthwhile
has been elicited from P.W. 2 to even remotely suggest that he had a motive to
falsely implicate the appellants. All that had happened later, has been deposed
to by P.W. 2 and it is to the following effect.
had happened between 12 Noon and 2 p.m. on 29-9-1984, as spoken to by P.W. 2,
is amply corroborated by the evidence of P.W. 6. P.W. 2, a finance broker, who
does not appear to be very affluent, certainly has no animosity against the
appellants, to falsely implicate them in this grave crime. Nothing worthwhile
has been elicited from P.W. 2 to even remotely suggest that he had a motive to
falsely implicate the appellants. All that had happened later, has been deposed
to by P.W. 2 and it is to the following effect.
“At or about 4
p.m. the second appellant, who had not known P.W. 2 earlier, went over to the
house of the latter introduced himself as the Telephone Inspector, while
furnishing information, that a telephone connection had been ordered in his
favour. A-2 also told P.W. 2 that he had come to visit the place to locate the
venue of the installation of the telephone, at the instance of the Junior
Engineer, Palania Pillai, who is the first appellant. According to P.W. 2, A-2
told him that he and A-1 were the important persons concerned in giving the
casual telephone connection to P.W. 2 and that the procedure in giving
connection involved several problems and if P.W. 2 was prepared to pay a bribe
of Rs. 300/- to both of them, it was possible to give the connection even on
Monday, which would correlate to 1-10-1984. If the bribe demanded was not paid,
there would be delay in installing the telephone. A-2 further told P.W. 2, that
he and A-1 would go over to the house of the latter at 12 Noon on 1-10-1984.
When the telephone connection would be given, at which time, P.W. 2 must keep
Rs. 300/- ready for payment to them, as demanded”.
p.m. the second appellant, who had not known P.W. 2 earlier, went over to the
house of the latter introduced himself as the Telephone Inspector, while
furnishing information, that a telephone connection had been ordered in his
favour. A-2 also told P.W. 2 that he had come to visit the place to locate the
venue of the installation of the telephone, at the instance of the Junior
Engineer, Palania Pillai, who is the first appellant. According to P.W. 2, A-2
told him that he and A-1 were the important persons concerned in giving the
casual telephone connection to P.W. 2 and that the procedure in giving
connection involved several problems and if P.W. 2 was prepared to pay a bribe
of Rs. 300/- to both of them, it was possible to give the connection even on
Monday, which would correlate to 1-10-1984. If the bribe demanded was not paid,
there would be delay in installing the telephone. A-2 further told P.W. 2, that
he and A-1 would go over to the house of the latter at 12 Noon on 1-10-1984.
When the telephone connection would be given, at which time, P.W. 2 must keep
Rs. 300/- ready for payment to them, as demanded”.
The evidence of P.W. 2
discloses that he did not desire to give a bribe, though he has not
specifically stated that he informed A-1 of his unwillingness. This part of the
substantive evidence of P.W. 2 is corroborated by the contents of the first
information report Ex. P. 4 lodged by him before the Superintendent of Police,
Central Bureau of Investigation, Madras, at or about 9-15 a.m. on 1-10-1984.
Ex. P. 4 narrates all details from the stage of P.W. 2 sending an application
to the Deputy Area Manager, Telephones, for a casual telephone connection,
leading to his contacting P.W. 6 over the telephone on the afternoon of
29-9-1984 and culminating in the visit of A-2 to his house at or about 4 p.m.
when the demand for a bribe of Rs. 300/- was made on behalf of both A-2 and A-2
coupled with the promise of giving the phone connection at 12 Noon on Monday
(1-10-1984) when they would go over to his house to receive the demanded bribe
amount, as well. At this stage, it cannot be overlooked that both A-1 and A-2
had no prior acquaintance with P.W. 2. The facts plainly and crisply stated in
Ex. P. 4 by P.W. 2, certainly lands assurance to his present version in Court.
In the entire fabric of the version of P.W. 2, there appears to be no
underlying current of truth. If, in fact, as claimed by the defence, P.W. 2 had
gone over to the Mambalam Exchange External at or about 9 a.m. on 29-9-1984 and
agreed to pay Rs. 300/- as donation, after learning that a temporary telephone
connection had been allotted to him, from A-1 and A-2, there was no need
whatsoever for P.W. 2 to get in touch with P.W. 6, the Assistant Engineer of
the Mambalam Exchange External, who himself became aware of Ex. P. 14, only
after the telephone call of P.W. 2 to him past noon on 29-9-1984. The evidence
of P.W. 6, a responsible officer of the Mambalam Exchange External fully
confirm the truth of P.W. 2’s version. All that had happened at the Office of
the Investigating Officer on 1-10-1984 leading to the preparation of the
extrustment Mahazar Ex. P. 5 and the further actual trip of P.W. 5, the
Inspector of Police S.P.E., C.B.I. in the company of P.Ws. 2 and 3 to the house
of P.W. 2 need not have to detain, us, in view of the admission of the appellants
of their presence at the residence of P.W. 2 at or about 12 Noon on 1-10-1984
and the receipt of Rs. 300/- by A-1 then, from P.W. 2.
discloses that he did not desire to give a bribe, though he has not
specifically stated that he informed A-1 of his unwillingness. This part of the
substantive evidence of P.W. 2 is corroborated by the contents of the first
information report Ex. P. 4 lodged by him before the Superintendent of Police,
Central Bureau of Investigation, Madras, at or about 9-15 a.m. on 1-10-1984.
Ex. P. 4 narrates all details from the stage of P.W. 2 sending an application
to the Deputy Area Manager, Telephones, for a casual telephone connection,
leading to his contacting P.W. 6 over the telephone on the afternoon of
29-9-1984 and culminating in the visit of A-2 to his house at or about 4 p.m.
when the demand for a bribe of Rs. 300/- was made on behalf of both A-2 and A-2
coupled with the promise of giving the phone connection at 12 Noon on Monday
(1-10-1984) when they would go over to his house to receive the demanded bribe
amount, as well. At this stage, it cannot be overlooked that both A-1 and A-2
had no prior acquaintance with P.W. 2. The facts plainly and crisply stated in
Ex. P. 4 by P.W. 2, certainly lands assurance to his present version in Court.
In the entire fabric of the version of P.W. 2, there appears to be no
underlying current of truth. If, in fact, as claimed by the defence, P.W. 2 had
gone over to the Mambalam Exchange External at or about 9 a.m. on 29-9-1984 and
agreed to pay Rs. 300/- as donation, after learning that a temporary telephone
connection had been allotted to him, from A-1 and A-2, there was no need
whatsoever for P.W. 2 to get in touch with P.W. 6, the Assistant Engineer of
the Mambalam Exchange External, who himself became aware of Ex. P. 14, only
after the telephone call of P.W. 2 to him past noon on 29-9-1984. The evidence
of P.W. 6, a responsible officer of the Mambalam Exchange External fully
confirm the truth of P.W. 2’s version. All that had happened at the Office of
the Investigating Officer on 1-10-1984 leading to the preparation of the
extrustment Mahazar Ex. P. 5 and the further actual trip of P.W. 5, the
Inspector of Police S.P.E., C.B.I. in the company of P.Ws. 2 and 3 to the house
of P.W. 2 need not have to detain, us, in view of the admission of the appellants
of their presence at the residence of P.W. 2 at or about 12 Noon on 1-10-1984
and the receipt of Rs. 300/- by A-1 then, from P.W. 2.
28. The next stage
relates to all that had happened at the residence of P.W. 2 on the fateful
morning. P.W. 2, in the company of P.W. 3, an independent witness, working as
an Assistant in the Office of Director, of Inspection, Madras, reached his
residence at 11-30 a.m. Four or Five linemen were engaged in giving the
telephone connection. They finished their work at or about 12 Noon and were
waiting in the open space, outside the residence of P.W. 2. Exactly at 12 Noon,
both the appellants came to the house of P.W. 2 and reached the main hall where
P.Ws. 2 and 3 were seated. A-2 introduced A-1 to P.W. 2. A-1 went over to the
toilet, while A-2 started perusing the newspaper. A-1 was having a kerchief in
his hand. A-1 asked P.W. 2 to give the money. When P.W. 2 questioned the
quantum to be paid, A-1 directed P.W. 2 to pay cash as told earlier by A-2.
P.W. 2 asked A-1 to take Rs. 200/- instead of Rs. 300/- demanded by A-2, which
evoked a reply from A-1 that P.W. 2 must pay the amount stipulated by A-2. Soon
thereafter, P.W. 2 took out Rs. 300/- from his shirt pocket and handed it over
to the first appellant. A-2 suggested counting of the notes by A-1, which the
latter did and kept the currency along with his kerchief in his right hand.
P.W. 2 gave the pre-arranged signal of wiping his face with a kerchief to
denote that payment had been effected to A-1. P.W. 5 thereafter, on noticing
the signal given by P.W. 2, came over to the spot and introduced himself and
another mahazar witness to A-1. P.W. 5 questioned A. 1 as to whether he had
received money. This question of P.W. 5 shocked and stunned P.W. 2 was directed
to go out and was called in again only after about an hour. The investigating
officer went away latter with the accused and the witnesses. The telephone
connection was given on 3-10-1984. P.W. 2 has identified M.Os. 1 to 7 as the
currency notes handed over by him to A-1 and M.O. 8, as the kerchief possessed
by A-1 at that point of time.
relates to all that had happened at the residence of P.W. 2 on the fateful
morning. P.W. 2, in the company of P.W. 3, an independent witness, working as
an Assistant in the Office of Director, of Inspection, Madras, reached his
residence at 11-30 a.m. Four or Five linemen were engaged in giving the
telephone connection. They finished their work at or about 12 Noon and were
waiting in the open space, outside the residence of P.W. 2. Exactly at 12 Noon,
both the appellants came to the house of P.W. 2 and reached the main hall where
P.Ws. 2 and 3 were seated. A-2 introduced A-1 to P.W. 2. A-1 went over to the
toilet, while A-2 started perusing the newspaper. A-1 was having a kerchief in
his hand. A-1 asked P.W. 2 to give the money. When P.W. 2 questioned the
quantum to be paid, A-1 directed P.W. 2 to pay cash as told earlier by A-2.
