Holding

The self‑imposed restriction on re‑appreciation of evidence in a special‑leave appeal is not jurisdictional, and where serious injustice would result the Court may examine the evidence; finding material discrepancies and lack of powder‑treatment, the conviction was set aside and the appellant acquitted.

Summary

Khilli Ram, a Head Constable, was convicted under IPC s.161 and the Prevention of Corruption Act (sections 5(1)(d) and 5(2)) for allegedly accepting a bribe in a police‑trap. The prosecution relied on a decoy witness, two panch witnesses and several police officers, but many of these witnesses turned hostile or gave statements supporting the defence. The Court noted material discrepancies, the absence of the required powder‑treatment of the marked currency notes, and the implausibility of a uniformed constable accepting a bribe in the circumstances. It held that the Supreme Court may re‑appreciate evidence on a special‑leave appeal where serious injustice would otherwise occur, despite a self‑imposed restriction. Finding the prosecution evidence unreliable, the Court set aside the conviction and acquitted the appellant.

Issues considered

Whether the Supreme Court may re‑appreciate evidence on a special‑leave appeal despite the usual self‑imposed restriction.
Whether the prosecution evidence, including hostile witnesses and lack of powder‑treatment of marked notes, is sufficient to sustain conviction under IPC s.161 and the Prevention of Corruption Act s.5(1)(d) and s.5(2).
Whether the procedural requirement of powder‑treatment of marked currency notes in a trap is mandatory for conviction.
Whether the discrepancies in witness testimonies create reasonable doubt warranting acquittal.

Legislation cited

Indian Penal Code, 1860s. 161
Prevention of Corruption Act, 1947s. 5(1)(d), s. 5(2)

Subjects

briberypolice trapevidence appraisalspecial leave appealpowder treatmentPrevention of Corruption ActIndian Penal Codehostile witnessesacquittal

Judgment

1136
i
i' -

KHILLIRAM

v.

STATE OF RAJASTHAN

. October 30, 1984 •

(D. A. DESAI AND RANGANAnI MISRA, JJ.J

Constitution of India 1950, Article 136, Special leal'e to appeal-Appreciation
of evidence-Not a jurisdictional bar-Where serious injustice would be done evi-
dence nuzy be looked into/Indian Penal Code 1860~ Section 161 &: Prevention of
Corruption Act 1947, Sections S(l)(d) and 5(2)

Offence under-trap arranged for giving bribe-Acceptance of gratijicatio11-
Evidence and proof.powder treatment process with regard lo currency notes-Not ·
/ollowed-Accusei whether entitled to be acquitted,

Practice&: Procedure : Supreme Court-Special leave to appeal-Appre-
ciation of evidence-When arises ..

The proseCutlon aJieged that PW 2 had given a First Jnformation Report
of two offences but appropriate investigation was not being done and charae-
sheet wai not beina furnished to the Court. When PW. 2 contacted the AppeJlant
-the Head Constable of the Police Station. he demanded money. PW. 2 there-
UPon informed the Anti-Corruption Department about the demand and the
. Deputy Superintendent of Police agreed to Jay a trap. Details were fixed and the
trap was laid. An amount of Rs. 50 was passed on as the bribe. Five currency
notes each of Rs. 10 denomination with marked initials were made over to
PW. 2 to be given as bribe to the accused. The prosecution further alleged that
the accused came pursuant to the request and the money was passed on and the
payment of bribe was duly dete~ed.

I'
The Special Judge accepted the prosecution case. convicted the Appellant
, under section I '1 of the I0dian Penal Code as also section S(J)(d) and section
•
5(2) of the Prevention of Corruption Act. 1947 and imposed a consolidated sen..
tence of two years' rigoroUS imPrisonment. The conviction and sentence were
upheld in appeal by the Hiah Court.

