P.N. Ramaswami, J.
1. These are connected appeals preferred by the accused who have been convicted by the learned Assistant Sessions Judge of Tirunelveli in Sessions Case No. 54 of 1956.
2. The case for the prosecution is that accused 1 to 7 conspired amongst themselves and with one Sivakolundu of Jaffna, Ceylon, between December 1954 and October 1955 at Tirunelveli and Madurai to make or possess instruments or materials for the purpose of counterfeiting hundred-rupee currency notes of Reserve Bank of India of Asoka Pillar pattern.
(After setting out the facts of the case the Judge has proceeded to examine the four points of law raised by the advocates for the accused.)
3-20. The learned advocate Mr. Mohan Kumaramangalam pressed before me four points viz., that when P.W. 46 received information about the operations of this gang on 26-7-1955, that constituted the first information report of a cognizable offence and that he should have registered a case then and there and that therefore the information collected thereafter can be adduced in Court only subject to the provisions of S. 162, Criminal Procedure Code; secondly, that P.W. 1 who on instructions by the Inspector posed as the Tanjore Mirasdar and feigned accomplice, is not a detective but an instigator of the offence and that therefore the Police far from prosecuting the accused should themselves be arraigned as instigators and abettors of the crime; thirdly, all evidence relating to Sivakolundu should be excluded as it would not come within the purview of S. 10 of the Indian Evidence Act; and fourthly, when the accused persons have put forward an explanation which might reasonably be true, the accused will be entitled to the benefit of doubt.
I shall now examine these four points of law in seriatim in order to demonstrate that they are totally devoid of substance in the context of this case, though as general theoretical propositions unrelated to the facet of this case they may be unexceptionable.
21. Section 154, Criminal Procedure Code lays down:
Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government Section 157, Criminal Procedure Code, lays down: may prescribe in this behalf.
(1) If. from information received or otherwise, an officer in charge of a police-station has reason to suspect the commission of an offence which he is empowered under S. 156 to investigate, he shall forthwith send a report of the same to a Magistrate, empowered to take cognizance of such offence upon a police report, and shall proceed... to investigate....
22. This information which is usually called the First Information, is the basis upon which an investigation should be, and ordinarily is, commenced by the police under Chapter XIV of the Code. The information given in writing or reduced to writing under S. 154, Cr.P.C. is generally known as the First Information Report, though the word 'first' is not used in the Code. Mani Mohan Ghose v. Emperor, AIR 1931 Cal 745 (A).
23. It is well-settled that the information contemplated must be in the nature of a complaint or accusation, with the object of setting the law in motion.
24. All criminal courts should bear in mind the importance of examining, when there appears to be any, necessity to do so, the first information of an offence reduced to writing in accordance with this section. In view of the notorious tendency in this country to improve upon the original statement of facts to strengthen the case as it proceeds and sometimes to add to the persons originally named as the offenders.
So it is of very great importance to know what was said at first, before there is time for facts to be forgotten or embellished. In attaching importance to the First Information Report, fictitious importance should not however be attached to it. First Information Report is not the all and end-all of every criminal case and is not substantive evidence and after all can be used only for limited purposes like corroborating and contradicting the maker thereof or to show that the implication of the accused was not an afterthought or as one of the res gestae or for being tendered in a proper case under section 32(1) of the Evidence Act or as part of the informant's conduct under section 8 of the Evidence Act. Emperor v. Dubai, AIR 1942 Pat 113 (B); Emperor v. Nazir Ahmad, AIR 1945 PC 18 (C); Mir Rahman v. Emperor, AIR 1935 Pesh. 165 (D); In re, Sankaralinga Thevar, AIR 1930 Mad 632 (2) : 1930 Mad WN 496 : 58 Mad LJ 397 (E); Peary Mohan v. Weston, 16 Cal WN 145 at p. 177 (F); Emperor v. Mohammad Sheik, AIR 1943 Cal 74 (G); Ram Naresh v. Emperor, AIR 1939 All 242 (H); Babu v. Govt, of Mysore, 39 Mys HCR 75 (I); Azimaddy v. Emperor, AIR 1927 Cal 17 (J); Harnam Singh v. Emperor, AIR 1936 Lah 833 (K); Kalu Mandal v. The State, AIR 1950 Cal 412 (L); Emperor v. Ibrahim, AIR 1928 Lah 17 (M); Gopal v. The Crown, AIR 1950 HP 18 (N); Sukia Misra v. The State, AIR 1951 Orissa 71 (O); Thommi Anthoni v. Sirkar Prosecutor, AIR 1950 TC 41 (P); State v. Amil Ranjan, AIR 1952 Cal 534 (Q); Pundlik v. State, 52 Cri LJ 278: (AIR 1951 MP 72) (R).
