Karnataka High Court
Sri T P Basavaraju S/O. R Puttappa vs Central Bureau Of Investigation on 1 June, 2012
Author: V.Jagannathan
Bench: V.Jagannathan
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated the 1st day of June 2012
:BEFORE:
HON'BLE MR.JUSTICE : V.JAGANNATHAN
CRIMINAL APPEAL No. 212 / 2009
BETWEEN:
R
Sri T.P.Basavaraju,
Aged about 48 years,
S/o R.Puttappa, R/o the premises
bearing No.6/2, 'Sri Punya Nilaya',
1st Main, Tavarekere, Tavarekere Post,
Bangalore-560 081.
...Appellant
( By Sri C.V.Nagesh, Senior Counsel)
AND:
Central Bureau of Investigation,
Bellary Road, Bangalore.
...Respondent
( By Sri C.H.Jadhav, Advocate. )
Criminal Appeal filed under Section 374(2) of the
Cr.P.C. praying to set aside the judgment dated
5.2.2009 passed by the XXI Addl. City Civil & S.J., &
Spl. Judge for CBI Cases, Bangalore (CCCH-4) in
Spl.C.C.No.188/2001, convicting and sentencing the
appellant/accused for the offences p/u/s 7, 13(1)(d)
read with Section 13(2) of Prevention of Corruption Act
1988 as stated therein.
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This appeal coming on for hearing this day, the
court delivered the following:
JUDGMENT
This appeal is by the accused who has been convicted in respect of the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 and sentenced to 3 years R.I. and Rs.25,000/- fine in respect of the offence under Section 7 of the P.C.Act and similar sentence in respect of the other two offences as well.
2. The case of the prosecution as per the complaint lodged by the complainant Mueen Farooq (PW-4) is that the complainant being the proprietor of M/s.Ambassador Garments, approached the accused who at the relevant time was the P.R.O and the complainant wanted to know the formalities to be followed for getting the IEC code. Any person who intends to do import or export business has to obtain the IEC code from the office of the Joint Director General of Foreign Trade (JDGFT), which is situated at -3- Kendriya Sadan, Koramangala, Bangalore. The accused said to have demanded Rs.500/- as the advance amount to explain the formalities and to get the IEC code allotted within 3 or 4 days. It is the further case of the complainant that after having met the accused on 15.06.01 as aforesaid, he again went and met the accused on 18.06.01 at 11.30 a.m., accompanied by the Manager of the Ambassador Garments namely Ravi Joseph and as the accused at that time also said to have been demanded Rs.1,000/- as bribe, so that the accused would take all necessary steps for getting the IEC code allotted in 2 or 3 days to the complainant.
3. The aforesaid complaint (Ex.P7) was lodged on 19.06.01 and was received by the learned JMFC on 25.06.01. It is also the prosecution case that on the very same day of lodging of the complaint i.e., on 19.06.01, the conversation that took place between the complainant and the accused was also recorded in a Micro cassette Recorder ('cassette' for short). Thereafter, Ravi Joseph mentioned above contacted the accused over phone from the CBI office and then, the -4- accused told Ravi Joseph to come with the application at around 12.30 p.m. The entrustment mahazar was drawn on 26.06.01 at about 10.30 a.m. as per Ex.P1. Thereafter, the complainant (PW-4), the shadow witness (PW-1) and Ravi Joseph went to the office of the accused accompanied by the panch witness as well. It is the prosecution case that the accused demanded and accepted Rs.1,000/- from the complainant and the money was recovered from the accused and the hand wash of the accused also tested positive. The trap mahazar was drawn as per Ex.P2. On completion of investigation, the charge sheet was submitted against the accused in respect of the offences first above mentioned.
4. In order to bring home the guilt of the accused, the prosecution examined PWs 1 to 8 and got marked 19 documents along with 12 M.Os. On the side of the accused, Exs.D1 to D5 were marked. Accused led no defence evidence.