Allowin1 the Appeal, to this Court,

HELD : t. The restriction on appreciation of evidence in an appeal by
1peciaJ leave i1 a self.imposed one and is not a juri!:dictional bar. Whileordnai
kinttI RAM v. RAJAStiIAN 1137
rily this Court would refrain from re-examining the evidence in a ca~e where A
serious injustice would be done if the evidedce is not looked into it would not
be proper for the Court to shun attention by following the self-imposed restric-
tion. [1140 CJ

Ram Prakash Arora v. State of Punjab, [1972] Crl. L. J. 1293 and State of
Bihar v. Basawan Singh [1959] S.C.R. 195; referred to.
B
In the instant case, certain important features have been overlooked both
by the trial Court as also by the High Court. The two panch witnesses have not
only turned hostile, but have disclosed facts which support the defence version
•• of the incident. PW. 2, the decoy witness has stated facts which probabilise the
defence stand. Even the literate Constable-PW. 7 who has not been declared
hostile has supported the defence version. The place and the manner in which
the bribe is said to .have been offered and received make the prosecution story
totally opposed to ordinary human wnduct. [1139 H; 1140 A·Bl c
2. Sufficient material ha5 been brought out to merit inlerference. The
evidence of 1he panchas is not available to support the prosecution case. There
is discrepancy in many material aspects. The prosecution story is opposed to
ordinary human conduct. The discrepancies go to the root of the matter and if
properly noticed "ould lead any court to discard the prosecution version. With-
out powder treatment, for the absence of which no explanation has been advan- D
ced the prosecution story becomes liable to be rejected. An overall assessment
of the matter indicates that the story advanced by the prosecution is not true
and the defence version seems to be n1ore probable. The conviction of the
appe1lant ii therefore set aside and he is acqllitted. He is discharged from his
bail bond. [1145 C-E]

-
·.~
E
Prakash Chand v. State (Delhi Administration), [1979] 2 S.C.R. 330 and
K~shan Chand Mango/ v. State of Rajasthan [1982] 3 S.C.C. 466; referred to.

3, The accused was, according to the prosecution eviden~, in full uni-
form. He had been called up to the bus stand which is a public place. There
is evidence to show that there were many people moving around and the area
was crowded. There is also evidence that the place where PW. 2 met the accused F
with the money was close to a hotel where people were standing. In such a sur-
rounding a police-man in uniform would ordinarily not accept a bribe. The
police station was not far away and if the accused wanted actually to receive the
bribe he would try to choose a better environment for it than the one where the
bribe is said to have been given. Human compunction would not permit a man
in the position of the accused to behave in the manner prosecution has pictured
him to have. There is also evidence that the rnoney had not really been received
by the accused and P\V. 1 raised shouts that the bribe had been accepted before G
the amount was paid. PW. 3 has also stated that he did not sec anybody giving
or taking illegal gratification. (1143 B-D]

4. There is no material at all on the record to explain why the powder
treatment process was not followed even though the detection is alleged to have
been handled by experienced people of the Anti·Corruption Department. It is
diffi.tult to accept the position that PW. 6 was not aware of the powder treat- H
113$ SUPRliME COURT RFPORTS [1985] 1 s.~.lt

A ment. It has been in vogue for well over three decades. If such powder treat-
ment had been made the passing of the bribe would indeed not have been
difficult to be proved. (1145 A-BJ

Raghbir Singh v. State of Punjab 1916 Cr!. L J. 172, referred to.

B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 50
of 1976.

Appeal by Special leave from the Judgment and order dated
the 2nd October, 1975 of the Rajasthan High Court in S.B. Criminal
Appeal No. 850 of 1971.
c
V.B. Raju and N.N. Sharma for the Appellant.

Badri Das Sharma for the Respondent

The Judgment of the Court was delivered by
D
RANGANATH MrsRA J. This appeal by special leave seeks to assail
the conviction of the appellant under section 161 of the Indian Penal
Code as also section 5(1) (d) and section 5(2) of the Prevention of
Corruption Act, 1947 ('Act' for short), and a consolidated sentence