The general provisions of the Evidence Act contained in section 157 are controlled by the special provisions of section 162 Cr.P.C., which followed it, and which is a special enactment, as against the wider and more general enactment in the Evidence Act.
It is therefore of first importance to determine whether an information is really First Information and therefore can be used under section 157, Evidence Act, or it is hit by the provisions of section 162, Cr.P.C. If it falls under section 162 Cr.P.C., it cannot be used except for the limited purpose mentioned therein. AIR 1935 Pesh 165 (D).
25-26. Thus, statements made to the police in connection with the alleged commission of a cognizable offence, therefore, fall under two heads, those given before the commencement of the investigation and those given during the investigation; but by a special rule of evidence under section 162, Cr.P.C., the use of statements given after the commencement of the investigation is limited as provided by the section itself.
27. The question whether an information is first information or is one recorded under section 161 Cr.P.C., after investigation started and is therefore hit by section 162 Cr.P.C., depends on the pure question of fact as to when exactly investigation started: Mylaswamy Chetty In re, AIR 1939 Mad 66: 1938 Mad WN 905 : (1938) 2 Mad LJ 750 (S); Guruswami Naidu v. Guruswami Naidu, AIR 1951 Mad 812 : (1951) 1 Mad LJ 426 : 1951 Mad WN 255 (T).
28. The point of time when investigation actually started often defies easy determination. But the case law on the question has evolved certain tests, positive and negative, by the application of which it should be possible in each case to fix the point of time when investigation actually started, with more or less certainty. This information has been collected and analysed by Mr. Y.H. Rao in his valuable monograph "The Law of Pre-trial Statements and Depositions" at page 262 and following.
29. The tests usually applied can be summarised as follows:
(a) The information on which a police-officer is expected to act must be authentic, In other words, the information must be capable of being traced to a specific individual who would take the responsibility for the same, so that, should the information subsequently turn out to be false, the informant could be proceeded against.
Under this test, telegrams and telephone messages have been held to be in no better position than village gossip in respect of authenticity, since any arrest based on such unauthenticated information would be in excess of the police-officer's duties. But if the authenticity of the telegram or the telephone message is subsequently confirmed, they themselves may amount to authentic information in certain circumstances and come within the purview of section 154, Cr.P.C. : In re, Anandayya AIR 1915 Mad 312 (U); Public Prosecutor v. Chidambaram, AIR 1928 Mad 791 (V); Ramakrishnayya v. The State, AIR 1954 Mad 442: 1954 Mad WN 41 : 1954 Mad WN Cr 9 (W); Sit Ro Saw v. Emperor, AIR 1936 Rang 455 : 37 Cri LJ 1137 (X).
(b) The information must be sufficiently definite and clear enough to suspect that a cognizable offence has been committed. In other words, it will not be sufficient if the information is not clear enough to reasonably exclude the possibility of an accident. But what is required is a reasonable ground to suspect and not a reasonable ground to believe. The expression "has reason to suspect" in section 157 (1) Cr.P.C., is a pointer.
But vague information cannot be treated as affording a reasonable ground for suspicion: AIR 1939 Mad 66 : 1938 Mad WN 905 : 1938-2 Mad LJ 750 (S); AIR 1951 Mad 812 : 1951-1 Mad LJ 426 (T); Gansa Oraon v. King-Emperor, AIR 1923 Pat 550 (Y); Qamrul Hasan v. Emperor, AIR 1942 Oudh 60 (Z); state v. Janardhan, Appeal No. 148 of 1949, D/- 25-1-1951 (All) (Z-1).
(c) The information may be merely hearsay, provided the person in possession of the hearsay is required to subscribe his signature to it and mention the source of his information, so that the information may not amount to irresponsible rumour: Chinna Ramana Gowd. v. Emperor. 18 Mad LJ 573 (Z2); In re, Krishna 11 Cri LJ 286 (Mad) (Z3); Sessions Judge of Tinnavelly v. Sivan Chetty, 9 Cri LJ 170 : ILR 32 Mad 258 (FB) (Z4).