P.W. 2 asked A-1 to take Rs. 200/- instead of Rs. 300/- demanded by A-2, which
evoked a reply from A-1 that P.W. 2 must pay the amount stipulated by A-2. Soon
thereafter, P.W. 2 took out Rs. 300/- from his shirt pocket and handed it over
to the first appellant. A-2 suggested counting of the notes by A-1, which the
latter did and kept the currency along with his kerchief in his right hand.
P.W. 2 gave the pre-arranged signal of wiping his face with a kerchief to
denote that payment had been effected to A-1. P.W. 5 thereafter, on noticing
the signal given by P.W. 2, came over to the spot and introduced himself and
another mahazar witness to A-1. P.W. 5 questioned A. 1 as to whether he had
received money. This question of P.W. 5 shocked and stunned P.W. 2 was directed
to go out and was called in again only after about an hour. The investigating
officer went away latter with the accused and the witnesses. The telephone
connection was given on 3-10-1984. P.W. 2 has identified M.Os. 1 to 7 as the
currency notes handed over by him to A-1 and M.O. 8, as the kerchief possessed
by A-1 at that point of time.
29. The happenings
inside the house of P.W. 2, on 1-10-1984 have been spoken to by P.Ws 3 and 5.
as well as D.W. 3. P.W. 3 was called by P.W. 5, on the morning of 1-10-1984 to
be a witness for the trap along with another Raman, not examined. He
corroborates the evidence of P.W. 2 of having reached the latter’s house around
at 11-15 a.m. on 1-10-1984. He has spoken about the linemen working for
installing a telephone, at the residence of P.W. 2. He sat along with P.W. 2 in
the hall. The workmen, after finishing their work, went out of the house of
P.W. 2 at or about 12 Noon. P.W. 5 was seated in the outer verandah near the
window. At or about 12 Noon both the appellants came inside of the house of
P.W. 2 and sat in the hall. A-2 introduced A-1 to P.W. 2 and started perusing
the newspaper, while A-1 went to the toilet. A. 1, when he returned from the
toilet, had with him a kerchief. P.W. 2 served tea. Till this portion the
evidence of P.Ws. 2 and 3 fully tally. However, according to P.W. 3, both the
accused asked P.W. 2 to hand over the money P.W. 2 bargained for the reduction
of the demand from Rs. 300/- to Rs. 200/- A-1 replied as follows : “the
quantum had already been decided. We will share this amount. We have to leave
the place soon after getting the amount from you”. Thereafter, P.W. 2 took
out Rs. 300/- from his shirt pocket and handed over to A-1. At the instance of
A-2, A-1 counted the money and kept it along with his kerchief. On the signal
made by P.W. 2, P.W. 5 and Raman came inside and questioned the accused. On
being questioned, the first appellant was in a state of shock. Before
proceeding further with the discussion of the evidence, it is better to dispose
of the argument of the learned counsel for the appellants that there is a vital
divergence between the evidence of P.W. 2 and P.W. 3 with regard to the demand
made on 1-10-1984. While according to P.W. 2, A-1 made the demand and when
questioned about the quantum he wanted to be paid as suggested by A-2 and
further the bargain to reduce, not having fructified, in that A-1 told P.W. 2
that the amount stipulated by A-2 had to be paid, P.W. 2 offered the bribe
amount of Rs. 300/-. However, P.W. 3 would have it that the demand was made by
both A-1 and A-2 and while the quantum was bargained, A-1 told P.W. 2 that
already the deal had been concluded and both of them will share the proceeds
and they were in a hurry to go, after obtaining the sum fixed, from P.W. 2. It
is obvious that there is divergence in the evidence of P.Ws. 2 and 3 with
regard to the actual words spoken as well as the demand being unilateral or
joint. It is seen from the cross-examination of P.Ws. 3 and 7 that the former
had not stated during investigation that both the accused demanded money from
P.W. 2 and that A-1 asked P.W. 2 to give money, as already agreed, since he and
A-2 would share the said money. It is, therefore, apparent that this
discrepancy does not materially effect the basic structure of the prosecution case.
Further these witnesses had deposed in Court in September, 1985, in respect of
an occurrence, which had happened one year ago. Human memory being frail, these
minute details, which do not strike at the root of the prosecution case, will
not be sufficient to throw out the version of P.W. 2, as incredible. It appears
that during investigation, both these witnesses had stated that A-2 made the
demand on 1-10-1984. As I have observed earlier, since payment had been
accepted by the accused, all that needs consideration is, whether the payment
was a bribe made on demand, or a mere passing of money by P.W. 2 as a donation.
I am satisfied that the main facet of the prosecution case that in pursuance of
the demand made by A-2 on 29-9-1984, both the accused had reached the house of
P.W. 2 at or about 12 Noon on 1-10-1984, must be true and be it by A-1 or A-2,
a demand had been made from P.W. 2 for the payment of bribe, in pursuance of a
prior understanding between both the accused. That, there must have been a prior
understanding between A-1 and A-2 is clear from the evidence of P.W. 2, who has
spoken in detail about all that had transpired between him and A-2 on
29-9-1984, which has been truthfully put in writing in Ex.P. 4, the earliest
document regarding the demand of bribe. The conduct of the appellants on
1-10-84, affirms this position. Both P.Ws. 2 and 5 have deposed about the
phenolphthalein test administered on A-1, proving positive; but, as stated
earlier, the receipt of money having been accepted, this test may be of no
consequence in this case.
inside the house of P.W. 2, on 1-10-1984 have been spoken to by P.Ws 3 and 5.
as well as D.W. 3. P.W. 3 was called by P.W. 5, on the morning of 1-10-1984 to
be a witness for the trap along with another Raman, not examined. He
corroborates the evidence of P.W. 2 of having reached the latter’s house around
at 11-15 a.m. on 1-10-1984. He has spoken about the linemen working for
installing a telephone, at the residence of P.W. 2. He sat along with P.W. 2 in
the hall. The workmen, after finishing their work, went out of the house of
P.W. 2 at or about 12 Noon. P.W. 5 was seated in the outer verandah near the
window. At or about 12 Noon both the appellants came inside of the house of
P.W. 2 and sat in the hall. A-2 introduced A-1 to P.W. 2 and started perusing
the newspaper, while A-1 went to the toilet. A. 1, when he returned from the
toilet, had with him a kerchief. P.W. 2 served tea. Till this portion the
evidence of P.Ws. 2 and 3 fully tally. However, according to P.W. 3, both the
accused asked P.W. 2 to hand over the money P.W. 2 bargained for the reduction
of the demand from Rs. 300/- to Rs. 200/- A-1 replied as follows : “the
quantum had already been decided. We will share this amount. We have to leave
the place soon after getting the amount from you”. Thereafter, P.W. 2 took
out Rs. 300/- from his shirt pocket and handed over to A-1. At the instance of
A-2, A-1 counted the money and kept it along with his kerchief. On the signal
made by P.W. 2, P.W. 5 and Raman came inside and questioned the accused. On
being questioned, the first appellant was in a state of shock. Before
proceeding further with the discussion of the evidence, it is better to dispose
of the argument of the learned counsel for the appellants that there is a vital
divergence between the evidence of P.W. 2 and P.W. 3 with regard to the demand
made on 1-10-1984. While according to P.W. 2, A-1 made the demand and when
questioned about the quantum he wanted to be paid as suggested by A-2 and
further the bargain to reduce, not having fructified, in that A-1 told P.W. 2
that the amount stipulated by A-2 had to be paid, P.W. 2 offered the bribe
amount of Rs. 300/-. However, P.W. 3 would have it that the demand was made by
both A-1 and A-2 and while the quantum was bargained, A-1 told P.W. 2 that
already the deal had been concluded and both of them will share the proceeds
and they were in a hurry to go, after obtaining the sum fixed, from P.W. 2. It
is obvious that there is divergence in the evidence of P.Ws. 2 and 3 with
regard to the actual words spoken as well as the demand being unilateral or
joint. It is seen from the cross-examination of P.Ws. 3 and 7 that the former
had not stated during investigation that both the accused demanded money from
P.W. 2 and that A-1 asked P.W. 2 to give money, as already agreed, since he and
A-2 would share the said money. It is, therefore, apparent that this
discrepancy does not materially effect the basic structure of the prosecution case.
Further these witnesses had deposed in Court in September, 1985, in respect of
an occurrence, which had happened one year ago. Human memory being frail, these
minute details, which do not strike at the root of the prosecution case, will
not be sufficient to throw out the version of P.W. 2, as incredible. It appears
that during investigation, both these witnesses had stated that A-2 made the
demand on 1-10-1984. As I have observed earlier, since payment had been
accepted by the accused, all that needs consideration is, whether the payment
was a bribe made on demand, or a mere passing of money by P.W. 2 as a donation.
I am satisfied that the main facet of the prosecution case that in pursuance of
the demand made by A-2 on 29-9-1984, both the accused had reached the house of
P.W. 2 at or about 12 Noon on 1-10-1984, must be true and be it by A-1 or A-2,
a demand had been made from P.W. 2 for the payment of bribe, in pursuance of a
prior understanding between both the accused. That, there must have been a prior
understanding between A-1 and A-2 is clear from the evidence of P.W. 2, who has
spoken in detail about all that had transpired between him and A-2 on
29-9-1984, which has been truthfully put in writing in Ex.P. 4, the earliest
document regarding the demand of bribe. The conduct of the appellants on
1-10-84, affirms this position. Both P.Ws. 2 and 5 have deposed about the
phenolphthalein test administered on A-1, proving positive; but, as stated
earlier, the receipt of money having been accepted, this test may be of no
consequence in this case.
30. P.W. 5 had
witnessed the happenings in the hall of the house of P.W. 2, though he was not
able to clearly hear the conversation between the accused and P.W. 2. He had
noticed A-1 receiving currency from P.W. 2 and retaining it in his right hand
along with the handkerchief. He has also deposed about the state of shock in
which A-1 was found on being questioned. The currency notes were recovered from
the nearby table where A-1 told, that the money had been placed.
witnessed the happenings in the hall of the house of P.W. 2, though he was not
able to clearly hear the conversation between the accused and P.W. 2. He had
noticed A-1 receiving currency from P.W. 2 and retaining it in his right hand
along with the handkerchief. He has also deposed about the state of shock in
which A-1 was found on being questioned. The currency notes were recovered from
the nearby table where A-1 told, that the money had been placed.
