BADRI RAI & ANOTHER versus THE STATE OF BIHAR

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BADRI RAI & ANOTHER v. THE STATE OF BIHAR (B. P. SINHA and JAFER IMAM JJ.)

August z8.

Evidence-Conspiracy to bribe a public servant-Statements of co-conspirator-When admissible against others-Indian Penal Code (Act 45 of I86o), ss. I20B, I65A-Indian Evidence Act (I of I872), s. IO.

The appellants were prosecuted on charges under s. 120B read with s. 165A of the Indian Penal Code, for having conspired to commit the offence of bribing a public servant in connection with the discharge of his public duties. The case against them was that on August 24, 1953, when the Inspector of Police who was in charge of the investigation of a case in which the second appellant was involved, was on his way to the police station, the appellants accosted him on the road and the second appellant asked him to hush up the case for valuable consideration. Some days later, on August 31 the first appellant offered to the Inspec tor at the police station a packet containing Rs. 500 in currency notes and told him;that the second appellant had sent the money through him in pursuance of the talk that they had with him on August 24, as a consideration for hushing up the case. The courts below accepted the evidence adduced. on behalf of the prosecution and convicted the appell-.:tnts. On appeal by special leave it was contended that the court had no reasonable grounds to believe that the appellants had entered into a conspiracy to commit the offence and that the statement of Augu~t 31 was not admissible against the second appellant because (1) the charge under s. r20B had been deliberately added in order that the act or statement of the one would be admissible against the other, and (2) the object of the conspiracy, namely the payment of the hush money, had lbeen accomplished before the statement in question W'as madb :

Held, (1) that the incident of August 24 was evidence that the intention to commit the offence had been entertained by both the appellants on or before that date showing a clear indi cation of the existence of the conspiracy, and that the statement made by the first appellant on August 31 was admissible not only to prove that the second appellant had constituted the first appellant his agent in the perpetration of the crime but also to prove the existence of the conspiracy ; the court was therefore justified in drawing up the charge under s. 120B along with that • under s. 165A of the Indian Penal Code. (2) that the payment of the bribe and the statement of

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August 31 accompanying it,\ were part of the same transaction, ' having been made in the course of the conspiracy, and the

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Bndri Rai v. State of Bihar

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statement in question was therefore admissible under s. 10 of the Indian Evidence Act.

Mirza Akbar v. The King Emperor, (r940) L. R. 67 I. A. 336

and R. v. Blake, (r844) 6 Q. B. r26, relied on.

CRIMINAL APPELLATE

JURISDICTION: Criminal

Appeal No. 79 of 1956.

Appeal by special leave from the judgment and order dated September 7, 1955, of the Patna High Court in Criminal Appeal No. 370 of 1954, arising out .of the judgment and order dated July 26, 1954, of the Court of the Special Judge at Bhagalpur in Special Case No. 14 of 1954.

B. R. L. Iyengar, for appellant No. I. S. P. Sinha and P. G. Agarwala, for appellant

No. 2.

Sinha J.

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R. C. Prasad, for the respondent. 1958. August 18. The Judgment of the Court was

delivered by

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SINHA J.-This appeal by special leave is directed against the concurrent judgments and orders of the courts below, convicting the two appellants under s. 120B read with s. 165A, Indian Penal Code, and sentencing, them to rigorous imprisonment for 18 months, and to pay a fine of Rs. 200 each, and in default of payment of fine, to undergo further rigorous imprisonment for 6 months. A separate conviction· under s. l 65A has been recorded in respect of the first appellant, Badri. Under this head, he has peen sen tenced to rigorous imprisonment for 18 months, the sentence to run concurrently with the sentence under the common charge.