(d) In conspiracy cases it is often necessary to make a few preliminary and informal enquiries as to whether there is anything in the news floating about and in the grapevine information as to render formal investigation desirable. Premature disclosing of the investigator's hand will no doubt be very helpful to the conspirators and help them to cover their tracks and vanish into thin air drying up the sources of information and leave the forces of law and order high and dry. But that is not the law.
In conspiracy cases arising from shadowy beginnings the investigation must be held to have started from the moment when the police officer forms an opinion that there are grounds for investigating the crime. Thus, first interest; then suspicion; and finally hardening into grounds for investigating the crime. That last stage is the crucial time when anything done or said subsequently must be held to have been done or said during investigation.
In other words, in conspiracy cases a policeman passes through three stages : hears some tiling of interest affecting the public security and which puts him on the alert; makes discreet enquiries, takes soundings and sets up informants and is in the second stage of qui vive or lookout; and finally gathers sufficient information enabling him to bite upon something definite and that is the stage when first information is recorded and when investigation starts.
30. There are certain well-recognised exceptions :
(i) Where, owing to wide-spread disturbances, the Government machinery itself is almost in a state of suspension and no action could therefore be taken on reports of offences made to police-officers, a subsequent report may be treated as the First Information Report : Magan Lal Radhakishan v. Emperor, AIR 1946 Nag 173 (Z5).
(ii) Lists of stolen property supplied to the police after the investigation has literally started but still in the preliminary stage, may be treated as parts of the first information in proper cases. The criterion appears to be that mention should be made in the First Information Report that it would be given as soon as it is prepared and that it should actually be given before any searches or recoveries are made:
Brij Lal v. Emperor, AIR 1943 All 216 (Z6); Bhondu v Rex, AIR 1949 All 364 (Z6A); Emperor v. Narain, AIR 1931 Oudh 83 (Z7).
(iii) Where the report presented at the station is cryptic, answers of the informant to questions' by the Police-officer in elucidation of the report, and included in the report and signed by the informant, may form part of the First Information Report, for the words "in the course of an investigation" mean "in the course of an investigation made after the Police-officer decides to act under section 156, Cr.P.C." : Kachugogoi v. The State, AIR 1951 Assam 151 (Z8).
31. Therefore when investigation started is not a question of law. It is a question which can be answered only with reference to the particular circumstances of the case.
32. Bearing these principles in mind if we examine the facts of this case, there is no substance in the contention put forward by the learned Advocate for the appellants. This point has been thoroughly examined by the learned Asst. Sessions Judge. It is found that this argument is mainly based upon the evidence of P.W. 1 as to what was the information given to him and P.W. 46 by the informant. But if we examined the evidence of P.W. 46. we find that what happened was that counterfeit hundred-rupee currency notes were appearing in various parts of the State and the complaints had been transferred to the C. I. D., for investigation. P.W. 46 was investigating these multi appearance counterfeit currency notes and on 26-7-1955 the Inspector got information through the informant he had set up that a Saurashtra of Madurai was investing money in the venture of manufacturing hundred-rupee currency notes.
This clue was being followed up and it was not until 12-8-1955 that more definite information that accused 5 and 1 were the two other persons who joined this Saurashtra in this venture was forthcoming. Even this Saurashtra's name was not known and subsequently from the special reports of P.W. 1 (Exs. P-1 to P-4) further information was gathered in connection with the information obtained by P.W.
46. It is clear on this state of evidence that the first information which would set the law in motion within the meaning of the case-law set out above, could not be the information secured by P.W. 46 on 26-7-1955. That is why P. W. 46 did not open a case-diary immediately. In fact the Inspector could get something to bite upon and could set the law in motion only when he carried out the raid in the Local Fund Choultry on 13-10-1955 and arrested accused 1 to 3.
Then information had come to be in his possession which would attract the provisions of section 154 Cr.P.C. That is why P.W. 46 had lodged the first information report with the Bridge Police Station, Tirunelveli and it was registered as Crime No. 190 of 1955. It was then that the case-diary had been opened.
I entirely agree with the learned Asst. Sessions Judge that a preliminary enquiry made by the C. I. D. Police into relative information floating about as to the existence of some conspiracy, the name and other details of the conspirators not being known at the time, is not investigation carried out under section 156. It follows therefore that news Exs. P-1 to P-4 as well as the statements made by accused to P.Ws. 1, 2 and 46 both before and at the time of the raid at the Local Fund Choultry, Tirunelveli Junction, are not hit by section 162 Cr. P. C.