E
of two years' rigorous imprisonment. Appellant's conviction by the
Special Judge has been upheld in appeal by the Rajasthan High
....
Court.
-
Appellant at the relevant time was a Head Constable attached
to the Bhusawar Police Station within the District of Bharatpur.
Prosecution alleged that PW. 2 Ram Swaroop had given first Infor-
F mation Report of two offences but appropriate investigation was
not being furnished to the Court. He had approached Shanker Lal,
Head Constable attached to the Police Station and had, on demand,
paid him some money by way of bribe to expedite submission of the
charge-sheet, Shankar Lal got transferred and appellant came in his
place. Wneh contacted, appellant also demanded money. PW. 2
thereupon informed the Anti Corruption Department abont the
G
demand and Kastoori Lal, Dy. Superintendent of Police attached to
tht Anti Corruption Department at Jaipur agreed to lay a trap.
Details were fixed up and the trap was laid on March 30, 1969. An
amount of Rs. 50 was to be passed on as the bribe. Five currency
notes each of Rs. 10 denomination with marked initials were made
H over to PW. 2 to be given as bribe to th• accused. For that purpose
kHILLI RAM v. RAiASIBAN (Ranganath Misra, J.) 11~9

Ram Swaroop, PW. 2, Kastoori Lal, PW. 6, Prabhu Dayal, a literate A
Constable attached to the Anti Corruption Department, PW. I,
accompanied by two Panch "itnesses Girdhari, PW. 3 and Gulji,
PW. 4 came to Bhusawar. Ram Swaroop came to the bus stand
adjacent to the Police Station. Banshi Kumar, the waterman at the
bus stand (DW. I) was requested by PW. 2 to inform the accused at
the Police Station that he (Ram Swaroop) had come prepared for B
the purpose as arranged earlier and accused should came and contact
him. Prosecution further alleged that the accused come pursuant
to the request and the money was passed on and the payment of bribe
was duly detected. In due course sanction was obtained and the case
came up for trial before the Special Judge. Prosecution led evidence
of 8 witnesses-five as indicated above and PW. 5, the Superinten- c
dent of Police (Intelligence), Jaipur; PW. 7 Kedar Nath, a literate
Constable attached to the Bhusawar Police Station and PW. 8 the
Superintendent of Police, Bharatpur, who proved sanction for the
prosecution. Certain documents were also produced to support the
charge. Defence examined four witnesses in support of its stand that
the accused had not received any bribe and he was falsely implicated
without any basis. The Special Judge accepted the prosecution case D
and convicted the appellant in the manner already indicated. His
appeal to the High Court has failed.

Ordinarily the Supreme Court does not ente1 into re-apprecia-
tion of evidenee in exercise of its jurisdiction under Article 136 of the
Constitution (see Ram Parkash Arora v. State of Punjab).''' It is also E
true that in the case of State of Bihar v. Basawan Singh"' a five
Judge Bench of this Court has laid down that if any of the witnesses
are accomplices, their evidence is admissible in law but the Judge
should indicate in his judgment that he had the rule of caution in
mind-namely, the danger of convicting the accused on the uncorro- F
borated testimony of an accomplice and give reasons for considering
it unnecessaro/ to require corroberation; if, however, the witesses
are not accomplices but are merely partisan or interested witnesses,
who are concerned in the success of the trap, their evidence must be
tested, in the same way as ·any other interested evidence is tested,
and in a proper case, the Court may· look for independent corro-
boration before convicting the accused person. G

There are certain features in this case which appear to have
been overlooked both by the trial Court as alao the High Court. The

(I) (1972) Crl. L.J. 1293.
13) l,IJl.5.~1 S&.B I~,,
1i40 SUPREME COuRT REPORTS (1985) I s.c.tt

A two panch witnesses have not only turned hostile, but have
disclosed fact which support the defence version of the incident. PW.
2, the decoy witness has stated facts which probabilise the defence
stand. Even the literate Constable PW. 7 who has not been declared
hostile has supported the defence version. The place and the manner
in which the bribe is said to have been offered and received make
B the prosecution story totally opposed to ordinar} human conduct-a
feature which the two Courts have overlooked. We are of the opinion
that this is a case where the evidence has to be looked into with a
view to finding out whether the prosecution case can at all be
accepted. The restriction on appreciation of evidence of an appeal by
special leave is a self-imposed one and is not · a jurisdictional bar. ....
While we reiterate that ordinarily this Court would refrain from re-
c examining the evidence, in a case where serious injustice would be
done if the evidence is not looked into it would not be proper for the
Court to shun attention by following the self-imposed restriction.