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5. Learned Judge of the trial court after appreciating the evidence on record held that the prosecution had brought home the guilt of the accused beyond all reasonable doubt and whatever the discrepancies pointed out by the defence were not sufficient enough to cast a doubt on the prosecution case. Relying on the evidence of PW-4 the complainant, PW-1 the shadow witness, PW-3 the panch witness and PW-5 the I.O., the trial court therefore held that the case against the accused has been brought home by the prosecution beyond all reasonable doubt and the necessary ingredients namely, demand of the bribe amount, acceptance of the bribe amount by the accused and the amount being recovered from the accused therefore had established the case of the prosecution. Thus, after considering the evidence on record, the trial court took up the aforesaid view and consequently, the appellant was convicted and sentenced as mentioned earlier.
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6. Appellant being aggrieved by the trial court's verdict of conviction and sentence passed has preferred this appeal.
7. I have heard Sri.C.V.Nagesh, learned Senior Counsel for the appellant and Sri.C.H.Jadhav, learned Counsel for the respondent-CBI and also perused the entire material on record. Both sides argued extensively by referring to the testimony of the witnesses examined before the trial court and also placed reliance on several judgments of the Apex Court.
8. Sri.C.V.Nagesh, learned Senior Counsel for the appellant referred to various defects in the prosecution case which according to him, would give raise to doubt the case of the prosecution and therefore, the trial court was in error in ignoring the infirmities in the prosecution case and as such, the conclusion that the case is proved beyond reasonable doubt itself is a perverse conclusion of the trial court. In order to substantiate the aforesaid contention, learned Counsel for the appellant put forward the following submissions. -7-
9. The first of the contention put forward is that the complainant is said to have approached the accused for the purpose of obtaining the IEC code and the evidence on record would go to show that the complainant had no business at all as on the date of approaching the accused, in as much as, the business of the complainant has been wound up following the court order and this was as far back in January, 2001 itself. Therefore, when the complainant had no business whatsoever, he could not have approached the accused for allotment of IEC code. In this connection, the evidence of PW-4 was referred to.
10. The next contention put forward is that the evidence on record would go to show that one Ravi Joseph was present through out the episode and the entrustment mahazar speaks about the role played by Ravi Joseph and even in the complaint, it is stated that Ravi Joseph was the Manager of the Garment business of which, the complainant was the proprietor. Since Ravi Joseph was the only person who visited the office -8- of the accused on the day of the trap i.e., on 26.06.01 which is evident from the visitors' book Ex.P3, the prosecution ought to have examine the said Ravi Joseph, but his non-examination is a vital defect in the prosecution case. In the light of the evidence on record and in particular that of PW-6 H.N.Vishwanath, who has deposed in his evidence that only one person was present in the chamber of the accused, it is also argued that it was Ravi Joseph who spoke to the accused and talked to him as is evident from the entrustment mahazar itself and it was from Ravi Joseph that accused had demanded the bribe amount and not from the complainant. For all these reasons, non- examination of Ravi Joseph is a vital defect in the prosecution case and the omission examine the said witness is also an indicative of the possibility of the said witness not supporting the prosecution case had he be examined.
11. The next serious infirmity in the prosecution case according to learned Senior Counsel for the appellant is that the prosecution has not been able to -9- establish beyond all reasonable doubt as to what was the bribe amount demanded by the accused. A careful examination of the evidence on record would go to show that at one stage, the accused said to have demanded Rs.500/- as advance and Rs.1,000/- as the bribe amount as per the contents of the complaint Ex.P7. But in the course of evidence, the complainant examined as PW-4 has stated that the demand by the accused was Rs.2,500/- and it was reduced to Rs.2,000/- and finally, the accused asked the complainant to come with the part of the bribe amount i.e., Rs.1,000/-. Thus, the prosecution has not been able to establish beyond reasonable doubt what exactly was the amount of bribe demanded by the accused. For this, learned Senior Counsel also referred to the recording of the conversation in the cassette which has been culled out in the entrustment mahazar itself Ex.P1 and the conversation between the accused and the complainant as found in the entrustment mahazar is totally silent as to the amount of bribe demanded by the accused. Therefore, when the prosecution has not been
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able to establish what exactly was the bribe amount demanded by the accused, it cannot be said that the basic factor of actual bribe amount, having been proved by the prosecution.