In fact these statements are not in the nature of confessions but are in the nature of admissions and section 25 of the Evidence Act is inapplicable to them. But as pointed out by the learned Asst. Sessions Judge even if this view is not right, it will not affect the other evidence on record which is sufficient to find that the prosecution has established beyond doubt that all the accused agreed to do or caused to be done the illegal act of making or possessing materials and instruments for the purpose of being used for counterfeiting hundred-rupee currency notes of the Reserve Bank of India of Asoka Pillar pattern.
33. Point 2 :-The legal position of a spy, detective, decoy, paid informer, trap witness etc., associating with the wrongdoers for discovery and disclosure of an offence has been elucidated in standard commentaries on the Evidence Act in America, Canada, England and India.
34. Wigmore on Evidence, Third. Edition, (U. S. A. and Canadian edition) page 339 (s. 2060) has the following to say:
(d) The case of a pretended confederate, who as detective, spy, or decoy, associates with the wrongdoers in order to obtain evidence, is distinct from that of an accomplice, although the distinction may sometimes be difficult of application....
The line should perhaps be drawn in this way : When the witness has made himself an agent for the prosecution before associating with the wrongdoers or before the actual perpetration of the offence, he is not an accomplice; but he may be, if he extends no aid to the prosecution until after the offence is committed.
A mere detective or decoy or paid informer is therefore not an accomplice; nor an original confederate who betrays before the crime's committal....": Olmstead v. United States, (1927) 277 US 438 : 72 Law Ed 944 (Z9); contra Canada : R. v. Tommy, R. v. Kinney, R. v. McKinley, (1930) 1 DLR 973 (Z10) (Police Officer investigating an offence); R. v. Rodgers, (1926) 4 DLR 609 (Z11), (elaborate opinion).
35. The following extract from 20 American Jurisprudence, page 361 (s. 400) is apposite:
Evidence produced by eavesdropping, if otherwise relevant to the issue, is not to be excluded because of the manner in which it was obtained or procured and neither is the evidence of spies. The defendant has no cause of complaint, either because the witness may possibly not have heard all that was said in the conversation to which he testified or because eavesdropping is disreputable in itself or an offence at common law.
Similarly, the evidence of detectives who feign themselves as accomplices and thereby obtain evidence is receivable. This history of criminal trials shows numerous instances in which evidence was secured by officers of the law who disguised themselves or concealed their identity and gave themselves the appearance of criminals engaged in the promotion of crime; this manner of obtaining such evidence bears merely upon its credibility, not its admissibility.
36. Popple in his "Canadian Criminal Evidence" (Second Edition), page 410, when dealing with Agents Provocateur, Police Spies, Informers, has the following to say :
An agent provocateur is a 'competent' witness and there is no rule of law that his evidence must be looked upon with suspicion. The evidence of agents provocateur, police spies and informers may or may not require corroboration depending on facts of each case. Apart from statutory provision to the contrary their evidence does not in law require corroboration if they have been connected with the matter from the 'Agents provocateur, police spies, spotters, informers and special agents are often used to obtain evidence in offences against the state, or against the noxious drug traffic, or the liquor traffic, knocking down fares on railways, stealing from the mails, sexual crimes against young persons and others, and numerous other crimes. A short history of the law on this subject with illustrative cases will be found in some of the decided cases; R. v. Berino, (1924) 3 WWR 198; R. v. Acker, (1934) 62 Cox CC 269; Amsden v. Rodgers, 26 Cox CC 389. In some courts their evidence is looked upon as unsafe without corroboration especially in cases where they induce the commission of the offence: R. v. Hills, 1924-44 Cox CC 329: 1 WWR 651; R. v. Rodgers, 1926-46 Cox CC 372: 4 DLR 609 : R. v. Sands, 25 Cox CC 116; R. v. Horpenink, 81 Cox CC 108;
But there is no rule of law that their evidence must always be looked upon with suspicion: R. v. White, (1945) 84 Cox CC 126.
The practice of declining to convict on the uncorroborated evidence of an accomplice does not apply to the evidence of a "special constable" in the employ of Government for the purpose of detecting and prosecuting offences, but if the constable makes false statements to the accused for the purpose of inducing him to commit the offence that circumstance is properly considered as one tending against his credibility: Amsden v. Rodgers, 26 Cox CC 389; R. v. Kinney, (NB) (App. Ct.) 55 Cox CC 350 at p. 356.