Prosecution has examined 8 witnesses in all. PW. S, as already
noted, is the Superintendent of Police (Intelligence) at Jaipur who is
D
not a material witness at all. Similarly, PW.8 being the Superinten-
dent of Police of Bharatpur, is connected with sanction for prosecu-
tion and is not material for any other purpose. This leaves six
witnesses in the field. Of them, PWs. 1 and 6 are· of the Anti
Corruption Department, PW. 1 being a literate Constable attached to
that establishment and PW. 6 being the Dy. Superintendent of Police
...
E
under whose active supervision the trap was laid. PW. 2 is the decoy
witness himself on whose report the trap was laid. PWs. 3 and 4 are
the Panch witnesses and PW. 7 is a literate Constable attached to the
Police Station.

F PW. 2 is a supplier of water at the bus stand like DW. I. From
his own evidence 1t appears that he has been involved in laying of
traps. In his cross-examination he has admitted : "before this
occurence, I took the Dy. S. P. for arresting another employee
Shankerlal. The statement A V in Ex. P. i was given by me in the
presence of the Deputy Sahib." He seems to have made two other
complaints before the police and those were found to be false and
G
police had already decided to prosecute him under s. 182, l.P.C. It is
after that incident that present move had been taken. PW. 2 has
admitted in his cross-examination : "Prior to this I took the Deputy
Sahib to get Shankerlal caught but Shankerlal could not be caught
and the Deputy said that you have harassed me for nothing." It is
H the case of the prosecution that Shankerlal was the Head Constable
KHILLI RAM v. RAJASTHAI' (Ranganath Misra, J.) 1141

attached to the police station and that PW. 2 had negotiated with A
him. PW. 3 who is a Panch witness has stated that the Deputy Supe-
rintendent of Police had told him that Ram Swaroop was giving
illegal ·gratification to Shankerlal. PW. 3 was previously employed
in the Police Department, and had been discharged. According to
him, the name of the accused was never discussed and even at the·
B
time of payment it was Shankcrlal who was supposed to receive the
bribe. PW. 3 has said that he is not a literate person and his state-
ment and signature had been extracted from him under pressure.
PW. 4, the other Panch witness has similarly stated that he had been

.. told that Shankerlal was to be bribed and he made no statement with
reference to the accused. In view of this evidence it becomes doubt-
ful whether the Panch witnesses had really anything to do with the
c
offer of \lribe to the present accused. Since PW. 2 admitted the
position that the Deputy Supe1intendent of Police had been taken
previously in respect of a bribe to Sbankerlal and the two Panch
witnesses have referred to that incident, it appears logical to infer
that these two witnesses were really referring to the other incident.
The ·defence version seems to be that tbe trap had been arranged with D
reference to Sbankerlal. Ram Swaroop on reachin& the bus stand
requested DW. I to ask Shankerlal to come but since Shankerlal was
absent from the Police Station, the accused who was the senior-most
of the lot then available within the police station came out. This
part of the defence story has been supported by PW. 7 Kedar Nath,
a Constable attached to the Police Station, He in his cross-exami- E
.. nation has stated : "Banshi Kumar said that Shankerlal Head Cons-
table is being called at the stand. There I, Babu Ram, Constable
and Khilli Rarri (accused) were present. We said, 'Khilli Ram, you
being the Head may go'. Accordingly he went." To that effect is
the evidence of DW. I, the person whose services Ram Swaroop had
admittedly taken to call the accused from the police station. He F
stated : "Shankerlal was sent for from the police station at 6 p.m.
2 years 20 days ago. Then one more person was with him. I went
to the Police station Bhusawar. Shankerlal was not found there.
The two constables and the accused present in the Court were there.
On the advice of the police constables the accused accompanied me
to the bus stand." The evidence of PW. 7 and DW. I thus clearly
G
support the position we have indicated above. It is quite probable,
therefore, that PW. 2 had negotiated v.ith Shankerlal only and so far
as the accused is concerned there was no negotiation and he had
come out to the bus stand after being told by DW. I in the manner
and circu111sta1wes indicated ,bY PW. 7 and DW. !. If that be so,

"
1142 SUPREME COURT REPORTS [1985] l s.C.R.

