IN RE: S. JESUDAS APPADURAI PILLAI Vs. STATE

JUDGEMENT

(1.) THE petitioner who is the Tahsildar of Tirupur Taluk was convicted under Section 161 of the Indian Penal Code for having received an illegal gratification of Rs. 120 from P.W. 1 for recommending him for a license to trade in rice. He was convicted and sentenced to undergo rigorous imprisonment for two months and to pay a fiue of Rs. 500. His appeal was dismissed by the learned Sessions Judge of Coimbatore. The facts are very simple. It is alleged that on the 19th May an application Ex. A addressed to the Sub -Collector of Pollachi was prepared by P.W. 1. On the 20th May, he went to the Taluk Office with the petition and there the accused was present. P.W. 1 says that he learnt apparently from a peon that it was necessary to pay Rs. 100 if his petition was to succeed. This statement is of course hearsay, inadmissible and should not have been received in evidence. He borrowed Rs. 100 from P.W. 4 and handed Rs. 120 to the accused at his house on the 21st May, alternatively on the 23rd. The prosecution is not quite definite about this. Not having received his license he made a complaint and then prosecution followed. P.W. 1 as the bribe -giver was of course an accomplice, and as a matter of expediency his evidence should be corroborated "in material particulars implicating the accused." Vyasarao v. King -Emperor, I.L.R.(1899)Mad. 134. The corroboration relied on by the prosecution was (1) that the petition was promptly dealt with. This implies that any Government servant who does his work promptly must have been bribed for the purpose, a cynical point of view which I must emphatically reject. (2) Theevidence of P.W. 4. that P.W. 1 borrowed Rs. 100 from him on the 20th May, and (3) the evidence of P. Ws. 2 and 3 described by the Magistrate as "very good corroboration." Their evidence was to the effect that at some time after the 21st May, P.W. 1 mentioned to them that he had paid this bribe. The Magistrate thinks this incident occurred "a few days after" the payment. The learned Judge states very vaguely that it was "one day." The lower Courts both seem to have accepted as corroboration of P.W. i's evidence the three circumstances mentioned. The most important evidence is that of P. Ws. 2 and 3. It is admissible if at all under Section 157 of the Evidence Act as a statement made by P.W. 1 relating to the giving of the bribe "at or about the time" when it was given. Section 157 is a general exception to the common law rule of evidence that hearsay evidence is inadmissible. In England such statements made by witnesses are only admitted in the case of sexual offences against women and children. An "immediate complaint" made by the person assaulted can be admitted as corroborative of the complainant's credibility and as showing consistency of conduct. This is well established in The Queen v. Lillyman, I.L.R.(1933) Cal. 1273 and The King v. Osborne., I.L.R.(1933) Cal. 1273 In such cases the complaint must be made at the first opportunity or as Stephen's Digest of the Law of Evidence, 10th edition, 170 puts it "reasonably soon after the alleged offence." A consideration of the English cases with regard to what period was considered to be "reasonably soon" is instructive. In Reg v. Kiddle, I.L.R.(1933)Cal. 1273, there was a delay of 3 to 4 hours. In The Queen v. Lillyman, I.L.R.(1933)Cal. 1273, the period is stated to be "very shortly after." In Reg v. Rush, I.L.R.(1930) Pat. 865, Wright, J., observed that the lapse of time between the committing of the offence and the making of the statement was important and rejected a complaint, made "a day after the offence was committed." In Reg v. Ingrey, I.L.R.(1930)Pat. 865, Lord Russell of Killowen rejected a complaint made a few days after. The Court of Criminal Appeal in the case 'of John Lee7 ruled that it must depend upon the circumstances of each case whether it could be said that the complaint was made "on the first reasonable opportunity which offers itself." These words are almost identical with those used by the Court of Crown Cases reserved in The King v. Osborne, I.L.R.(1930)Pat. 865 The wording of Section 157 of the Evidence Act is to the effect that a statement must be made "at or about the time when the fact took place." There is a dearth of authority as to the meaning of "at or about the time." Nangat Rai v. Emperor shows that proximity of time must be established. In Emperor v. Ramachandra Roy there was an interval of 20 hours between the event and the statement sought to be put in as evidence of corroboration. The Bench considered that this interval was too long and refused to admit this statement. Both these decisions with which I respectfully agree are based, as are the English cases, on the premise that in point of time the fact and the statement must be approximate. No Madras cases have been cited but I see no difficulty in understanding the words. I think that "at or about the time" must mean that the statement must be made at once or at least shortly after when a reasonable opportunity for making it presents itself The object of the section seems to me to be to admit statements made at a time when the mind of the witness is still so connected with the events as to make it probable that his description of them then would be accurate. For example, if A returns to his house and says to a friend "I have just seen B in the Mount Road" and later the question arose whether B was in Madras on that day, the statement of A to his friend might be valuable corroboration of A's evidence that he in fact did see B on that day. The more familiar example is in murder cases when a witness who has seen a murder at once tells some third party what he has seen. But if time for reflection passes between the event and the subsequent statement it not only can be of very little value but may be actually dangerous as such statements can be easily brought into being. Such delayed statements are in my opinion inadmissible The section says that the statement must be made "at or about the time "not" at any time after the event.

(2.) THE above important considerations when applying Section 157 and admitting the evidence of P. Ws. 2 and 3 seem to have been wholly overlooked by the lower Courts. In the first place it was never ascertained when they were made. The learned Judge, as already indicated, was content to say that they were made "one day." An examination of the evidence of P.W. 2 indicates that the statement was not made until the end of September long after the event. P.W. 2 says he was examined by the Sub -Collector 10 or 15 days after he met P.W. 1. According to Ex. C he saw the Sub -Collector on the 25th of September. The evidence relied on as corroborating P.W. 1 was unquestionably that of P. Ws. 2 and 3. I cannot suppose that either of the lower Courts would have acted on the corroboration of P.W. 4 alone who states that he lent Rs. 100 to P.W. 1, a man whose name he did not know and who made no note of the transaction. This is specifically important in view of the fact that the cross -examination of P.W. 1 showed that his character as a witness was extremely dubious. It must be further observed that the fact of P.W. 1 borrowing Rs. 100 does not implicate the accused in the absence of reliable evidence that he received Rs. 100. It is interesting to notice that the accused had a number of prosecutions similar to this launched against him in 1943, all of which ended in acquittals. He states that he has been the subject of persecution by the local Goundars who resented his activities as a Government servant during 1942 disturbance and after. That may or may not be so; but a consideration of this case shows that this conviction when examined rests entirely on the word of P.W. 1 who made no complaint until his license was not forthcoming which may have been for good and sufficient reason. The corroboration relied on (assuming that an accomplice can corroborate himself under Section 157 which I gravely doubt) was manifestly inadmissible. Section 157 cannot possibly contemplate the admission of a statement made long after the event. I am not attempting to lay down what is a reasonable time as this is a question of fact in each case. It is enough for the purposes of this case to hold that the statement of P.W. 1 and P. Ws. 2 and 3 was not made at the time of the event nor was it made at "about the time" which means within a reasonably short time after the event.