And in R. v. Rice, (NS) (App. Ct.) 52 Cox CC 380, it was held that the uncorroborated evidence of an agent provocateur who has induced a sale of liquor cannot be disregarded where the charge is one of keeping liquor for sale.
first only as a police spy and not merely have 'continued' as such... The credibility of the witness and the weight of his evidence may also be affected by other circumstances in the case.
37. Taylor on Evidence (Tenth Edition) (1906), Vol. I page 691, section 971, has the following to say:
To one class of persons, apparently accomplices, the rule requiring corroborative evidence does not apply; namely, persons who have entered into communication with conspirators, but who, in consequence of either a subsequent repentance, or an original determination to frustrate the enterprise, have disclosed the conspiracy to the public authorities, under whose direction they continue to act with their guilty confederates, till the matter can be so far matured as to insure their conviction.
The early disclosure is considered as binding the party to his duty; and though a great degree of disfavour may attach to him for the part he has acted as an informer, yet his case is not treated as that of an accomplice. Moreover, it has been held in America that one who only enters into communication with criminals without any criminal intent himself, and solely for the purpose of detecting them in a criminal act, is not an accomplice. It has also been there held that in any case to be an accomplice, one must be indictable as a participator in the offence.
Yet it has been laid down in America that officers of justice and detectives have no right to decoy others into crime in order to capture them as offenders, and that, indeed, to do so may even be criminal. Moreover, if property be taken with a man's consent, even though such consent be given in order that the taker may be convicted of theft, such taking has, in America been held to be no larceny." R. v. Despard, 28 How St Tr 346 (Z12); R. v. Mullins, 1848-3 Cox CC 526 (Z13); R. v. Dowling, (1848) 3 Cox CC 509 (Z14); (if he only lent himself for the purpose of convicting the guilty "he was not an accomplice"); R. v. Bickley, (1909) 2 Cr App 53 (Z15); Henser's Case (1910) 6 Cr App 76 (Z16); R. v. Mortimer, (1911) 1 KB 70 (Z-17);
38. The Indian law is the same and I have summarised it in two decisions Ambujam Ammal v. State, ( 1953 Mad WN (Cr) 156 : AIR 1954 Mad 326) (Z-18) and Sundaravadivelu Chetty v. State, 1955 Mad WN (Cr) 14 (Z-19).
39. The Supreme Court decisions bearing on this subject - Ramkrishnan and Gianchand v. State of Delhi, Cri Appeals Nos. 43 and 44 of 1954, D/- 9-3-1956, AIR 1956 SC 476 (Z20); Ram Janam v. State of Bihar, (S) AIR 1956 SC 643 (Z21).
40. The standard commentaries on the Indian Evidence Act, setting out that an informer or detective is not an accomplice and does not require corroboration even if he be an agent provocateur are:
Chief Justice Monir, Principles and Digest of the Law of Evidence, Third Edition P. 1085; V.B. Raju I. C. S. Evidence Act (1955) P. 1186 (S. 133 Note 2 (e); Sarkar on Evidence, 9th edition page 1079 (S. 133); Chitaley and Appu Rao, The Indian Evidence Act (AIR Commentaries) Vol. 7 S. 133, Note 19). (For later case law bringing it up to date see P. 1962 et seq. of N.T. Raghunathan's All India Digest of 1951-55 (S. 133), I. E. A. Note (C) and the yearly Digest of Indian & Select English Cases (MLJ and AIR combined for 1956 & 1957).
41. Though, as has been pointed out by the Supreme Court it may sometimes be necessary to employ spies or decoys for detection of offences which cannot be detected in any other way, the practice is not looked upon with much favour because in their enthusiasm these men soon degenerate into agent provocateur instigating or provoking the commission of crimes.
Therefore, the authorities indicate that if a man makes himself an agent for the prosecution before associating with the wrongdoer or before the offence is committed or if with a view to protect his own interest or that of others pretends to associate with such persons with the object of preventing the commission of an offence by giving timely information to the authorities, he is not an accomplice.
But however good the motive may be, if such a person or a spy or an informer in the exuberance of his enthusiasm actually instigates another to commit a crime even if it be for detection of offence or to get the credit of having him arrested, he is an abettor under the penal law and his position cannot be anything other than that of an accomplice. In Brannan v. Peek, (1947) 2 All ER 572 (Z22), Lord Goddard, C.J., observed:
The Court observes with concern and disapproval the fact that the police authority at Derby thought it right to send a police officer into a public house to commit an offence... It is wholly wrong for a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected... I hope the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against some one; if they do commit offences, they ought also to be convicted and punished for the order of their superior would afford no defence.