31. D.W. 3 is a Mazdoor
working in the Mambalam Exchange External. He is obviously a subordinate of A-1
and A-2. He has deposed that A-1 had asked him to collect from P.W. 2 the
amount due for donation tickets, if the latter paid him, since he had already handed
over the tickets to P.W. 2. He went along with five workmen to the house of
P.W. 2 to give connection. At or about 12 Noon both the accused came there. The
work was in progress. P.W. 2 served tea for all of them. A-1 received the money
paid by P.W. 2. D.W. 3 was standing near the compound at that time, and noticed
the aforesaid payment from there. The C.B.I. police caught hold of A-1. In
cross-examination, D.W. 3 has admitted that he was not asked by A-1, to demand
donation from P.W. 2. He was only asked to take the money in the event of P.W.
2 offering it. The quantum of donation due was also not informed to him, by
A-1. He has frankly admitted that he was deposing about this fact for the first
time in Court on 25-9-1985, more than a year after the occurrence. It is patent
from the evidence of P.W. 7 that D.W. 3 was examined during investigation and
the investigation disclosed that D.W. 3 was not present in the hall when the
money was tendered. Further the admission of D.W. 3 that he was deposing about
the happenings inside the hall of P.W. 2’s house, for the first time in Court
would certainly show that he was trotting out a story, which he did not choose
of divulge during investigation. The evidence of D.W. 3, which does not
impress, or inspire confidence cannot certainly override the positive evidence
of P.Ws. 2, 3 and 5. I reject the evidence of D.W. 3, as an absolute
afterthought.
working in the Mambalam Exchange External. He is obviously a subordinate of A-1
and A-2. He has deposed that A-1 had asked him to collect from P.W. 2 the
amount due for donation tickets, if the latter paid him, since he had already handed
over the tickets to P.W. 2. He went along with five workmen to the house of
P.W. 2 to give connection. At or about 12 Noon both the accused came there. The
work was in progress. P.W. 2 served tea for all of them. A-1 received the money
paid by P.W. 2. D.W. 3 was standing near the compound at that time, and noticed
the aforesaid payment from there. The C.B.I. police caught hold of A-1. In
cross-examination, D.W. 3 has admitted that he was not asked by A-1, to demand
donation from P.W. 2. He was only asked to take the money in the event of P.W.
2 offering it. The quantum of donation due was also not informed to him, by
A-1. He has frankly admitted that he was deposing about this fact for the first
time in Court on 25-9-1985, more than a year after the occurrence. It is patent
from the evidence of P.W. 7 that D.W. 3 was examined during investigation and
the investigation disclosed that D.W. 3 was not present in the hall when the
money was tendered. Further the admission of D.W. 3 that he was deposing about
the happenings inside the hall of P.W. 2’s house, for the first time in Court
would certainly show that he was trotting out a story, which he did not choose
of divulge during investigation. The evidence of D.W. 3, which does not
impress, or inspire confidence cannot certainly override the positive evidence
of P.Ws. 2, 3 and 5. I reject the evidence of D.W. 3, as an absolute
afterthought.
32. The prosecution
evidence certainly appears to merit acceptance. Now, the defence evidence has
to be considered from two different angles. The first approach will be to note,
if any dent has been caused by the defence in the case put forth by the
prosecution and secondly if on the inherent merits of its case, the defence had
established by preponderance of probability, that its case was acceptable, to
cast a suspicion on the basic truth of the prosecution case.
evidence certainly appears to merit acceptance. Now, the defence evidence has
to be considered from two different angles. The first approach will be to note,
if any dent has been caused by the defence in the case put forth by the
prosecution and secondly if on the inherent merits of its case, the defence had
established by preponderance of probability, that its case was acceptable, to
cast a suspicion on the basic truth of the prosecution case.
33. The evidence of
D.W. 3, has already been discussed and rejected. The evidence of D.Ws. 1 and 2
will have to be analysed, to appreciate the defence, of the money having been
paid as donation to A-1, by P.W. 2. D.W. 1 is a Junior Engineer in the Mambalam
External Unit. He has chosen to prove the tell-tale sheet Ex. D-1. Ex. D-1 is
sought to be connected with the attendance register marked as Ex. D-2.
According to him, in the Telephone Department there are three branches. The
first is the Exchange itself, otherwise described as internal. The second is
the external or the outdoor unit. The final unit is called the cables. All the
three units, in this prosecution, relate to Mambalam Division. These three
units operate from different places. The external or outdoor unit is concerned
with the maintenance of the telephone lines from the distribution point to the
subscriber’s point, as well as giving new telephone connections. The movements
of the employees of the outdoor unit, like the Phone Inspector, Linemen and
Technicians, will be entered in the tell-tale sheet. After a perusal of Ex. D-1
relating to 29-9-1984, D.W. 1 has deposed, that between 3-45 p.m. and 4-25 p.m.
on 29-9-1984, A-2 was in the external unit, in the Office itself. D.W. 1 has
been cross-examined in extenso by the prosecution. He has frankly admitted that
he is not the author of the entries in Ex. D-1. Two phone Inspectors were in
charge of the entries and one of them was Bhaskaran. The entries have been made
in Ex. D-1 in respect of A-2, by One Inspector in the forenoon and another in
the afternoon. Admittedly Bhaskaran is still in service. D.W. 1 was certain
that he had seen Ex. D-1 for the first time in Court. There was no indication
in Ex. D-1, of its having been verified by higher authorities, in the regular
course of business. The numbers given below the letters “O.D.” in Ex.
D-1, would indicate the serial number in the attendance register, marked as Ex.
D-2. At the relevant time, the authority, who had the supervisory power with
regard to Ex. D-1, was the first appellant. He admits that he was subordinate
to A-1 and P.W. 6 was their higher authority. To a specific suggestion that the
entries in Ex. D-1 would be made, only when people go out of the unit, he had
answered that it was not so. He has also conceded that he was not the author of
Ex. D-2. Before we scrutinise the entries in Exs. D-1 and D-2, it will be
relevant to refer to the evidence of P.W. 6 regarding tell-tale sheets. He has
deposed that the words “O.D.” indicate out door. According to him,
the tell-tale sheet will contain entries as to the time when the linemen and
inspectors had talked over the phone and the place from which they had
conversed. He was not aware as to when exactly, in the tell-tale sheet, the
letters “O.D.” would be incorporated. However, he has specifically
denied the suggestion made by the accused, that the letters “O.D.”
would show that the employee, working in the unit was inside the office itself.
A perusal of the Exchange tell-tale sheet shows, that there is a column,
christened as fault particulars. This relates to particular telephone numbers,
the time when the fault-complaint was given, the time when it was cleared and
the actual clearance time itself, All these details may have to be
incorporated, in that column. The last column has the heading
“clearance”. The very details found in print, in the tell-tale sheet,
would show that the particulars to he noted, may have to relate to the outdoor
work and normally cannot be correlated to the indoor work. Looking at the
tell-tale sheet and considering the evidence of P.W. 6 and D.W. 1, it appears
that the evidence of P.W. 6 deserves full credence in the light of the contents
of Ex. D-1, and the evidence of D.W. 1 has to be rejected as untrue. It is
rather strange that only for the entries made in respect of A-2, the letters
“O.D.” are written in ink; whereas for the other employees, it has
not been so noted. This is one more factor which even prima facie creates a
suspicion of fabrication, especially when we take note of the fact, admitted by
D.W. 1, that A-1 was the supervisory authority, with regard to this document.
D.W. 3, has already been discussed and rejected. The evidence of D.Ws. 1 and 2
will have to be analysed, to appreciate the defence, of the money having been
paid as donation to A-1, by P.W. 2. D.W. 1 is a Junior Engineer in the Mambalam
External Unit. He has chosen to prove the tell-tale sheet Ex. D-1. Ex. D-1 is
sought to be connected with the attendance register marked as Ex. D-2.
According to him, in the Telephone Department there are three branches. The
first is the Exchange itself, otherwise described as internal. The second is
the external or the outdoor unit. The final unit is called the cables. All the
three units, in this prosecution, relate to Mambalam Division. These three
units operate from different places. The external or outdoor unit is concerned
with the maintenance of the telephone lines from the distribution point to the
subscriber’s point, as well as giving new telephone connections. The movements
of the employees of the outdoor unit, like the Phone Inspector, Linemen and
Technicians, will be entered in the tell-tale sheet. After a perusal of Ex. D-1
relating to 29-9-1984, D.W. 1 has deposed, that between 3-45 p.m. and 4-25 p.m.
on 29-9-1984, A-2 was in the external unit, in the Office itself. D.W. 1 has
been cross-examined in extenso by the prosecution. He has frankly admitted that
he is not the author of the entries in Ex. D-1. Two phone Inspectors were in
charge of the entries and one of them was Bhaskaran. The entries have been made
in Ex. D-1 in respect of A-2, by One Inspector in the forenoon and another in
the afternoon. Admittedly Bhaskaran is still in service. D.W. 1 was certain
that he had seen Ex. D-1 for the first time in Court. There was no indication
in Ex. D-1, of its having been verified by higher authorities, in the regular
course of business. The numbers given below the letters “O.D.” in Ex.
D-1, would indicate the serial number in the attendance register, marked as Ex.
D-2. At the relevant time, the authority, who had the supervisory power with
regard to Ex. D-1, was the first appellant. He admits that he was subordinate
to A-1 and P.W. 6 was their higher authority. To a specific suggestion that the
entries in Ex. D-1 would be made, only when people go out of the unit, he had
answered that it was not so. He has also conceded that he was not the author of
Ex. D-2. Before we scrutinise the entries in Exs. D-1 and D-2, it will be
relevant to refer to the evidence of P.W. 6 regarding tell-tale sheets. He has
deposed that the words “O.D.” indicate out door. According to him,
the tell-tale sheet will contain entries as to the time when the linemen and
inspectors had talked over the phone and the place from which they had
conversed. He was not aware as to when exactly, in the tell-tale sheet, the
letters “O.D.” would be incorporated. However, he has specifically
denied the suggestion made by the accused, that the letters “O.D.”
would show that the employee, working in the unit was inside the office itself.