12. The next infirmity in the prosecution case referred to by the learned Senior Counsel is that there is also serious doubt as to the possibility of the complainant accompanied by shadow witness PW-1 visiting the office of the accused on the day of trap i.e., on 26.06.01. For this, learned Senior Counsel referred to Ex.P3 which is the visitors' register maintained in the office of the accused and in the said register, the only person said to have visited the accused on 26.06.01 has been shown as Ravi Joseph and none else. In other words, if the complainant (PW-4), shadow witness (PW-
1) and the I.O.(PW-5) had accompanied the complainant along with Ravi Joseph, the visitors' register ought to have reflected this position. Therefore, the document Ex.P3 produced by the prosecution read in the light of the evidence of PW-6 H.N.Vishwanath would give raise to doubt as to the number of persons who have visited
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on the relevant date. Therefore it cannot be said that the complainant, shadow witness as well as PW-3 Sathyamurthy all had accompanied the complainant along with PW-5 the I.O. to the office of the accused. As such, this serious defect in the prosecution case also give raise to doubt the version as projected before the court by the prosecution through its witnesses. For all these reasons also, the trial court's finding cannot be sustained in law.
13. The discrepancy in the evidence with regard to the manner of the bribe amount being paid to the accused and recovery from him also give raise to doubt the case of the prosecution and further, to reinforce the defence argument that except Ravi Joseph, no other person had entered the chamber of the accused, in this regard, referring to the evidence on record, it is submitted that three different versions are on record with regard to the manner of the bribe amount being paid and accepted by the accused.
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14. According to PW-4 the complainant, the bribe amount was accepted by the accused with his hands and it was then put into the pocket by the accused and from the pocket of the accused, the money was recovered. The second version that emerges from the evidence on record is that the bribe amount was found in a book as has been spoken to by PW-3 the panch witness and yet another version that comes out from the evidence on record is that the amount was found in the table drawer as spoken to by PW-1. Therefore, where exactly was the amount has not been clearly established by the prosecution and the aforesaid variance in the testimony of the three witnesses gives raise to the presence of each one of them at the time of the incident, because had they been present at the same time, there would not have been occasion for such variance in the evidence with regard to the manner of the bribe amount being given to the accused or the mode by which the amount was recovered from the accused. Thus there is a serious doubt in the case of the prosecution and the
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court below had not bestowed its attention on this aspect of the matter.
15. The next of the infirmity in the prosecution case referred to by learned Senior Counsel is that the very foundation of the prosecution case is that the complainant went along with the application and met the accused and sought for the allotment of IEC code. It is in this connection, the accused said to have demanded the bribe amount. Even in the complaint, there is reference to the application, but however, no such application was recovered by the CBI officers on the day of the trap. On the other hand, the evidence on record would go to show that the application was presented on the following day i.e., on 27.06.01 and on the said date itself it was processed and allotment was made. Had the complainant presented the application on 26.06.01, which according to the witnesses was found on the table of the accused, nothing prevented the prosecution from seizing the said application on the said day itself to form part of its material. Non-seizure of the application on the day of the trap also goes to
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show that no application was given by the complainant to the accused on 26.06.01 and this also gives raise to doubt the prosecution case.