42. This distinction between legitimate and illegitimate trap is brought out in (a) the decision of the Supreme Court in (S) AIR 1956 SC 643 (Z21) and (b) the American cases in the following extract from my decision in 1955 Mad WN (Cr) (Z19).
(a) Their Lordships of the Supreme Court held :
Whatever the criminal tendencies of a man may be, he has a right to expect that he will not be deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law; and more particularly by those who are the guardians and keepers of the law. However regrettable the necessity of employing 'agents provocateurs' may be (and this is unfortunately often inevitable if corruption is to be detected and bribery stamped out), it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done.
The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind him; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behoves society and the State to protect them and help them in their good resolve; not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside.
Held, that this was not a case of laying a trap in the usual way, for a man who was demanding a bribe but of deliberately tempting a man to his own undoing after his suggestion about breaking the law had been finally and conclusively rejected with considerable emphasis and decision.
(b) The evidence of a trap witness which normally cannot be treated as the evidence of an accomplice becomes so when the trap witness is actually the instigator of the offence and this is well brought out in the following American decisions. The fact that an obscene paper was sent in response to a decoy letter is no defence to an indictment for mailing such publication: Rosen v. United States, (1896) 40 Law Ed 606 (Z23); Andrews v. United States, (1896) 40 Law Ed 1023 (Z24); Price v. United States (1896) 41 Law Ed 727 (Z25).
It is no defence sending a letter giving notice where obscene pictures may be obtained in violation of U.S. Rev. State, s. 3893 U. S. C., title 18-s. 317, that the letter was an answer to an enquiry under an assumed name from a detective or government official: Grimm v. United States, (1895) 39 Law Ed 550 (Z26). The fact that a letter was a decoy is no defence to an indictment of a railway postal clerk for embezzling and stealing it when it contained money: Montgomery v. United States, (1896) 40 Lad Ed 1020 (Z27).
The fact that officers or employees of the government merely afford opportunities or facilities for the commission of an offence does not defeat a prosecution therefor : Sorrells v. United States, (1932) 77 Law Ed 413 (Z28). A conviction for possessing and selling intoxicating liquor in violation of the National Prohibition Act is improper where the acts alleged to constitute the offence were committed solely upon the instigation of a prohibition agent (Ibid).
Entrapment is the conception and planning of an offence by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Separate opinion of Riberts, Brandies. Stone, JJ. in (1932) 77 Law Ed 413 (Z28). It is not the duty of a government official to incite to and create crime for the purpose of prosecuting and punishing it Butts v. United States, 1921-273 Fed 35 : 18 ALR 143 (Z29).
43. 15 American Jurisprudence (Am. Jur.) page 25 S. 336 lucidly summarises the legal position of entrapment to commit crime as follows :
As a general rule, if the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offence charged in order to prosecute him therefor, no conviction may be had, though the criminality of the act is not affected by any question of consent.
In some jurisdictions, however, initiative on the part of the perpetrator of an act is not essential to charge him with criminal responsibility. A person who commits a crime at the suggestion or instigation of another is just as guilty as if the design had originated with him, and it is not material in this respect that the suggestion was made by a police officer.
In the case of those crimes into which enters as an essential element the violation of individual rights of persons, the entrapment must not be under such circumstances as will amount to the consent of the person affected, or a necessary ingredient of legal guilt, the want of such consent, will be lacking, and the crime will not have been committed.
The line of distinction seems to be whether there has been an active, as distinguished from a passive, inducement to the taking on the part of the person affected or his duly authorised agent; and where such active inducement can be shown, no conviction can be had. Where, however, a person knows or suspects that a crime affecting him is about to be committed, he may, without being deemed to have consented thereto, remain passive and make no effort to prevent its commission, to the end that the criminal may be apprehended. likewise where the criminal design originates in the mind of the accused, it is no defence that the agent of the owner pretends to co-operate with the accused.
Nor is it a defence that detectives pretend to co-operate in the execution of the criminal design, provided no act is done which in law, amounts to the owner's consent to the taking.
44. Bearing these principles in mind, if we examine the facts of this case, we find that the part taken by P.W. 1 does not fall within the mischief contemplated in (1947) 2 All ER 572 (Z22). On the other hand, by the time P.W. 1 joined the conspirators as a feigned accomplice the offence has already been born as in In re Mohiddin, AIR 1952 Mad 561 (Z30) and steps were being taken to implement the object of the conspiracy.