A perusal of the Exchange tell-tale sheet shows, that there is a column,
christened as fault particulars. This relates to particular telephone numbers,
the time when the fault-complaint was given, the time when it was cleared and
the actual clearance time itself, All these details may have to be
incorporated, in that column. The last column has the heading
“clearance”. The very details found in print, in the tell-tale sheet,
would show that the particulars to he noted, may have to relate to the outdoor
work and normally cannot be correlated to the indoor work. Looking at the
tell-tale sheet and considering the evidence of P.W. 6 and D.W. 1, it appears
that the evidence of P.W. 6 deserves full credence in the light of the contents
of Ex. D-1, and the evidence of D.W. 1 has to be rejected as untrue. It is
rather strange that only for the entries made in respect of A-2, the letters
“O.D.” are written in ink; whereas for the other employees, it has
not been so noted. This is one more factor which even prima facie creates a
suspicion of fabrication, especially when we take note of the fact, admitted by
D.W. 1, that A-1 was the supervisory authority, with regard to this document.
34. The entries in Ex.
D-1, were sought to be correlated with the entries made on the same day, in the
attendance register marked as Ex. D-2. Serial Nos. 30, 34, 35 and 36 are stated
to relate to the second accused, whose name is K. Rasheed Ahmed. The initial of
A-2 is put in this document as K.R. Ex. D-2 shows the following timings against
K.R. Against serial No. 30, 3-45 p.m. is noted; while against 34, it is 4 p.m.
and 4-05 p.m. against serial No. 35. Against serial No. 36, the time noted is
4-25 p.m. Prima facie it appeared, that this document had been maintained in
the regular course of business, though this document did not indicate that at
the relevant timings noted therein, the persons concerned must be presumed to
have worked inside the office itself. However, a careful scrutiny of this
document creates a substantial doubt about the truth of the entries. Entry 31
is an entry against some other person at 3-45 p.m. Items 32 and 33 in the left
hand column, referable to 29-9-1984, relate to two other employees, at 4 p.m.
The last entry in the left hand column is No. 34 and it is stated to relate to
A-2. However, on the right hand side after serial No. 35, we have serial No. 32
noted against some other person at 3-50 p.m. It is, therefore, apparent that
after item 31 on the left hand side on 29-9-1984 at 3-45 p.m. there was no
other entry. The next entry No. 32 at 3-50 p.m. had been made on the right hand
side. To provide a defence, it appears that serial Nos. 32, 33 and 34, on the
left side and 35 and 36 on the right side have been purposely entered in this
document. If it were not to be so, it will be very difficult to have serial
Nos. 32 in between 35 and 36 on the right hand side. Item 32 relates to an
entry at 3-50 p.m., which fits in with the earlier entry made at 3-45 p.m.
noted as item 31. The interlineation in this document is so patent, that with
an ulterior motive of setting up a defence, this document had been tampered
with and so suit Ex. D-2, obviously D-1 also had been brought into existence.
On the basis of this document, it is not possible to hold that A-2 must have
been working inside the office of the Telephone Exchange at Mambalam between
3-45 p.m. and 4-25 p.m., negativing the prosecution case of A-2 having met P.W.
2 at his residence at 4 p.m. on 29-9-1984. If the tell-tale sheet in the
corresponding attendance register must relate to the out door work, it stands
to reason that as noted in item 30, K. R. the second accused had to go out door
at 3-45 p.m. on 29-9-1984. This entry relating to item 30 appears to be real
and only thereafter, as put forth by the prosecution, A-2 had got in touch with
P.W. 2 at the latter’s residence. Ex. D-2, instead of helping the defence, has
certainly magnified the truth of P.W. 2’s version of A-2 having met him at 4
p.m. on 29-9-1984. If it could thus be safely concluded that A-2 had met P.W. 2
on 29-9-1984, though disclaimed by the former, the prosecution case of demand
certainly deserves credence. I have no hesitation in rejecting the evidence of
D.W. 1 with regard to Exs. D-1 and D-2. I further hold that Ex. D-1 and certain
entries in Ex. D-2 have been created for the purpose of shaping the defence.
D-1, were sought to be correlated with the entries made on the same day, in the
attendance register marked as Ex. D-2. Serial Nos. 30, 34, 35 and 36 are stated
to relate to the second accused, whose name is K. Rasheed Ahmed. The initial of
A-2 is put in this document as K.R. Ex. D-2 shows the following timings against
K.R. Against serial No. 30, 3-45 p.m. is noted; while against 34, it is 4 p.m.
and 4-05 p.m. against serial No. 35. Against serial No. 36, the time noted is
4-25 p.m. Prima facie it appeared, that this document had been maintained in
the regular course of business, though this document did not indicate that at
the relevant timings noted therein, the persons concerned must be presumed to
have worked inside the office itself. However, a careful scrutiny of this
document creates a substantial doubt about the truth of the entries. Entry 31
is an entry against some other person at 3-45 p.m. Items 32 and 33 in the left
hand column, referable to 29-9-1984, relate to two other employees, at 4 p.m.
The last entry in the left hand column is No. 34 and it is stated to relate to
A-2. However, on the right hand side after serial No. 35, we have serial No. 32
noted against some other person at 3-50 p.m. It is, therefore, apparent that
after item 31 on the left hand side on 29-9-1984 at 3-45 p.m. there was no
other entry. The next entry No. 32 at 3-50 p.m. had been made on the right hand
side. To provide a defence, it appears that serial Nos. 32, 33 and 34, on the
left side and 35 and 36 on the right side have been purposely entered in this
document. If it were not to be so, it will be very difficult to have serial
Nos. 32 in between 35 and 36 on the right hand side. Item 32 relates to an
entry at 3-50 p.m., which fits in with the earlier entry made at 3-45 p.m.
noted as item 31. The interlineation in this document is so patent, that with
an ulterior motive of setting up a defence, this document had been tampered
with and so suit Ex. D-2, obviously D-1 also had been brought into existence.
On the basis of this document, it is not possible to hold that A-2 must have
been working inside the office of the Telephone Exchange at Mambalam between
3-45 p.m. and 4-25 p.m., negativing the prosecution case of A-2 having met P.W.
2 at his residence at 4 p.m. on 29-9-1984. If the tell-tale sheet in the
corresponding attendance register must relate to the out door work, it stands
to reason that as noted in item 30, K. R. the second accused had to go out door
at 3-45 p.m. on 29-9-1984. This entry relating to item 30 appears to be real
and only thereafter, as put forth by the prosecution, A-2 had got in touch with
P.W. 2 at the latter’s residence. Ex. D-2, instead of helping the defence, has
certainly magnified the truth of P.W. 2’s version of A-2 having met him at 4
p.m. on 29-9-1984. If it could thus be safely concluded that A-2 had met P.W. 2
on 29-9-1984, though disclaimed by the former, the prosecution case of demand
certainly deserves credence. I have no hesitation in rejecting the evidence of
D.W. 1 with regard to Exs. D-1 and D-2. I further hold that Ex. D-1 and certain
entries in Ex. D-2 have been created for the purpose of shaping the defence.
35. The evidence of
D.W. 2, who is a wire man and the subordinate of A-1 will have to be next
considered. Exs. D-3 to D-5 are sought to be proved through him. It is his
evidence that at or about 9 a.m. on 29-9-1984, P.W. 2 was at his office,
stating that a telephone connection had been allotted to him by the Area
Manager and was anxious to find out if that connection could be given, on the
same day. He expressed a desire to meet the Assistant Engineer (P.W. 6). D.W.
2, who learnt, that the area where P.W. 2 lived, was within the jurisdiction of
the Junior Engineer (A-1), informed the said fact to the latter. Both the
accused were then available in the Office along with another Junior Engineer,
Iswaran, not examined. P.W. 2 immediately went over to A-1 and asked him if the
telephone connection could be given immediately. A-1 is stated to have replied
that if there was an order for telephone connection, it could immediately be
executed. When P.W. 2 wanted the connection to be given on the same day, A-2,
who was near A-1, told P.W. 2 that he had to give a donation for their
Conference, which was being organised. According to D.W. 2, P.W. 2 replied that
he had no funds then and would make the payment when they go over to this house
for installing the telephone. Three donation receipts for Rs. 100/- each were
given to P.W. 2, who signed on the counterfoils. Those counterfoils; where P.W.
2 affixed his signatures have been marked as D. 3 to D-5. Both the accused
assured him that if an order had been received, they would give connection
immediately. P.W. 2 thereafter left the office. In cross-examination D.W. 2 has
admitted that he is the Divisional Secretary of the Union. He was directed on
the morning of 1-10-1984 to give the telephone connection, at the residence of
P.W. 2. The relevant order is Ex. P. 16. A-2 has signed in it. Apart from D.W.
2, one Venkatesan was also directed to attend to this job. D.W. 5 states that
he and Venkatesan did not attend to this work in view of his pre-occupation
with Union activities. He had also audaciously stated that he went out of the
Office, without informing anyone else and he was not aware as to who was
deputed to attend to this work, in his absence. He learnt only on the next day
that D.W. 3 was deputed. He has conceded that he was depositing about all that
had happened on the morning of 29-9-1984 for the first time in Court. He admits
of the investigating officer having examined him with reference to Ex. P. 16
and his not having informed the Inspector of Police about all that had happened
on the morning of 29-9-1984. According to his evidence, each ticket book would
contain 5 leaves. He was not aware, in whose custody the book containing Exs.
D-3 to D-5 had been handed over. He sought to identify the signatures in Exs.
D-3 to D-5 as that of P.W. 2, in view of the said signatures having been
affixed in his presence by P.W. 2. A suggestion put to him, that P.W. 2 did not
affix his signatures in Exs. D-3 to D-5, was denied.