16. It is then argued by the learned senior Counsel that it is clear from the contents of the entrustment mahazar that the conversation between the accused and the complainant, the accused and Ravi Joseph, as well as what transpired in the office of the accused on the day of the trap were all recorded in the Micro cassette recorder. Except that is culled out in the entrustment mahazar Ex.P1, the prosecution has not been able to place on record the contents of the cassette recorder to corroborate the testimony of PW-4, 5 and 3 with regard to the demand made by the accused and amount of bribe demanded and the receipt of the bribe amount by the accused. As the cassette recorder is totally silent and nothing is brought out on record as to what it contains except there has been mention in the entrustment mahazar, the prosecution therefore has not been able to prove beyond reasonable doubt its case that the accused demanded the bribe amount and
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accepted the same. Therefore, the absence of the tape recorder conversation being placed on record, the case has projected through mouth of PWs 1, 3 and 4 cannot be believed at all. The trial court lost sight of this important aspect of the case.
17. Yet another contention put forward by the learned senior counsel for the appellant is that, out of the eight witnesses examined on behalf of the prosecution, P.W.4, who is the complainant, is an agent of the C.B.I. In other words, he is an informant to the C.B.I. in a number of cases and this fact has not been denied by P.W.5 Chacko and P.W.8 Guruprasad, the I.O. of the C.B.I. and, therefore, the testimony of P.W.4 ought to have been scrutinized with care. But, this was not done by the trial court. Likewise, it is submitted that P.W.1 shadow witness and P.W.3 panch witness were also the stock witnesses for the C.B.I. as they have been witnesses for the investigating agency in more than one case. Therefore, the evidence of these witnesses also requires to be considered very carefully
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so as to rule out the possibility of the witnesses trying to implicate the accused falsely in the case.
18. Another contention put forward is with regard to the accused giving explanation during the trap mahazar. It is the prosecution case that the accused has stated that he had received the amount as a complement from P.W.4. But, this statement is said to have been made before P.W.5 Chacko, the I.O. and, therefore, the trial court could not have relied on the statement made before the C.B.I. officer as such a statement is inadmissible. In this regard, reliance was placed on the Apex Court decision reported in AIR 1954 SC 15.
19. Another ground put forward to disbelieve the prosecution case is that, the accused was exonerated in the departmental inquiry and the very same witnesses examined before the inquiry officer were also the witnesses in the trial court for the prosecution. Moreover, the inquiry officer took note of the entire material before him, which also included the charge
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sheet as well. Thus, when the entire material was before the inquiry officer and after considering the same, the inquiry officer found that the case against the accused had not even been probablized, on the same set of facts and the witnesses also being the same, the trial court could not have held otherwise. In this regard, the learned senior counsel placed reliance on the Apex Court decision reported in 2011 Cri.L.J. 1747 and also on another decision reported in 1996 SCC (Cri) 897.
20. In the light of the aforesaid contentions put forward, it is argued by the learned senior counsel that the defects pointed out would, therefore, give rise to doubt the prosecution case and the circumstances referred to above having emerged from the evidence on record, it cannot be said that the case against the accused has been proved to the hilt. On the other hand, it is argued that if the entire evidence is looked as a whole, serious doubts arise with regard to the case of the prosecution and, therefore, such being the evidence on record, the trial court could not have relied upon the testimony of P.Ws.1, 3 and 4 in a narrow compass,
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ignoring the other defects in the prosecution case and as the very vital part of the prosecution case itself is in serious doubt, the conviction of the appellant, therefore, cannot be upheld and in this connection, my attention was drawn to the Apex Court decision reported in 1976 Cri.L.J. 1176.
21. Hence, to sum up, it is argued that if the entire evidence is looked from holistic angle, reasonable doubt arises in the case of the prosecution and the learned trial judge, therefore, ought to have given doubt benefit to the accused instead of convicting him. Hence, the appeal be allowed by setting aside the judgment of conviction and sentence passed by the court below.
