15.

It is true that ordinarily, as a matter of practice, this Court does not review the
evidence and disturb concurrent findings of fact unless those findings are clearly
unreasonable or are vitiated by an illegality or material irregularity of procedure or are
otherwise contrary to the fundamental principles of natural justice and fair-play. The
instant case is one which falls within the exception to this rule. As shall be presently
discussed, the courts below have adopted a basically wrong approach. They have not only
used the statement of certain witnesses in a manner which is manifestly improper or
impermissible under the law, but have also erred in accepting the testimony of the
interested witnesses without due caution and corroboration, requisite in the peculiar
circumstances of the case. It is therefore, necessary to have another look at the evidence
and the salient features of the case.

16. We will begin with the evidence of the trap witnesses. They are Ramesh PW 1, Dal
Chand, PW 7, and Inspector Parasnath, PW 9. It cannot be gainsaid that all the three were
concerned with the success of the trap, and, as such, were interested witnesses. What the
courts below appear to have failed to note is that qualitatively, the evidence of these
witnesses, particularly P. Ws. 1 and 7, was far inferior than the testimony of an ordinary
interested witness. While the trial court was unduly indulgent and modest in allowing
these witnesses to pass under the euphemistic title of "questionable and shady" characters,
the High Court overlooked their antecedents altogether.

17. Evasive denials of Ramesh and 'company' notwithstanding, sufficient material has
been brought on the record from which it is clearly discernible that PWs Ramesh and Dal
Chand are pimps and they were haunting the Railway Station to solicit customers for Mst.
Maya and Mst. Jayna.

18. The facts which have been elicited from Ramesh and company in cross-examination
are these: There is an accommodation, comprising of one Hall, and side-rooms on G. B.
Road which is known as the Kotha (brothel) of Mst. Maya. Mst. Jayna, Mst Maya and
one Mst. Lachmi have been living together in these premises for the previous 8 or 9 years
The rent of these premises for all the occupants is being paid by Mst. Maya. Mst. Lachmi
is the mistress of Ramesh and the latter lives on her 'professional' income. Mst. Maya is
the keep of Dal Chand who maintains her servant, Mst. Jayna, also. Ramesh also claims
to be a servant of Mst. Maya. He also lives in the Kotha (vide Dal Chand PW 7). Dal
Chand claimed that he was living separately at Pahar Ganj. But he admitted that he has
been frequently visiting the Kotha of Maya, and on the day of occurrence, also, he was
there when, according to the witness, Mst. Maya came and informed him about the
demand of the bribe by the appellant. Dal Chand stated that Ramesh was only a brother
by courtesy. He admitted that Ramesh, Maya and Jayna were arrested by the Police under
the Suppression of Immoral Traffic Act, and the charge against him and Ramesh was that
they were pimps and their women companions were carrying on the profession of
prostitution. He further admitted that in 1966, Mst. Maya was convicted under the said
Act by a Delhi Magistrate. Ramesh and Maya both were being jointly prosecuted (on the
date of their examination) for an offence under the said Act. It is further admitted (vide,
Ramesh) that one Mst. Mumtaz, a dancing girl of Bombay, is their friend and she
frequently comes and stays in the kotha of Mst. Maya. Ramesh was convicted for an
offence under the Gambling Act, also.
19. Viewed against this background, the suggestion made by the defence in cross-
examination, to these witnesses, that they were loitering at the Railway Station to procure
customers for their immoral business, could not be said to be devoid of substance. The
purpose of their visit to the Railway Station at that busy hour, according to them, was to
see Mst. Mumtaz who was then expected to arrive from Bombay by train. This Mumtaz
was not produced by the prosecution, though she was repeatedly summoned. In the
circumstances, the defence version, that these persons were roaming there to hawk their
"wares" does not fall beyond the orbit of reasonable probability. The above circumstances
further lend assurance to the appellant's plea that he had on several occasions, previously,
reprimanded these witnesses for visiting the Railway Station for immoral trade. Even,
according to the prosecution, the appellant had rounded up Ramesh and party on the
accusation that they were soliciting; customers for their immoral business. Dal Chand
stated that on being questioned by Inspector Parasnath, the appellant, explained that since
Ramesh was found loitering at the Railway Station in suspicious circumstances, he had
been brought for interrogation. This explanation receives confirmation from Ramesh who
stated that the accused had questioned him about the purpose of their visit to the Railway
Station, and when the witness told him that they bad come to receive Mumtaz, the
accused, not being satisfied, asked whether she was also being brought for prostitution.
The appellant had also threatened to prosecute and put them behind the bars.