D.W. 2, who is a wire man and the subordinate of A-1 will have to be next
considered. Exs. D-3 to D-5 are sought to be proved through him. It is his
evidence that at or about 9 a.m. on 29-9-1984, P.W. 2 was at his office,
stating that a telephone connection had been allotted to him by the Area
Manager and was anxious to find out if that connection could be given, on the
same day. He expressed a desire to meet the Assistant Engineer (P.W. 6). D.W.
2, who learnt, that the area where P.W. 2 lived, was within the jurisdiction of
the Junior Engineer (A-1), informed the said fact to the latter. Both the
accused were then available in the Office along with another Junior Engineer,
Iswaran, not examined. P.W. 2 immediately went over to A-1 and asked him if the
telephone connection could be given immediately. A-1 is stated to have replied
that if there was an order for telephone connection, it could immediately be
executed. When P.W. 2 wanted the connection to be given on the same day, A-2,
who was near A-1, told P.W. 2 that he had to give a donation for their
Conference, which was being organised. According to D.W. 2, P.W. 2 replied that
he had no funds then and would make the payment when they go over to this house
for installing the telephone. Three donation receipts for Rs. 100/- each were
given to P.W. 2, who signed on the counterfoils. Those counterfoils; where P.W.
2 affixed his signatures have been marked as D. 3 to D-5. Both the accused
assured him that if an order had been received, they would give connection
immediately. P.W. 2 thereafter left the office. In cross-examination D.W. 2 has
admitted that he is the Divisional Secretary of the Union. He was directed on
the morning of 1-10-1984 to give the telephone connection, at the residence of
P.W. 2. The relevant order is Ex. P. 16. A-2 has signed in it. Apart from D.W.
2, one Venkatesan was also directed to attend to this job. D.W. 5 states that
he and Venkatesan did not attend to this work in view of his pre-occupation
with Union activities. He had also audaciously stated that he went out of the
Office, without informing anyone else and he was not aware as to who was
deputed to attend to this work, in his absence. He learnt only on the next day
that D.W. 3 was deputed. He has conceded that he was depositing about all that
had happened on the morning of 29-9-1984 for the first time in Court. He admits
of the investigating officer having examined him with reference to Ex. P. 16
and his not having informed the Inspector of Police about all that had happened
on the morning of 29-9-1984. According to his evidence, each ticket book would
contain 5 leaves. He was not aware, in whose custody the book containing Exs.
D-3 to D-5 had been handed over. He sought to identify the signatures in Exs.
D-3 to D-5 as that of P.W. 2, in view of the said signatures having been
affixed in his presence by P.W. 2. A suggestion put to him, that P.W. 2 did not
affix his signatures in Exs. D-3 to D-5, was denied.
36. P.W. 2 has been
extensively questioned on this portion of the defence case. He has
categorically denied that the signatures found in Exs. D-3 to D-5 were his.
According to him, he did not go to the Office of A-1 on the morning of
29-9-1984 and, therefore, there was no scope for his having talked with the appellants
or D.W. 2. The evidence of P.W. 2 certainly must be true for if as stated by
the accused he had already met them at or about 9 a.m. on 29-9-1984 and told
D.W. 2, that already a telephone connection in his favour had been ordered by
the Area Manager, there was no need for him to have contacted P.W. 6 to find
out the position regarding his application. As soon as he knew from the Office
of the Area Manager, that allotment had been made, he had got in touch with
P.W. 6 once at 12 Noon and again at 1 p.m., as suggested by the Office of the
Area Manager. The evidence of P.W. 2, as stated earlier on this aspect, is not
only corroborated by the oral evidence of P.W. 6, but also by the documentary
evidence produced as Ex. P. 3. That the evidence of P.W. 2 must be true is
further strengthened by the evidence of P.W. 6 that he had informed A-1 over
the telephone at 2 p.m. on 29-9-1984 about the allotment of a telephone
connection to P.W. 2 with a direction to him to take further action. The
statement of A-1 that he was so informed by P.W. 6 only at 4-30 p.m. cannot be
accepted. If the prosecution case of A-2 having met P.W. 2 at 4 p.m. on
29-9-1984 is acceptable, as already found, the case of A-1, as though he knew
about this telephone connection only at 4-30 p.m. is not entitled to
acceptance.
extensively questioned on this portion of the defence case. He has
categorically denied that the signatures found in Exs. D-3 to D-5 were his.
According to him, he did not go to the Office of A-1 on the morning of
29-9-1984 and, therefore, there was no scope for his having talked with the appellants
or D.W. 2. The evidence of P.W. 2 certainly must be true for if as stated by
the accused he had already met them at or about 9 a.m. on 29-9-1984 and told
D.W. 2, that already a telephone connection in his favour had been ordered by
the Area Manager, there was no need for him to have contacted P.W. 6 to find
out the position regarding his application. As soon as he knew from the Office
of the Area Manager, that allotment had been made, he had got in touch with
P.W. 6 once at 12 Noon and again at 1 p.m., as suggested by the Office of the
Area Manager. The evidence of P.W. 2, as stated earlier on this aspect, is not
only corroborated by the oral evidence of P.W. 6, but also by the documentary
evidence produced as Ex. P. 3. That the evidence of P.W. 2 must be true is
further strengthened by the evidence of P.W. 6 that he had informed A-1 over
the telephone at 2 p.m. on 29-9-1984 about the allotment of a telephone
connection to P.W. 2 with a direction to him to take further action. The
statement of A-1 that he was so informed by P.W. 6 only at 4-30 p.m. cannot be
accepted. If the prosecution case of A-2 having met P.W. 2 at 4 p.m. on
29-9-1984 is acceptable, as already found, the case of A-1, as though he knew
about this telephone connection only at 4-30 p.m. is not entitled to
acceptance.
37. Further the defence
evidence is completely divergent to the stand taken by the accused when they
were examined under Section 313, Cr.P.C. A-2 has accepted the statement of A-1
and had prayed the Court to treat the statement of A-1 as his, as well, along
with the additional circumstance of his not having visited the house of P.W. 2
on the evening of 29-9-1984, proved by the tell-tale sheet Ex. D-1. A-1 had
stated that be made a demand from P.W. 2 for donation of Rs. 300/- for the
Union Conference, which was readily acceded to by the latter. Thereafter A-2
wrote the name of P.W. 2 in three tickets, which fact was known to D.W. 2 and
Iswaran, not examined. P.W. 2 told him that he would pay later. When the
telephone connection was to be given. He directed A-2 to carry out the work
relating to P.W. 2’s telephone on the next day. He also directed D.W. 3, who
went for work in P.W. 2’s house, to collect the donation. Then he admits having
received Rs. 300/- from P.W. 2 which was a donation and not bribe. The evidence
of D.W. 2 is that the donation was asked for by A-2 and not by A-1. If, in
fact, A-1 had asked D.W. 3 to collect the donation, there was no need for him
to visit the house of P.W. 2 at 12 Noon on 1-10-1984. The very visit of A-1 and
A-2 at 12 Noon on 1-10-1984 taken in conjunction with the averments in Ex. P.
4, confirmed, by the substantive evidence of P.W. 2 in Court, leads to the only
conclusion, that in pursuance of the demand made by A-2 for a bribe on 29-9-1984,
both the appellants went to the house of P.W. 2 at 12 Noon on 1-10-1984, and
accepted it. It may not be possible generally, to reject the defence only
because it was inconsistent, but when the defence was palpably false, in the
background of onus cast on them, these conclusions become inevitable. The
foundation of the defence is shattered, since it is palpably false. The
prosecution on its own merit, sans defence, had established its case beyond
reasonable doubt against the appellants.
evidence is completely divergent to the stand taken by the accused when they
were examined under Section 313, Cr.P.C. A-2 has accepted the statement of A-1
and had prayed the Court to treat the statement of A-1 as his, as well, along
with the additional circumstance of his not having visited the house of P.W. 2
on the evening of 29-9-1984, proved by the tell-tale sheet Ex. D-1. A-1 had
stated that be made a demand from P.W. 2 for donation of Rs. 300/- for the
Union Conference, which was readily acceded to by the latter. Thereafter A-2
wrote the name of P.W. 2 in three tickets, which fact was known to D.W. 2 and
Iswaran, not examined. P.W. 2 told him that he would pay later. When the
telephone connection was to be given. He directed A-2 to carry out the work
relating to P.W. 2’s telephone on the next day. He also directed D.W. 3, who
went for work in P.W. 2’s house, to collect the donation. Then he admits having
received Rs. 300/- from P.W. 2 which was a donation and not bribe. The evidence
of D.W. 2 is that the donation was asked for by A-2 and not by A-1. If, in
fact, A-1 had asked D.W. 3 to collect the donation, there was no need for him
to visit the house of P.W. 2 at 12 Noon on 1-10-1984. The very visit of A-1 and
A-2 at 12 Noon on 1-10-1984 taken in conjunction with the averments in Ex. P.
4, confirmed, by the substantive evidence of P.W. 2 in Court, leads to the only
conclusion, that in pursuance of the demand made by A-2 for a bribe on 29-9-1984,
both the appellants went to the house of P.W. 2 at 12 Noon on 1-10-1984, and
accepted it. It may not be possible generally, to reject the defence only
because it was inconsistent, but when the defence was palpably false, in the
background of onus cast on them, these conclusions become inevitable. The
foundation of the defence is shattered, since it is palpably false. The
prosecution on its own merit, sans defence, had established its case beyond
reasonable doubt against the appellants.
38. Before closing the
consideration of the defence case, the evidence of the Handwriting Expert,
examined by me, will have to be considered. The evidence of the Expert is
categoric that the person who had written S-1 to S-15 had not written Q-1 to
Q-3. I have carefully perused the evidence of the Expert and I am satisfied
that the reasons given by him are acceptable. I am not taking the evidence of
the Expert as conclusive, to arrive at a conclusion, but I have taken his
opinion to lend assurance to my own study of the admitted and disputed
signatures. A close look at the admitted and disputed signatures with a
magnifying glass certainly shows that the author of Q-1 to Q-3 could not be
P.W. 2. The way in which the first four letter “Muru” have been
written in D-3 to D-5 portrays a mechanical immitation. Even the first letter
‘S’ is patently at variance, so also the penultimate letter ‘A’, and the letter
‘g’. It is, of course, true that the Expert has been cross-examined on, the
several movements, pen lifts, pen pressure, pen score, hesitation symptoms etc.