22. The learned counsel for the respondent-C.B.I., on the other hand, also relying the very same evidence on record, argued that the prosecution has proved its case beyond all reasonable doubt and the defects pointed out by the appellant's senior counsel are very minor in nature and will not affect the core of the prosecution case. It is submitted that, in a trap case,
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what is required to be proved by the prosecution is whether there was demand of bribe by the accused and secondly, whether the evidence shows the accused having accepted the bribe amount and thirdly, whether the bribe amount was recovered from the accused. These three essentials have been established by the prosecution through the testimony of P.Ws.1, 3 and 4. Particular reference was made to the evidence of P.Ws.1 and 4 to contend that the complainant had deposed in detail about the accused demanding the bribe amount and then the amount being given by the complainant and the accused receiving the same in his hands and the hand wash of the accused turning the chemical solution into pink colour has confirmed the receipt of bribe amount by the accused. Recovery is also established as is clear from the trap mahazar Ex.P-2. Therefore, the evidence placed by the prosecution does not give rise to any doubt muchless reasonable doubt. The material placed on record is more than sufficient to hold that the case against the accused has been brought home to the hilt.
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23. Apart from making the aforesaid submissions, the learned counsel for the respondent also referred to the evidence of the material witnesses P.Ws.1, 3 and 4 and to the trap mahazar to contend that the accused has accepted the bribe amount, though under the pretext of receiving the same as complement. As such, nothing more is required to be proved by the prosecution.
24. As far as the complainant not having an establishment or a business concern is concerned, the evidence of P.W.4 was referred to in this regard to contend that from 1999 onwards, the complainant has been doing the business in garments and the evidence of P.W.7 also makes it clear that for a person who intends to do import or export business, he has to obtain a code number from the office of RJDGFT and, therefore, in view of the evidence of P.W.7 with regard to the procedure to be followed, it is not necessary for a person to show that he is actually carrying on the business. Therefore, the contentions put forward to the
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contrary by the appellant's senior counsel does not merit any consideration.
25. As far as the application is concerned, the evidence of P.W.4 was referred to, to argue that the application which was presented on 26.6.2001 was the very same application that was again presented on 27.6.2001 and, therefore, the question of no application being presented by the complainant before the accused on 26.6.2001 does not arise.
26. As far as the shadow witness and the panch witness being the stock witnesses for the prosecution is concerned, it is submitted that the said persons were the witnesses for the first time in the present case and merely because subsequently also they had been witnesses for the prosecution does not render their evidence inadmissible but, on the other hand, the evidence only requires to be carefully examined.
27. As far as non-examination of Ravi Joseph is concerned, it is argued by the learned counsel for the respondent that the said person, had he been examined,
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would have repeated what was said by P.Ws.1, 3 and 4 and, therefore, in order to avoid multiplicity of evidence, Ravi Joseph was not examined and, as such, the said defect pointed out by the appellant's senior counsel also is not a serious one to doubt the case of the prosecution.
28. As regards the manner of receiving the bribe amount is concerned, the learned counsel for the respondent argued that the discrepancy referred to by the appellant's senior counsel is not a major one inasmuch as whether the amount was recovered from the book or the table drawer makes no difference so long as recovery was effected from the accused. As such, not much advantage can be gained by the defence from the infirmity as to the manner of the bribe amount being received by the accused. Nevertheless, it is pointed out that the fact that the hand wash of the accused turned the chemical solution into pink colour is sufficient indication of the accused having accepted the bribe amount. The fact that the currency notes recovered tallied with the currency notes mentioned in
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the entrustment mahazar is also to be taken note of and the trial court has, therefore, considered the evidence very carefully and has taken the view that the prosecution has brought home the guilt of the accused beyond all reasonable doubt.
29. As regards the contention put forward concerning the accused having been given a clean chit in the department inquiry is concerned, the learned counsel for the respondent drew my attention to the reasons given by the learned trial judge in the course of his judgment and pointed out that in the domestic inquiry, P.W.4 complainant, Ravi Joseph and P.W.5 Chacko were not examined and that was the reason for the domestic inquiry being held in favour of the accused, whereas, in the trial court, these three witnesses were examined and, as such, the trial court had more material before it than the inquiry officer. Hence, the accused having been exonerated in the domestic inquiry is not of much importance. In regard to this aspect, reliance was placed on the Apex Court decision reported in (2009)1 SCC (Cri) 922.