There was a temporary set back. The conspirators were on the look out for financiers. P.W. 1 offered himself as one such. In other words, the part taken by P.W. 1 was to give the momentum towards the fruition of the conspiracy and not function at its accouchement. In short, P.W. 1 assisted not the pre-natal but only the post-natal part of the conspiracy. Therefore he cannot be considered to be an accomplice.
But I need not add that even treating his evidence as that of a so-called accomplice, there is ample and satisfactory corroboration within the meaning of R. v. Baskerville, (1916) 2 KB 658 (Z31). Point 2 fails.
45. Point 3:-The principle underlying section 10 of the Indian Evidence Act is that a conspirator is an agent of his associates in carrying out the object of the conspiracy. His acts and declarations are therefore admissible against the other conspirators on the same principle as the acts and declarations of an agent are receivable against his principal.
This section makes the acts, statements or writings of a conspirator admissible against other conspirators and constitutes an exception to the general rule that the acts, statements or writings of a person are admissible only against himself and not against others.
This section is wider than the corresponding rule in English law; the difference being, firstly, that whereas in English law the act must have been done or declaration made in execution or furtherance of the common object, under the Indian Evidence Act, to establish the admissibility of the act or declaration, it is sufficient to show that it had reference to the common intention; and secondly, that whereas in English, law the act of a conspirator must have been done, or declaration made, before the person, against whom it is sought to be given in evidence ceased to be a member of the conspiracy, in Indian law the act or declaration would be admissible, even though it was done or made after the person, against whom it is sought to be given in evidence terminated his connection with the conspiracy. Prima facie proof of conspiracy and of the accused's connection with it must be given before giving evidence of the act, declaration or writing of a conspirator.
It is not necessary that it should be established by direct evidence that the accused and the person whose acts, statements or writings are sought to be given in evidence against the prisoner entered into a formal consultation or agreement to commit an offence as in a case of conspiracy direct evidence is seldom available. It may be proved by the surrounding circumstances or by the antecedent or subsequent conduct of the accused.
This section is intended to admit in evidence all communications between the different conspirators while the conspiracy was going on with reference to the carrying out of the conspiracy. The statements made or acts done by others before the accused joined the conspiracy are equally relevant and admissible and any statement made by one conspirator to another indicating in any way the complicity of a third conspirator is a relevant fact and such statement may be admitted. Whether it should be believed or not is another question.
Similarly, documents in the possession of a conspirator are admissible against co-conspirators in the following circumstances. If, after the arrest of a conspirator, papers are found on the person or at the lodging of a co-conspirator, they will be admissible against the former if there is evidence that they existed previously to the arrest of the former.
The existence of secret code is in itself evidence for supposing that the persons named therein have conspired to commit an offence. The evidentiary value of the facts which are admissible under this section are well illustrated by the illustration given under this section.
(These principles are deducible from the case law set out in the standard commentaries on the Indian Evidence Act: Chief Justice Monir's Principles and Digest of the Law of Evidence, third edition, page 56; V.B. Raju, I. C. S., Evidence Act P. 57; Sarkar on Evidence 9th Edition P. 8; Chitaley and Appu Rao, Evidence Act (Corpus Juris of India Series) (AIR Commentaries) S. 10).
46. Bearing these principles in mind, if we examine the facts of this case, we find that the letters of the absconding accused T.S. Sivakolundu written to accused 5 and which were seized from the house of accused 5, in the months of June, July and August 1955 and in one of which Sivakolundu hints at the business contemplated by them becoming confronted with innumerable difficulties and their having to abandon it in favour of some more reassuring and promising business and which shows in its broad outline, coupled with the correspondence which passed between the accused themselves, the origin, development and the frustration of the venture until the matter became known to the C. I. D. Police and which led immediately to the seizure of the block and other incriminating materials and the arrest of the accused are relevant and admissible under section 10 of the Indian Evidence Act. Point 3 therefore fails.
47. Point 4 :-The scope of the explanation given by the accused in criminal cases is now really well settled. The oft-quoted decision of Sankey, L.C. in woolmington v. Director of Public Prosecutions, 1935 AC 462 (Z32), considered and explained in Mancini v. Director of Public Prosecutions, 1942 AC 1 (Z33) and Kwaku Mensah v. The King, AIR 1946 PC 20 (Z34), is apposite.