The answers given by the Expert, on the differences pointed out to him, as
natural variations, to my mind, is certainly acceptable. I am unable to agree
that P.W. 2 himself had sought to forge his signature, by writing differently,
in Exs. D-3 to D-5. When I consider the case law placed before me, I will refer
to the authoriative text books, on handwriting and finger prints with specific
reference to the passages brought to my notice by the learned counsel for the
appellants. Suffice to say that I am satisfied that P.W. 2 had not signed Exs.
D-3 to D-5 and the case of the defence that P.W. 2 had signed those documents
on 29-9-1984, has to be rejected, outright.
consideration of the defence case, the evidence of the Handwriting Expert,
examined by me, will have to be considered. The evidence of the Expert is
categoric that the person who had written S-1 to S-15 had not written Q-1 to
Q-3. I have carefully perused the evidence of the Expert and I am satisfied
that the reasons given by him are acceptable. I am not taking the evidence of
the Expert as conclusive, to arrive at a conclusion, but I have taken his
opinion to lend assurance to my own study of the admitted and disputed
signatures. A close look at the admitted and disputed signatures with a
magnifying glass certainly shows that the author of Q-1 to Q-3 could not be
P.W. 2. The way in which the first four letter “Muru” have been
written in D-3 to D-5 portrays a mechanical immitation. Even the first letter
‘S’ is patently at variance, so also the penultimate letter ‘A’, and the letter
‘g’. It is, of course, true that the Expert has been cross-examined on, the
several movements, pen lifts, pen pressure, pen score, hesitation symptoms etc.
The answers given by the Expert, on the differences pointed out to him, as
natural variations, to my mind, is certainly acceptable. I am unable to agree
that P.W. 2 himself had sought to forge his signature, by writing differently,
in Exs. D-3 to D-5. When I consider the case law placed before me, I will refer
to the authoriative text books, on handwriting and finger prints with specific
reference to the passages brought to my notice by the learned counsel for the
appellants. Suffice to say that I am satisfied that P.W. 2 had not signed Exs.
D-3 to D-5 and the case of the defence that P.W. 2 had signed those documents
on 29-9-1984, has to be rejected, outright.
39. While considering
Exs. D-3 to D-5, the trial Judge had taken note of the documents filed along
with the statement of A-1. Those documents show that A-1 had functioned as
President of the Southern Division between 1978 and 1984. It may, therefore, be
that A-1 was taking an active interest in the Union activities. However, as
rightly pointed out by the trial Judge, there is no material placed before the
Court to hold that A-1 had a leading role in organising the All India
Conference at Madras between 12th and 16th October, 1984. As stated earlier, we
do not have any evidence from the signatories, who were office-bearers, found
in those documents as having authorised the appellants to collect donation. It
may be that the defence need not have to prove its case by strict standards of
proof, as is expected of the prosecution, but, at the same time, when a partial
onus is thrust on them, the defence must basically inspire confidence, as
probable. That inspiration is not forthcoming in the defence trotted out in
this case.
Exs. D-3 to D-5, the trial Judge had taken note of the documents filed along
with the statement of A-1. Those documents show that A-1 had functioned as
President of the Southern Division between 1978 and 1984. It may, therefore, be
that A-1 was taking an active interest in the Union activities. However, as
rightly pointed out by the trial Judge, there is no material placed before the
Court to hold that A-1 had a leading role in organising the All India
Conference at Madras between 12th and 16th October, 1984. As stated earlier, we
do not have any evidence from the signatories, who were office-bearers, found
in those documents as having authorised the appellants to collect donation. It
may be that the defence need not have to prove its case by strict standards of
proof, as is expected of the prosecution, but, at the same time, when a partial
onus is thrust on them, the defence must basically inspire confidence, as
probable. That inspiration is not forthcoming in the defence trotted out in
this case.
40. In paras 16 and 19
I have already considered four of the cases relating to the appreciation of
evidence of hand-writing experts. Two other cases have been cited on this
aspect, which I will presently refer to.
I have already considered four of the cases relating to the appreciation of
evidence of hand-writing experts. Two other cases have been cited on this
aspect, which I will presently refer to.
41. In Iswari Prasad
Misra v. Mohd. Isa , the Supreme Court while considering S. 45 of the Indian
Evidence Act, regarding relevancy of opinions of experts held, that the
evidence given by experts of handwriting can never be conclusive, because it
was after-all opinion evidence. In that case the Supreme Court, sans the
evidence of the two experts, who contradicted themselves, arrived at the
conclusion that the evidence given by the attesting witnesses, the scribe and
the appellant, was wholly satisfactory to prove execution of the document by
the respondent and that the said evidence did not really need to be
corroborated by the opinion of experts. On facts, in this appeal, P.W. 2,
having denied his signatures in Exs. D-3 to D-5 and the evidence of D.W. 3
having been rejected, and my comparison of the admitted and the disputed
writings of P.W. 2, having been found to enure in favour of the prosecution,
the evidence of expert has played only a minor role, in helping me to arrive at
my conclusions. Further, the expert evidence has not been considered, for proof
of the prosecution case, but only to the limited extent of the defence case
being probable by preponderance.
Misra v. Mohd. Isa , the Supreme Court while considering S. 45 of the Indian
Evidence Act, regarding relevancy of opinions of experts held, that the
evidence given by experts of handwriting can never be conclusive, because it
was after-all opinion evidence. In that case the Supreme Court, sans the
evidence of the two experts, who contradicted themselves, arrived at the
conclusion that the evidence given by the attesting witnesses, the scribe and
the appellant, was wholly satisfactory to prove execution of the document by
the respondent and that the said evidence did not really need to be
corroborated by the opinion of experts. On facts, in this appeal, P.W. 2,
having denied his signatures in Exs. D-3 to D-5 and the evidence of D.W. 3
having been rejected, and my comparison of the admitted and the disputed
writings of P.W. 2, having been found to enure in favour of the prosecution,
the evidence of expert has played only a minor role, in helping me to arrive at
my conclusions. Further, the expert evidence has not been considered, for proof
of the prosecution case, but only to the limited extent of the defence case
being probable by preponderance.
42. In Ram Narayan v.
State of U.P. the Supreme Court held that the opinion of the handwriting expert
given in evidence was no less fallible than any other expert opinion, but such
opinion was worthy of acceptance if there was internal and external evidence
relating to the writing in question supporting the expert’s view. The question
in each case calls for determination on the Court’s appreciation of evidence.
Ultimately the facts unfurled in each case, would dictate to the Court, the
weight that could be attached to the evidence of expert in the light of its own
observation relating to the admitted and the disputed writings. As I have
already held, on reasons assigned by me that P.W. 2 had not written Exs. D-3 to
D-5, no further discussion on the expert’s evidence would be necessary.
However, reference to text-books cited by Sri N. T. Vanamamalai need mention.
H. R. Hardless in his book “Handwriting and Thumb-print Identification and
forensic Science, 1970 Edition, has stated at page 2 that a competent expert
assigns reasons for his opinion in a report. The reasons are specific and not
mere generalities and the points of similarity or dissimilarity marked and
indicated in the photographs are both apparent and appealing to laymen. An
expert’s opinion is accepted by a Court when the reasons given are both
apparent and convincing. At page 10 that Author has stated as follows :-
State of U.P. the Supreme Court held that the opinion of the handwriting expert
given in evidence was no less fallible than any other expert opinion, but such
opinion was worthy of acceptance if there was internal and external evidence
relating to the writing in question supporting the expert’s view. The question
in each case calls for determination on the Court’s appreciation of evidence.
Ultimately the facts unfurled in each case, would dictate to the Court, the
weight that could be attached to the evidence of expert in the light of its own
observation relating to the admitted and the disputed writings. As I have
already held, on reasons assigned by me that P.W. 2 had not written Exs. D-3 to
D-5, no further discussion on the expert’s evidence would be necessary.
However, reference to text-books cited by Sri N. T. Vanamamalai need mention.
H. R. Hardless in his book “Handwriting and Thumb-print Identification and
forensic Science, 1970 Edition, has stated at page 2 that a competent expert
assigns reasons for his opinion in a report. The reasons are specific and not
mere generalities and the points of similarity or dissimilarity marked and
indicated in the photographs are both apparent and appealing to laymen. An
expert’s opinion is accepted by a Court when the reasons given are both
apparent and convincing. At page 10 that Author has stated as follows :-
“These persons are
unaware of the fact that variations in the signatures of the same person must
exist in the forms of corresponding letters. A human hand is not a printing
machine to give exactitude in regard to forms of letters on all occasions and
under different occasions”.
unaware of the fact that variations in the signatures of the same person must
exist in the forms of corresponding letters. A human hand is not a printing
machine to give exactitude in regard to forms of letters on all occasions and
under different occasions”.
On these passages it
was argued that the expert has not specifically dealt with the similarities and
the opinion being general would be of no probative value. Further, in view of
the human hand not being a printing machine, allowances should have been given
by the expert on the features like pen pressure, pen score, pen lifts,
hesitation, quality of paper etc. As I have discussed earlier, the expert has
been cross-examined and I am satisfied, that he has offered his opinion, in the
background of these features and the variations pointed out by the defence
between the admitted and the disputed signatures, were only natural.
was argued that the expert has not specifically dealt with the similarities and
the opinion being general would be of no probative value. Further, in view of
the human hand not being a printing machine, allowances should have been given
by the expert on the features like pen pressure, pen score, pen lifts,
hesitation, quality of paper etc. As I have discussed earlier, the expert has
been cross-examined and I am satisfied, that he has offered his opinion, in the
background of these features and the variations pointed out by the defence
between the admitted and the disputed signatures, were only natural.