20. The courts below have believed the word of these pimps and women of easy virtue,
that the appellant did all this to extort a bribe The trial court with reference to certain
observations of Dua J. in Ram Sarup's case (1967 Cri LJ 744 Delhi) ibid, treated the
"shady and questionable characteristics" of these witnesses as a. point in favour of the
prosecution. It argued that persona with such antecedents can be easily exploited by
corrupt police officers for extorting bribes. Thus, in a way, what was a stigma, was
considered a badge of honour. We are, with respect, unable to appreciate this reasoning.
The observations in Ram Sarup's case, were not intended to lay down a rule of universal
application. Indeed, for weighing evidence there can he no specific canon. No
generalisation is possible in such matters. Each case has its own features and each witness
his own peculiarities. Here was a police officer with an unblemished record, rather an
outstanding record, of 19 years' service. Such an Officer would be least disposed to
countenance pimping within his territorial jurisdiction. He must therefore have been an
eye-sore to them. It could not therefore be said that these witnesses had no motive
whatever to falsely implicate the appellant.

21. Thus the conduct of the appellant in restraining Ramesh, for interrogation, could be
the innocent act of an honest and duty-conscious Police Officer.

22. Then the evidence of these witnesses was replete with discrepancies, contradictions
and improbable versions. PW1 stated that they were all taken by a Constable to a room
and there the appellant gave him a heating. This was in sharp conflict with the version of
Mst. Jayna, that it was PW 1 alone who was first rounded up by the Constable. Again,
PW 1 would have it believed that he had Rs. 30/- in all with, him which he gave to the
appellant. Tins was sharply contradicted by Mst. Jayna, according to whom, it was Mst.
Maya and not PW 1 who had given this money to the appellant. In the context, it may be
noted that apart from Rupees 70/- in tainted notes the further sum of Rs. 30/- was not
recovered from the appellant or from anywhere in fee Police Post The story of the
advance payment of Rs. 30/-, therefore, does not inspire confidence. Further, the conduct
of the appellant in not releasing Ramesh forthwith even after the alleged receipt of Rs.
79/- as gratification, was not the natural conduct of a person whose demand for a bribe
had been satisfied. Dal Chand has said that the appellant did not, on receiving the amount,
allow Ramesh to go away, but said that Dal Chand could go, and that Ramesh would be
sent later on. Ordinarily, such discrepancies and small improbabilities in the evidence of
witnesses are not of much consequence. But when the witnesses are manifestly
disreputable persons, their testimony before it can be acted upon, must pass the test of
severe scrutiny and in the process and in the context of this case even minor infirmities
may assume importance.

23. It is true that there is no absolute rule that the evidence of an interested witness cannot
be accepted without corroboration. But where the witnesses have poor moral fibre and
have to their discredit a heavy load of bad antecedents, such' as those of PWs 1, 2, 7 and 8,
having a possible motive to harm the accused who was an obstacle in the way of their
immoral activities, it would be hazardous to accept their testimony, in the absence of
corroboration on crucial points from independent sources. If any authority is needed
reference may be made to R. P. Arora v. State of Punjab wherein this Court ruled that in a
proper case, the Court should look for independent corroboration before convicting the
accused person on the evidence of trap witnesses.

24. Well then, was such corroboration of the testimony of the interested witnesses
forthcoming in the present case? In this connection, Mr. Mahajan referred to two
circumstances: (i) the detention of Ramesh and (ii) the conduct of the appellant in keeping
mum to the charge that he had received a bribe. Both these circumstances were not of a
determinative tendency. Both were compatible with the innocence of the appellant We
have already discussed the first, and found that instead of advancing the case for the
prosecution, it lends assurance to the explanation of the appellant that Ramesh had been
brought for interrogation as he was roaming there in suspicious circumstances.

25. As regards the reticence of the appellant on the query made by the Inspector, we do
not think it necessary to burden this judgment with a discussion of the question whether
this conduct amounts to a statement made to a Police Officer in the course of
investigation and as such is hit by Section 162 of the CrPC. Suffice it to say that even on
the assumption that it was admissible as conduct and not as a 'statement' under Section
8, Evidence Act, its probative value in the circumstances of this case would be almost nil.
The appellant explained that he did not protest and resist out of fear, that the Inspector
might make matters worse for him, even for getting bail. It would not be unusual even for
an honest Officer to be frightened out of wits on being suddenly accused of bribe-taking
by a superior Officer.

26. Thus, these two circumstances do not lend any assurance to the testimony of the trap
witnesses. Nor could such assurance be sought from the evidence rendered by Inspector
Parasnath. True, that it has not been shown that he had any hostile animus against the
appellant though such an allegation was made. Nor has it been shown that he had long
acquaintance or friendship with Dal Chand and party. But we cannot lose sight of the
stark fact that he was an Inspector of the Anti-Corruption Staff of Police. He was the
architect of the trap and the head of the raiding party. Although the power conferred on
him under the order, dated 21-3-1968, by the Administrator of the Union Territory of
Delhi, did not extend to the investigation of an offence tinder Section 161, Penal Code,
yet, with zeal outrunning discretion, he went ahead with the execution of the trap and the
investigation. Being deeply concerned with the success of the case, he was also an
interested witness. Not being an independent witness, his evidence could not furnish the
kind of corroboration requisite in the circumstances of the case.