A implicating the accused for the offence of receiving bribe would be
without any basis.

PW. 2 stated in his evidence that the appellant had demanded a
sum of Rs. 100. When this v,as pointed out. to him in cross-
examination he stated that the accused demanded Rs. 100 from him
B
for taking out the application and this was settled between to be paid
to the accused. This part of the story runs counter to the deposition
of PW. 6 who stated : "Ram Swaroop came to my office on 30.3.69
and said that Shankerlal has been transferred and in his place Khilli
Ram, Head Constable has came and the latter has settled with me to
c accept bribe of Rs. 50." The discrepancy is indeed a material one
in the facts of the case..

The defence of the appellant has all throughout been ·that he
never received any bribe. PW. 1 in his evidence in chief has stated
that the Deputy Superintendent of Police demanded the bribe amount
D to be taken out and the accused stated that he had not received the
amount. To the same effect is the evidence of PW. 2. This evidence
of PWs. 1 and 2 makes it clear that the first reaction of the accused
when accosted was a denial of receipt of any bribe. That has reite-
rated the same in his examination under s. 342, Cr. P. C. According
to the defence version of the matter there was really no passin& of
E any money. PW. 1, the Constable accompanying the Dy. Superinten-
dent of Police, according to the prosecution, searched the person of
the accused and found the five currency notes. There is no accep-
table evidence that the Constable had given search of his person
before he started searching the person of the accused. PW. 6, the
Dy. Superintendent of Police was at a distance. He had not seen the
actual passing of the money. Once PWs. 3 and 4 the Panch witnesses
did not support the prosecution case, the only evidence for the passing
of the money bas to rest is of PWs. 1 and 2. Both of them were
vitally interested in the fate of the prosecution and would, therefore,
be disposed to support the prosecution case. We have already indi-
cated that PW. 2 was anxious to satisfy the police as he was about to
face the prosecution under s. 182, l.P.C. for having made false alle-
G
gation in two cases. The Deputy Superintendent of Police has stated
that he bad taken PW. 2 to task for having brought him once to
Bhusawar on the allegation that Shankerlal was to receive the bribe
and that had failed. In these circumstances it is quite likely that
these two witnesses would go out 9f thi;ir way to support the prosi;-
R cution version.
KRILL! RAM v. RAJRSTAAN (Ranganath Misra, J.) 1143

If Shankerlal was the person with whom PW. 2 had negotiated A
in the matter of taking of the bribe, it would indeed be difficult to
accept, the position that the accused readily agreed to receive the
amount when offered. The accused was, according to the prosecution
evidence, ir full uniform. He had been called up to the bus stand
which is a public place. There is evidence to show that there were
many people moving around and the area was crowded. There is B
also evidence that the place where PW. 2 met the accused with the
money was close to a hotel where people were standing. In such a
surrounding a police man in uniform would ordinarily not accept a
bribe. The police station was not far away and if the accused wanted
actually to receive the bribe he would try to chose a better environ-
ment for it than the one where the bribe is said to have been given.
Human compunction would not permit a man in the position of the c
accused to behave in the manner prosecution has pictured him to
have. There is also evidence that the money had not really been
received by the accused and PW. I raised shouts that the bribe bad
been accepted before the amount was paid. PW. 3 bas narrated this
part of. the story thus. . D

"There the Deputy Sahib and we all stood at on place
and Ram Swaroop (PW. 2) and Prabhu Dayal (PW. I)
went towards the police station. Both had some talks.
Prabhu Dayal remained this side and Ram Swaroop went
inside the police station. Ram Swaroop returned and looked E
here and there. In the meantime Prabhu Dayal constable
shouted that the money has been found, come on ; come
on ... "

PW. 4 stated that he did not see anybody giving or taking
illegal gratification. OW. I has stated : F

"I told pointing toward Ram Swaroop and his compa-
nions that they are summoning. Thereupon the companion
of Ram Swaroop (referreing to Prabhu Dayal) shouted near
the 'Imli' tree that 'caught, caught'. He took out from the
pocket of his pant notes like and putting them in his hand G
shouted, 'caught, caught'."