43. Mehta in his book
on “Handwriting Identification and Finger prints” has stated at page
38 that the pen pressure of a forged writing is usually not smooth and it shows
a varying density due to the constant interruptions in movement and speed. At
pages 47, 48, 49, 51 and 52 the Author refers to the writing habits viz., (1)
The movement of writing;
on “Handwriting Identification and Finger prints” has stated at page
38 that the pen pressure of a forged writing is usually not smooth and it shows
a varying density due to the constant interruptions in movement and speed. At
pages 47, 48, 49, 51 and 52 the Author refers to the writing habits viz., (1)
The movement of writing;
(2) The Pen position;
(3) The pen pressure;
(4) The shading;
(5) The relative
positions of the letters;
positions of the letters;
(6) The formation of
the letters;
the letters;
(7) The alignment;
(8) The spacing;
(9) The variations;
(10) The slant;
(11) The arrangement;
(12) The style;
(13) The condition of
the strokes;
the strokes;
(14) The size and
proportions; and (15) The general execution.
proportions; and (15) The general execution.
The Author states that
these are other technical reasons which are advanced by the experts. Though the
expert has been questioned in general on these aspects, specific passages from
the Authors had not been brought to his notice to furnish him an opportunity to
explain his opinion on that basis. The expert has stated in his evidence that
the characteristics in the handwriting in Exs. D-3 to D-5 differed
significantly from the standard handwriting, which included among other things
the five categories suggested by the defence. The expert has also answered that
he had noticed all the characteristics, though he had not specified them in the
report. I am satisfied that the dissimilarities noticed by him in the admitted
and the disputed writings would be sufficient to hold against the defence. To
arrive at my conclusion of dissimilarities, the expert’s opinion was to some
extent helpful and the findings against the accused are not based solely on the
evidence of the expert. Therefore, the discussion on expert’s evidence need not
have to detain us any more.
these are other technical reasons which are advanced by the experts. Though the
expert has been questioned in general on these aspects, specific passages from
the Authors had not been brought to his notice to furnish him an opportunity to
explain his opinion on that basis. The expert has stated in his evidence that
the characteristics in the handwriting in Exs. D-3 to D-5 differed
significantly from the standard handwriting, which included among other things
the five categories suggested by the defence. The expert has also answered that
he had noticed all the characteristics, though he had not specified them in the
report. I am satisfied that the dissimilarities noticed by him in the admitted
and the disputed writings would be sufficient to hold against the defence. To
arrive at my conclusion of dissimilarities, the expert’s opinion was to some
extent helpful and the findings against the accused are not based solely on the
evidence of the expert. Therefore, the discussion on expert’s evidence need not
have to detain us any more.
44. The Supreme Court
has considered the presumption under S. 4(1) of the Prevention of Corruption
Act and the essentials to be proved, in several of its pronouncements. The
consistent view is that to raise the presumption under Section 4(1) of the Act,
the prosecution has to prove that the accused had received gratification other
than legal remuneration. When it was shown that the accused had received a
certain sum of money, which was not his legal remuneration, the condition
prescribed by the section was satisfied and the presumption must be raised.
Further the more receipt of money would be sufficient to raise the presumption.
On the onus cast on the accused, the Supreme Court has held that the burden of
proof lying upon the accused under Section 4(1) of the Act would be satisfied
if he established his case by preponderance of probability, as is done by a
party in civil proceedings. It was not necessary that he should establish his
case by the test of proof beyond reasonable doubt. Useful reference could be
made in the following decisions :
has considered the presumption under S. 4(1) of the Prevention of Corruption
Act and the essentials to be proved, in several of its pronouncements. The
consistent view is that to raise the presumption under Section 4(1) of the Act,
the prosecution has to prove that the accused had received gratification other
than legal remuneration. When it was shown that the accused had received a
certain sum of money, which was not his legal remuneration, the condition
prescribed by the section was satisfied and the presumption must be raised.
Further the more receipt of money would be sufficient to raise the presumption.
On the onus cast on the accused, the Supreme Court has held that the burden of
proof lying upon the accused under Section 4(1) of the Act would be satisfied
if he established his case by preponderance of probability, as is done by a
party in civil proceedings. It was not necessary that he should establish his
case by the test of proof beyond reasonable doubt. Useful reference could be
made in the following decisions :
(1) ; (V. D. Jhignan v.
State of U.P.), (2) ; (C. I. Emden v. State of U.P.), (3) ; (Mansingh v. Delhi
Administration), (4) 1983 LW (Crl) Short Notes page 7 (R. Poova Gounder In Re.)
State of U.P.), (2) ; (C. I. Emden v. State of U.P.), (3) ; (Mansingh v. Delhi
Administration), (4) 1983 LW (Crl) Short Notes page 7 (R. Poova Gounder In Re.)
45. On the need and the
nature of corroboration required for demand and acceptance of illegal
gratification, the Supreme Court in State of U.P. v. G. K. Ghosh observed that
in a case of offence of demanding and accepting illegal gratification,
depending on the circumstances of the case, the Court may feel safe in
accepting the prosecution version on the basis of the oral evidence of the
complainant and the police officers, even if the trap witnesses turned hostile
or were found not to be independent. When deciding such evidence, if there was
circumstantial evidence, which was consistent with the guilt of the accused and
not inconsistent with his innocence, there should be no difficulty in upholding
the prosecution case.
nature of corroboration required for demand and acceptance of illegal
gratification, the Supreme Court in State of U.P. v. G. K. Ghosh observed that
in a case of offence of demanding and accepting illegal gratification,
depending on the circumstances of the case, the Court may feel safe in
accepting the prosecution version on the basis of the oral evidence of the
complainant and the police officers, even if the trap witnesses turned hostile
or were found not to be independent. When deciding such evidence, if there was
circumstantial evidence, which was consistent with the guilt of the accused and
not inconsistent with his innocence, there should be no difficulty in upholding
the prosecution case.
46. In Kishnanchand v.
State of Rajasthan the Supreme Court while dealing with the circumstantial
evidence in a bribery case, where the complainant had died prior to the
commencement of the trial, observed that the visit of the accused to the
factory of the complainant-demand of bribe by the accused from
complainant-visit of complainant and raiding party to the house of the accused
– accused asking complainant whether he brought money-the latter taking out the
currency notes from his diary and giving the same to the accused – accused
keeping them under pillow of his cot-recovery of currency notes and numbers
tallied with memorandum already prepared events subsequent to prior demand,
remaining unexplained by accused it could not be said that there was no
evidence of prior demand – accused could not be said to be unwilling victing
nor a pence sitter. In the same case the Supreme Court held, that so-called
inner variations between the evidence of those two witnesses (mahazar
witnesses) and omissions of trivial details, would not cause any dent in the
testimony of those two witnesses. The case on hand will be covered by this
decision with the additional circumstances of the availability of the evidence
of the complainant himself, who has been examined as P.W. 2.
State of Rajasthan the Supreme Court while dealing with the circumstantial
evidence in a bribery case, where the complainant had died prior to the
commencement of the trial, observed that the visit of the accused to the
factory of the complainant-demand of bribe by the accused from
complainant-visit of complainant and raiding party to the house of the accused
– accused asking complainant whether he brought money-the latter taking out the
currency notes from his diary and giving the same to the accused – accused
keeping them under pillow of his cot-recovery of currency notes and numbers
tallied with memorandum already prepared events subsequent to prior demand,
remaining unexplained by accused it could not be said that there was no
evidence of prior demand – accused could not be said to be unwilling victing
nor a pence sitter. In the same case the Supreme Court held, that so-called
inner variations between the evidence of those two witnesses (mahazar
witnesses) and omissions of trivial details, would not cause any dent in the
testimony of those two witnesses. The case on hand will be covered by this
decision with the additional circumstances of the availability of the evidence
of the complainant himself, who has been examined as P.W. 2.
47. In Prakash Chand v.
State , considering S. 8 of the Indian Evidence Act and the necessity for
corroboration of the evidence of the trap witness, the Supreme Court observed
that where circumstances justified it, a Court may refuse to act upon the
uncorroborated testimony of a trap witness. On the other hand, a Court may well
be justified in acting upon the uncorroborated testimony of a trap witness, if
the Court was satisfied from the facts and circumstances of the case that the
witness was a witness of truth. However, in Pannalal D. Rathi v. State of
Maharashtra the Supreme Court held that there could be no doubt that evidence
of the complainant should be corroborated in material particulars. After
introduction of S. 165-A of the Indian Penal Code, making the person, who
offers bribe, guilty of abetment of bribery, the complainant cannot be placed
on any better footing than that of an accomplice and corroboration in material
particulars connecting the accused with the crime has to be insisted upon.
State , considering S. 8 of the Indian Evidence Act and the necessity for
corroboration of the evidence of the trap witness, the Supreme Court observed
that where circumstances justified it, a Court may refuse to act upon the
uncorroborated testimony of a trap witness. On the other hand, a Court may well
be justified in acting upon the uncorroborated testimony of a trap witness, if
the Court was satisfied from the facts and circumstances of the case that the
witness was a witness of truth. However, in Pannalal D. Rathi v. State of
Maharashtra the Supreme Court held that there could be no doubt that evidence
of the complainant should be corroborated in material particulars. After
introduction of S. 165-A of the Indian Penal Code, making the person, who
offers bribe, guilty of abetment of bribery, the complainant cannot be placed
on any better footing than that of an accomplice and corroboration in material
particulars connecting the accused with the crime has to be insisted upon.
48. In a later case
reported in 1980 (II) SCWR 161 : (1980 Cri LJ 564). (Hazharilal v. State), the
Supreme Court observed that there was no rule of prudence which had
crystallised into a rule of law, nor indeed any rule of prudence, which
required that the evidence of such officers should be treated on the same
footing as evidence of accomplice and there should be insistence of
corroboration.
reported in 1980 (II) SCWR 161 : (1980 Cri LJ 564). (Hazharilal v. State), the
Supreme Court observed that there was no rule of prudence which had
crystallised into a rule of law, nor indeed any rule of prudence, which
required that the evidence of such officers should be treated on the same
footing as evidence of accomplice and there should be insistence of
corroboration.