The facts as found by the courts below, which could not be successfully challenged before us, are as follows : The second appellant, Ramji Sonar, is a goldsmith by profession and runs a shop on the main road in the village N aogachia. In that village there is a police station and the shop in question is situated in between fue police station building and the residential quarters ' of the Inspector of police, who was the First Infor mant in the case, resulting in the conviction and

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implements for melting, said

sentences of the appellants as s~ated above. The first appellant, Badri, runs a school for small boys in the same village about 50 yards away from the shop a.fore- said of the second appellant. On August 22, 1953, the First . Informant, who, holding the position of an Inspector of police, was in charge of the police station, made a seizure of certain ornaments and molten silver from a vacant building in front of the house of the second appellant, Ramji. Those omaments were being melted by six strangers coming from distant places, to have been with supplied by Ramji. The seizure was made on the suspicion that the ornaments and the molten silver were stolen property, which were to be sold to Ramji in a shape which could not be identified with any stolen property. After making the seizure-list of the properties, thus seized, the police officer arrested Ramji, as also the other six strangers. Ramji was released on bail that very day. Police investigations ints;i the case, thus started, followed. During that period, on August 24, 1953, at about 7-30 p.m., the Inspector was on his way from his residential quarters to the police station, when both the appellants accosted him on the road, and Ramji asked him to hush up the case for a valuable consideration. The Inspector told them that he could not talk to them on the road, and that they should come to the police station. There- after, the Inspector reported the matter to his superior officer, the D.S.P. (P.W. 8), and to the sub-inspector, P.W. 9, jl.ttached to the same police station. On August 31, the same year, the first appellant, Badri, came to the police station, saw the Inspector in the central room of the thana, and offered to him a packet wrapped in a piece of old newspaper, containing Rs. 500 in currency notes. He told the Inspector, (P. W. 1), that the second appellant, Ramji, had sent the money through him in pursuance of the talk that they had with him in the evening of August 24, as a consideration for hushing up the case that was pending against Ramji. At the time the offer was made, a 1 number of police officers besides a local merchant, (P.W. 7), were present there. The Inspec"tor at once

Badri Rai v. state of Bihar

Sinha ].

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BadYi Rai v.

drew up the first information report of the offer of the bribe on his own statement and prepared a seizure-list of the money, thus offered, and at once arrested Badri stat• of Bihar and put him in the thana lock-up. After the usual investigation the appellants were placed on their trial, with the result indicated above.

Sinha ].

Both the courts below have found that the prosecu tion case, a summary of which has been given above, has been proved by good and reliable evidence, and that the defence case that the prosecution was started by the inspector out of spite and in order to deferid himself against the consequences of wrongfully arrest ing Ramji, was unfounded. We are not impressed with the halting criticism of the evidence adduced in this case on behalf of the prosecution and accepted by the courts below. Ordinarily, this Court does not interfere with concurrent findings of fact.

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The only serious question raised in this appeal is the point raised on behalf of the second appellant, Ramji, as to whether the statement made by the j;irst appellant, Badri, on August 31, 1953, that he had been sent by the second appellant with the money to be offered by way of bribe to the police officer, was admissible against him. The learned counsel for the appellant was not able clearly to formulate his grounds of objection to the admissibility of that piece of evidence, which is the basis of the charge against both the accused persons. Section 10 of the Indian Evi dence Act, is a complete answer to this contention. The section is in these terms :-

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"10. Where there is reasonable ground to believe toge that two or more persons have conspired ther to commit an offence or an . actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of thei:n, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person· was

' a party to it. "

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The incidenb of August 24, when both the appellant~

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Badri Rai v. stat• of Bihar

Sinha ].

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approached the inspector with the proposal that he should hush up the case against the second appellant, is clear for which he would be amply rewarded, evidence of the two persons having conspired to com- mit t4e offence of bribing a public servant in connec tion with the discharge of his public duties. There cannot, therefore, be the least doubt that the court had reasonable grounds to believe that the appellants had entered into a conspiracy to commit the offence. Therefore, the charge under s. 120B had been properly framed against both of them. That being so, anything said or done by any one of the two appellants, with reference to the common intention, namely, t,he con- spiracy to offer bribe, was equally admissible against both of them. The statement made by the first appel- lant on August 31, that he had been sent by the second appellant to make the offer of the bribe in order to hush up the case which wasJthen under investigation, is admissible not only against the mij>ker of the statement-the first appellant-but also against the second appellant, whose agent the former was, in pursuance of the object of the conspiracy. That state- ment is admissible not only to •prove that the second appellant had constituted the first appellant his agent in the perpetration of the crime, as also to. prove the existence of the conspiracy itself. The -incident of August 24, is evidence that the intention to commit the crime had been entertained by both of: them .on or before that date. Anything said or done or written by any one of the two conspirators on and after that date until the "object of the conspiracy had been accom- plished, is evidence against both of them.