OW. 3 the hotelier has stated : "I and the Inspector went
together, then the notes were in the hand of a Constabie." He has
further said that the Constable wa• shouting that the amount had
been recovered from Khilli Ram. OW. 4, an independent witness q
1144 SUPREME COURT REPORTS [1985] ! S.C.R.

A described this part of the story thus : "At the same time, Banshi
waterman and Kiili Ram accused present in the Court came from the
side of Police Station. The man standing near Ram Swaroop
(obviously Prabhu Dayal), shouted : 'caught, cauglit'. He took out
the currency notes of Rs. 50 from his (witness') pocket and raised
this alarm." In cross-examination this witness stated that the person
B who raised the cry said that the notes have been recovered from
Khilli Ram but Khilli Ram was saying that he did not take the notes.

Two other aspects are relevant to be indicated here. According
to PW. 1, Kastoori Lal, the Deputy Superintendent of Police ordered
him to take the search of the accused whereupon he proceeded to do
c the needful. PW. 2, however, stated that it was the Dy. Superinten-
dent of Police who recovered the notes from the accused. PW. 6 has,
however, indicated that under his orders search was conducted by
PW. !. . There is again material discrepancy as to from where the
amount was recovered. PW. 2 has stated that the accused kept the
notes of Rs. 50 given by him in the left side pocket of his shirt.
PW. 6 has stated : "When Prabhu Dayal conducted the search of the
D accused, Ext. P-1, 2, 3, 4 and 5 notes of the denomination of Rs. IO
each were found out from the right side pocket of the shirt of the
accused." Ext. P-1 is the recovery memo purported to have been
prepared att he spot. It indicates : "Then the settled five currency
notes of the denomination of Rs. 10 each were recovered from the
right hand pocket of the worn shirt of khaki uniform." There is thus
E
a discrepancy as to the place from where recovery was mado.

It was pointed out by this Court in Raghbir Singh v. State of ~
Punjab 111 :

F "Where a trap is laid for a public servant, it is desirable
that the marked currency notes which are used for the pur-
pose of trap, are treated with pheuolphthalein powder so
that the handling of such marked currency notes by the
public servant can be detected by chemical process and the
Court does not have to depend on oral evidence which is
sometimes of dubious character for the purpose of deciding
G the fate of the public servant."

Ordinarily in cases of this type the powder treatment is made.
There is no material at all on the record to explain why such a

ff !. [1976] Crl. L.J. 11z.
KHILLI RAM v. RAJASTHAN (Ranganath Misra, J.) 1145

process was not followed in the instant case even though detection is A
alleged to have been handled by experienced people of the Anti
Corruption Department. PW. 6 was a very senior officer and in fact
by the time the trial took place he had retired from service. It is
difficult for us to accept the position that he was not aware of the
powder treatment. It has been in vogue for well over three decades B
now. If such powder treatment had been made, the passing of the
bribe would indeed not have been difficult to be proved.

We are prepared to agree with counsel to the State of Rajastban
that ordinarily a case of type is difficut to prove and the law is settled
that even the uncorroborated testimony of trap witnesses can be acted c
upon as indicated by this Court in the case of Prakash Chand v. State
(Delhi Administration)"l, and Kishan Chand Manga/ v. State of
Rajasthan"l, but in the present case the evidence of the panchas is not
available to support the prosecution case. There is discrepancy in
many material aspects.· The prosecution story is opposed to ordinary
human conduct. The discrepancies go to the root of the matter and
if properly noticed would lead any court to discard the prosecution D
version. Without powder treatment, for the absence of which no
explanation has been advanced, the prosecution story becomes liable
to the rejected. An overall assessment of the matter indicates that
the story advanced by the prosecution is not true and the defence
version seems to be more probable. In these circumstances we are
of the view that sufficient material bas been brought out to merit E
• interference in this appeal. We allow the appeal, set aside the con-
viction of the appellant. and acquit him. He is discharged form his
bail bond.

Appeal allowed.

(I) [19791 2 S.C.R. 330.
(l) ]19112J 3 s.c.c. 466.