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
No matter what the charge and where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
Therefore, this burden on the prosecution cannot be shifted on to the accused when he furnishes an explanation either under section 342 Cr. P. C, or under the newly amended Code gives evidence on his own behalf. The value to be attached to such an explanation has been set out in the well known case of Rex v. Abramovitch, (1914) 84 LJ KB 396 (Z35), which arose under the corresponding English Law falling under illustration (a) to section 114 of the Indian, Evidence Act. The Court observed :
Upon the prosecution establishing that the accused were in possession of goods recently stolen they may in the absence of any explanation by the accused of the way in which the goods came into their possession which might reasonably be true to find them guilty, but if an explanation were given which the jury think might reasonably be true and which is consistent with innocence although they were not convinced of its truth, the prisoners are entitled to be acquitted inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond reasonable doubt of the guilt of the accused.
The jury might think that the explanation given was one which could not reasonably be true, attributing a reticence or an incuriosity or a guiltlessness to the accused beyond anything that could fairly be supposed." (See also R. v. Aves, (1950) 2 All ER 330 (Z36), explaining R. v. Schama, R. v. Abramovitch (Z35). See also R. v. Garta, (1949) 1 All ER 773 (Z37); R. v. Hep-worth, R. v. Fearnley, (1955) 2 All ER 918 (Z38)).
In other words, the explanation of the accused may be so convincing as to falsify the prosecution case and in which case the accused would be entitled to an acquittal or the explanation may be held to be so reasonably true that it will pro tanto throw reasonable doubts on the prosecution version with the result that the State would not have discharged the onus of proof imposed on it by satisfying the Court beyond reasonable doubt of the prisoner's guilt and in which case also the accused would be entitled to an acquittal.
But of course if the explanation given by the accused is on the face of it improbable, inadequate or unconvincing or contradictory, or a manifest after-thought, no Court would come to the conclusion that that explanation may reasonably be true. But even then the failure of the accused's explanation getting no importance attached to it would not render the prosecution case stronger and it must affirmatively and satisfactorily establish the guilt of the accused.
In short, it is for the prosecution to establish the guilt of the accused, and not for the accused to establish his innocence. (See also Otto George Gfeller v. The King, AIR 1943 PC 211 (Z39); Keshbdeo Bagat v. Emperor, AIR 1945 Cal 93 (Z40); Nandlal v. Emperor, AIR 1941 Oudh 618 (Z41); Sapattar Singh v. State, AIR 1953 All 136 (Z42); In re, Gangaraju AIR 1950 Mad 778 (Z43); In re Kaliaperumal, AIR 1954 Mad 1088 (Z44); Badal Samser Ali v. State, AIR 1952 Assam 97 (Z45); Babu Lal v. State, AIR 1950 All 631 (Z46); Robert Stuart Wanchope v. Emperor, ( ILR 61 Cal 168 : AIR 1933 Cal 800) (Z47); Istahar Khondkar v. Emperor, ILR 62 Cal 956 (Z48).
48. Bearing these principles in mind, if we examine the facts of this case as has been done, the five clinching circumstances set out above affirmatively and satisfactorily have established the guilt of the accused persons for the offences for which they have been convicted and the ex planation put forward by them is so improbable inadequate, unconvincing and a manifest afterthought, that no Court can come to the conclusion that it might reasonably be true. Point 4 fails.
49. In the result, the convictions of accused 1 to 5 and 7 by the lower Court are irreproachable and they are confirmed. In regard to the sentence, the learned advocates have pressed several circumstances for mitigating the punishment. This case has been going on from 14-10-1955. The evidence in this case also shows that these accused were nowhere near or were not likely to be anywhere near producing a passable hundred rupee currency note.
Thanks to the vigilance of the C.I.D. Police Inspector Sri Sanjeeva these nefarious activities have been nipped in the bud. The accused after this experience are unlikely to repeat this offence. In these circumstances I feel that the punishments may legitimately be halved and I do so accordingly.
50. In the result, C. A. No. 497 of 1956 is allowed and accused 6 is acquitted. C.A. Nos. 495, 496, 510 and 513 of 1956 are dismissed with the above modification in regard to the sentences.
51. I endorse the well-merited appreciations of the learned Assistant Sessions Judge that P. Ws. 1 and 46 have shown commendable patience and industry, as well as promptness and despatch when called for, in the matter of unearthing this conspiracy and bringing to book the offenders. It is hoped that this good work will be recognised by the authorities.
52. I place on record also my appreciation of the painstaking judgment of the Assistant Sessions Judge Mr. M.S. Sarangapani Mudaliar.
53. Accused 1 and Accused 7 are provisionally placed in Class B.
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