27. This takes us to the evidence of the independent witnesses, P. Ws. 3 and 4. Both have
not, in the main, supported the prosecution. With the leave of the court, the Public
Prosecutor cross-examined and confronted them with their contradictory statements
which they had made to Inspector Parasnath during investigation. The question is, could
the court validly pick out tiny bits from their evidence and use the same to support the
prosecution case?

28. Relying on Jagir Singh v. State ibid, Mr. Anthony submits that when a prosecution
witness, being hostile, is cross-examined by the Public Prosecutor with the leave of the
Court, his entire evidence is to be discarded, as a matter of law.

29. Since this vexing question frequently arises, and the observations made by this Court
in Jagir Singh's case (ibid) do not appear to have been properly understood, it will be
appropriate to clarify the law on the point.

29A. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling
witness" are all terms of English Law. At Common Law, if a witness exhibited manifest
antipathy, by his demeanour, answers and attitude, to the cause of the party calling him,
the party was not, as a general rule, permitted to contradict him with his previous
inconsistent statements, nor allowed to impeach his credit by general evidence of bad
character. This rule had its foundation on the theory that by calling the witness, a party
represents him to the Court as worthy of credit, and if he afterwards attacks his general
character for veracity, this is not only mala fides towards the Court, but, it "would enable
the party to destroy the witness if he spoke against him, and to make him a good witness
if he spoke for him with the means in his hand of destroying his credit if he spoke against
him" (see Best on Evidence, p. 630, 11th Edn.). This theory or assumption gave rise to a
considerable conflict of opinion as to whether it was competent for a party to show that
his own witness had made statements out of Court inconsistent with the evidence given
by him in court. The weight of the ancient authority was in the negative.

30. In support of the dominant view it was urged that to allow a party directly to discredit
or contradict his own witness would tend to multiply issues and enable the party to get the
naked statement of a witness before the jury, operating in fact as substantive evidence,
that this course would open the door wide open for collusion and dishonest contrivance.

31. As against this, the exponents of the rival view, that a party should be permitted to
discredit or contradict his own witness who turns unfavourable to him argued that this
course is necessary as a security against the contrivance of an artful witness, who
otherwise might recommend himself to a party by the promise of favourable evidence and
afterwards by hostile evidence ruin his cause. It was reasoned further "that this is a
question in which not only the interests of litigating parties are involved, but also the
more important general interests of truth, in criminal as well as in civil proceedings, that
the ends of justice are best attained by allowing a free and ample scope for scrutinising
evidence and estimating its real value, and that in the administration of criminal justice
more especially, the exclusion of the proof of contrary statements might be attended with
the worst consequences". Besides, it by no means follows that the object of a party in
contradicting his own witness is to impeach his veracity, it may be to show the faultiness
of his memory" (see Best, page 631, 11th Edn.).

32. The rigidity of the rule prohibiting a party to discredit or contradict its own witness
was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable
witness" and by attempting to draw a distinction between the two categories. A "hostile
witness" is described as one who is not desirous of telling the truth at the instance of the
party calling him, and an 'unfavourable witness' is one called by a party to prove a
particular fact in issue or relevant to the issue who fails to prove such fact, or proves an
opposite fact (see Cross on Evidence, p. 220, 4th Edn., citing Stephen's Digest of the Law
of Evidence).

33. In the case of an 'unfavourable witness', the party calling him was allowed to
contradict him by producing evidence aliunde but the prohibition against cross-
examination by means of leading questions or by contradicting him with his previous
inconsistent statements or by asking questions with regard to his discreditable past
conduct or previous conviction, continued. But in the case of a 'hostile' witness, the Judge
could permit his examination-in-chief to be conducted in the manner of cross-
examination to the extent to which he considered necessary in the interests of justice.
With the leave of the court, leading questions could be put to a hostile witness to test his
memory and perception or his knowledge of the facts to which he was deposing. Even so,
the party calling him, could not question him about his bad antecedents or previous
convictions, nor could he produce evidence to show that the veracity of the witness was
doubtful. But the position as to whether a previous inconsistent statement could be proved
against a hostile witness, remained as murky as ever.

34. To settle the law with regard to this matter, Section 22 of the Common Law Procedure
Act, 1854 was enacted. It was originally applicable to civil proceedings, but was since re-
enacted in Section 3 of the Criminal Procedure Act, 1865 and extended in identical terms
to proceedings in criminal courts as well.

35. Section 3 provides:

A party producing a witness shall not be allowed to impeach his credit by general
evidence of bad character, but he may, in case the witness shall, in the opinion of the
Judge, prove adverse, contradict him by other evidence, or by leave of the judge, prove
that he has made at other times a statement inconsistent with his present testimony but
before such last-mentioned proof can be given the circumstances of the supposed
statement, sufficient to designate the particular occasion, must be mentioned to the
witness, and he must be asked whether or not he has made such statement.