It was faintly suggested on behalf of the second appellant, that the charge under s. 120B of the Indian Penal Code, had been deliberately added by the prose cution in order to make the first appellant's statement of August 31, admissible against the second appellant, as otherwise it could not have been used as evidence against him. As already indicated, the iRcident of August 24, is a clear indication of the existence of the conspiracy, and the court \vas perfectly justified in • drawing up the charge under s. 120B''al-so, It is no

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Badri Rai v. Stale of Bihar

Sinha ].

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answer in Jaw to say, that unless the charge under that section had been framed, the act or statement of one could not be admissible against the other. Sec tion 10 of the Indian Evidence Act, has been delibe rately enacted 'in order to make such acts and state- ments of a co-conspirator admissible against the' whole body of conspirators, because of the nature of the crime. A conspiracy is hatched m secrecy and executed in darkness. Naturally, therefore, it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts or state ments of the others, unless there is a common bond linking all of them together. Ordinarily, specially in a criminal case, one person cannot be made responsible for the acts'or statements of another. It is only when there is evidence of a concerted action in furtherance of a common intention to commit a crime, that the law has introduced this rule of common responsibility, on the principle that every one concerned in a con spiracy is acting as the agent of the rest of them. As ·soon as the court has reasonable grounds to believe that there is identity of interest or community of pur pose between a number.of persons, any act done, or any statement or declaration made, by any one of the co-conspir31tors is, nalturally, held to be the act or statement of the other conspirators, if the act or the declaration has any relation to the object of the cons in piracy. Otherwise, stray acts done in darkness prosecution of an object hatched in secrecy, may not become intelligible without reference to the common purpose running through the chain of acts 'or illegal omissions attributable to individual members of the conspiracy.

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It was also suggested that the statement made by the first appellant on August 31, about the purpose of the payment, having been made after the payment, was not admissible in evidence because the object of the conspiracy had been accomplished before the state ment in question was made. Reliance was placed in this connection upon the decision of their Lordships of • the Judicial Committee in Mirza Akbar v. The King Emperor.('). ·But'that decision is itself an answer to the

(1) (1940) L.R. 67 I.A. 336. ,

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Badri Rai v. State of Bihar

Sinha ].

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contention raised. The paymertt was made, and the statement that it was being made with a view to hush ing up the ca.se against the second appellant is a part of the same transaction, that is to say, the statement accompanied the act of payment of the bribe. Hence, it cannot be said that the statement was made after the object of the ~JOnspiracy had already been accom plished. The object of the conspiracy was the hushing up of the criminal case against the second appellant · by bribing the public servant who was in charge of the investigation of the case. The object of the conspiracy was yet far from being accomplished when the state ment in question was made. The leading case on the subject is that of R. v. Blake (1). That decision is ·an authority both for the positive and the negative aspects of the question. It lays down what is admis sible and what is not admissible. It held that the documents actually used in effectuating the objects of the conspiracy, were admissible, and that .those docu me11ts which had been created by one of the conspira tors after the object of the conspiracy had been achieved, were not admissible. Section 10 of the Indian Evidence Act is on the ~ame lines. It is mani fest that the statement in question in the present case was made by the first appellant in the colil.rse of the conspiracy, and accompanied the act of the payment of the money, and is G!early covered by the provisions of s. 10, quoted above. It must, therefore, be held that there is no substance in the only question of law raised in this appeal. It is, accordingly, dismissed.

Appeal dismissed.

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(r) (1844) 6 Q.B. ~26; 115 E.R. 49 .

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