49. In the State of
Gujarat v. Raghunath the Supreme Court had the following observations to make
(at page SC 1094; AIR 1985) :
Gujarat v. Raghunath the Supreme Court had the following observations to make
(at page SC 1094; AIR 1985) :
“…… In
appreciating oral evidence, the question in each case is whether the witness is
a truthful witness and whether there is anything to doubt his veracity in any
particular matter about which he deposes. Where the witness is found to be
untruthful on material facts that is an end of the matter. Where the witness is
found to be partly truthful or to spring from tainted sources, the Court may
take the precaution of seeking some corroboration, adequate and reasonable to
meet the demands of the situation, but a court is not entitled to reject the
evidence of a witness merely because they are government servants, who, in the
course of their duties or even otherwise, might have come into contact with
investigating officers and who might have been requested to assist the
investigating agencies. If their association with the investigating agencies is
unusual, frequent or designed, there may be occasion to view their evidence
with suspicion. But merely because they are called in to associate themselves
with the investigation as they happened to be available or it is convenient to
call them, it is no ground to view their evidence with suspicion. Even in cases
where officers who, in the course of their duties, generally assist the
investigating agencies, there is no need to view their evidence with suspicion
as an invariable rule ……..”, The net result of the law laid down by
the Supreme Court, is to the effect, that depending on the facts of each case
the need for corroboration of the trap witness or the attesting witness may
have to be decided and any need for corroboration, cannot be universally
relegated to a strait jacket formula. On facts, the evidence of P.W. 2 is not
only true, but has also been corroborated in material particulars by the
evidence of P.W. 3, whose presence at the time of trap, has been accepted by
the appellants. The contents of the first information report also corroborate
the oral evidence of P.W. 2. The actual passing of money by P.W. 2 to A-2 has
been noticed by P.W. 5, as well. I have no hesitation in accepting the evidence
of P.W. 2 which is corroborated in material particulars, by the evidence of
P.Ws. 3 and 5 and the other circumstantial evidence.
appreciating oral evidence, the question in each case is whether the witness is
a truthful witness and whether there is anything to doubt his veracity in any
particular matter about which he deposes. Where the witness is found to be
untruthful on material facts that is an end of the matter. Where the witness is
found to be partly truthful or to spring from tainted sources, the Court may
take the precaution of seeking some corroboration, adequate and reasonable to
meet the demands of the situation, but a court is not entitled to reject the
evidence of a witness merely because they are government servants, who, in the
course of their duties or even otherwise, might have come into contact with
investigating officers and who might have been requested to assist the
investigating agencies. If their association with the investigating agencies is
unusual, frequent or designed, there may be occasion to view their evidence
with suspicion. But merely because they are called in to associate themselves
with the investigation as they happened to be available or it is convenient to
call them, it is no ground to view their evidence with suspicion. Even in cases
where officers who, in the course of their duties, generally assist the
investigating agencies, there is no need to view their evidence with suspicion
as an invariable rule ……..”, The net result of the law laid down by
the Supreme Court, is to the effect, that depending on the facts of each case
the need for corroboration of the trap witness or the attesting witness may
have to be decided and any need for corroboration, cannot be universally
relegated to a strait jacket formula. On facts, the evidence of P.W. 2 is not
only true, but has also been corroborated in material particulars by the
evidence of P.W. 3, whose presence at the time of trap, has been accepted by
the appellants. The contents of the first information report also corroborate
the oral evidence of P.W. 2. The actual passing of money by P.W. 2 to A-2 has
been noticed by P.W. 5, as well. I have no hesitation in accepting the evidence
of P.W. 2 which is corroborated in material particulars, by the evidence of
P.Ws. 3 and 5 and the other circumstantial evidence.
50. The Supreme Court
in J. L. Surange v. State of Maharashtra held as follows (at page SC 358; AIR
1970 :-
in J. L. Surange v. State of Maharashtra held as follows (at page SC 358; AIR
1970 :-
“Held, that the
accused could be rightly convicted under Section 5(1)(d) and S. 161 Penal Code
as the circumstances found against the accused were (i) that he informed
complainant that his name was entered in the records although he kept the
entries open and his plea that he did so for demanding money for Small Savings
Certificates was wrong, (ii) No receipt was given by the accused to the
complainant for the amount received (iii) along with the amount he did not ask
for an application signed by the complainant for purchase of certificates which
was an essential thing. (iv) On the very first occasion when the accused was
asked by his superior authorities he did not put forward the explanation that
the alleged sum was received by him for purchase of certificates (v) the sum
was accepted not in the office or in the house of accused but at the house of a
third person (vi) there was nothing on the record to show that there was any
enmity between the accused and the complainant”.
accused could be rightly convicted under Section 5(1)(d) and S. 161 Penal Code
as the circumstances found against the accused were (i) that he informed
complainant that his name was entered in the records although he kept the
entries open and his plea that he did so for demanding money for Small Savings
Certificates was wrong, (ii) No receipt was given by the accused to the
complainant for the amount received (iii) along with the amount he did not ask
for an application signed by the complainant for purchase of certificates which
was an essential thing. (iv) On the very first occasion when the accused was
asked by his superior authorities he did not put forward the explanation that
the alleged sum was received by him for purchase of certificates (v) the sum
was accepted not in the office or in the house of accused but at the house of a
third person (vi) there was nothing on the record to show that there was any
enmity between the accused and the complainant”.
In this Appeal, we have
the following circumstances :
the following circumstances :
(1) A. 2 had informed
the complainant that a casual telephone connection had been allotted to the
latter and that complications in immediately providing telephone connection
could be overcome by payment of bribe of Rs. 300/- for him and A-1 which could
lead to the installation of of phone even on 1-10-1984 :
the complainant that a casual telephone connection had been allotted to the
latter and that complications in immediately providing telephone connection
could be overcome by payment of bribe of Rs. 300/- for him and A-1 which could
lead to the installation of of phone even on 1-10-1984 :
(2) The Statement of
A-2 to P.W. 2 that the non-payment of bribe as demanded would entail a delay in
the installation of the casual telephone connection;
A-2 to P.W. 2 that the non-payment of bribe as demanded would entail a delay in
the installation of the casual telephone connection;
(3) The Statement of
A-2 that both A-1 and A-2 would visit the house of the complainant on 1-10-1984
to receive the demanded amount and simultaneously give the phone connection;
A-2 that both A-1 and A-2 would visit the house of the complainant on 1-10-1984
to receive the demanded amount and simultaneously give the phone connection;
(4) The presence of the
appellants on 1-10-1984 at 12 Noon, at the residence of P.W. 2 in pursuance of
a prior arrangement and acceptance of Rs. 300/- by A-1 from P.W. 2.
appellants on 1-10-1984 at 12 Noon, at the residence of P.W. 2 in pursuance of
a prior arrangement and acceptance of Rs. 300/- by A-1 from P.W. 2.
(5) On the very first
occasion when A-1 was questioned by P.W. 5, he did not put forth an
explanation, as though the alleged sum was received by him as a donation for
the Annual Conference;
occasion when A-1 was questioned by P.W. 5, he did not put forth an
explanation, as though the alleged sum was received by him as a donation for
the Annual Conference;
(6) Not having
intimated their higher authorities about the receipt of Rs. 300/- as donation,
by the appellants, though they had received a copy of Ex. P. 9, the seizure
mahazar, which contains the details of Rs. 300/- having been paid by P.W. 2 as
a bribe; and, (7) There was nothing on record to show that there was any enmity
between the accused and the complainant.
intimated their higher authorities about the receipt of Rs. 300/- as donation,
by the appellants, though they had received a copy of Ex. P. 9, the seizure
mahazar, which contains the details of Rs. 300/- having been paid by P.W. 2 as
a bribe; and, (7) There was nothing on record to show that there was any enmity
between the accused and the complainant.
These circumstances
clinchingly connect the appellants with the crime and more so when the defence
has been rejected as a complete afterthought.
clinchingly connect the appellants with the crime and more so when the defence
has been rejected as a complete afterthought.
51. A Division Bench of
the Gujarat High Court in Sumanlal v. State of Gujarat (1977 Cr. LJ 626) while
considering the scope of S. 161 of the Indian Penal Code, held that amount
received by a public servant from the complainant, for doing an official act,
even if received as contribution to Flag Day Fund, the case filed under Section
161, IPC, and the conviction under Section 161 read with S. 5(2) of the
Prevention of Corruption Act were justified. If a public servant insisted upon
a particular payment, which did not amount to a legal remuneration as
consideration for discharge of his duties, he did commit an act amounting to an
offence, even though it was found that he had received the amount not for his
personal purpose, but for a charitable purpose. Discharge of duties, which are
of public nature, cannot be refused and any payment a condition precedent
cannot be imposed, however laudable the cause may be.
the Gujarat High Court in Sumanlal v. State of Gujarat (1977 Cr. LJ 626) while
considering the scope of S. 161 of the Indian Penal Code, held that amount
received by a public servant from the complainant, for doing an official act,
even if received as contribution to Flag Day Fund, the case filed under Section
161, IPC, and the conviction under Section 161 read with S. 5(2) of the
Prevention of Corruption Act were justified. If a public servant insisted upon
a particular payment, which did not amount to a legal remuneration as
consideration for discharge of his duties, he did commit an act amounting to an
offence, even though it was found that he had received the amount not for his
personal purpose, but for a charitable purpose. Discharge of duties, which are
of public nature, cannot be refused and any payment a condition precedent
cannot be imposed, however laudable the cause may be.
52. On facts, I have
held that the defence case of Rs. 300/- having been paid as donation for the
Conference was not entitled to credence. The case law put forth before me by
the appellants does not help them. The evidence extracted in detail by me
certainly indicate that the appellants had acted in unison and it will not be
possible to exclude either of them from the charges framed against them. The
judgment of the Trial court convicting the appellants as charged is perfectly
justified, and needs no interference. The sentence imposed is only the minimum
sentence, which has to be unhasitatingly sustained. The appeal fails and it is
dismissed.
held that the defence case of Rs. 300/- having been paid as donation for the
Conference was not entitled to credence. The case law put forth before me by
the appellants does not help them. The evidence extracted in detail by me
certainly indicate that the appellants had acted in unison and it will not be
possible to exclude either of them from the charges framed against them. The
judgment of the Trial court convicting the appellants as charged is perfectly
justified, and needs no interference. The sentence imposed is only the minimum
sentence, which has to be unhasitatingly sustained. The appeal fails and it is
dismissed.
53. Appeal dismissed.
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AS
– 30122019
– 30122019