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30. As far as the other defects pointed out by the appellant's senior counsel are concerned, the learned counsel for the respondent, referring to the Apex Court decision reported in 2004 SCC 1908, argued that minor flaws in the prosecution evidence should not be given undue importance and, as regards the variation in the mode of demand or acceptance aspect is concerned, reliance is placed on the decision of the Apex Court reported in (2006)1 SCC (Cri) 346 to contend that minor variance as regards the mode of demand was of no consequence.
31. As regards the variation in the bribe amount is concerned, the learned counsel for the respondent, referring to the complaint Ex.P-7, argued that Rs.1,000/- was demanded by the accused and it was the said amount that was given to him by the complainant and, therefore, the variation in the bribe amount also does not arise in the instant case. Once it is shown that the accused had accepted illegal gratification in pursuance of the demand made by him,
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that could be sufficient evidence against the accused so as to bring him within the ambit of Sections 7, 13(1)(d) read with 13(2) of the P.C.Act. Reliance is placed in support of the above submission on another Apex Court decision reported in (2009)1 SCC (Cri) 520.
32. In the light of the aforesaid arguments, the learned counsel for the respondent-C.B.I. submitted that the judgment of the trial court convicting the appellant requires no interference at the hands of this court and the appeal, therefore, be dismissed.
33. Having thus heard both sides and taking note of the contentions put forward mainly by the learned senior counsel for the appellant, this is a case where although P.W.4 complainant, P.W.1 shadow witness and P.W.3 panch witness have supported the prosecution case, still, in the light of the contentions put forward by the appellant's senior counsel, it has to be seen whether the case against the appellant has been proved by the prosecution beyond all reasonable doubt. If the evidence taken on the whole gives rise to doubt the
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prosecution case or, in other words, if the defence theory is probablized from the material on record, then the doubt benefit ought to go to the accused. What is reasonable doubt is explained by the Apex Court in the case of State of M.P. Vs. Dharkole @ Govind Singh, reported in 2005 SCC (Cri) 225. Dealing with the expressions "proof", "standard of proof", "proof beyond reasonable doubt", "benefit of doubt" and "reasonable doubt", the Apex Court has observed thus at paragraphs-10, 11 and 12:
"10. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case? Referring to of probability amounts to 'proof' is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See "The Mathematics of Proof II": Glanville Williams:
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Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342).
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual
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and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.
12. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof.
Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v.
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Krishna Gopal and Anr. (AIR 1988 SC 2154)."
34. In another case viz., State of Punjab Vs. Karnail Singh, reported in 2004 SCC (Cri) 135, dealing with the expression "proof beyond reasonable doubt", the Apex Court has observed thus at paragraph-12:
"12. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See: Gurbachan Singh v. Satpal Singh and Others [AIR 1990 SC 209]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC 840]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable
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because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties."
(Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. (See: Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra (1974 (1) SCR 489), State of U.P. v. Krishna Gopal and Anr. (AIR 1988 SC 2154), and Gangadhar Behera and Ors. v. State of Orissa (2002 (7) Supreme 276)."
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35. Keeping the aforesaid principles in view, it has to be seen whether in the instant case, the prosecution has proved its case beyond all reasonable doubt. As has been observed by the Apex Court in the aforementioned cases, the reasonable doubt is not an imaginary or a mere possible view but a fair doubt based upon reason and commonsense and such a doubt must grow out of evidence in the case. Keeping the aforesaid principles and also the material placed by the prosecution on record, whether there arises a reasonable doubt in the case of the prosecution is the sole question to be answered particularly in the backdrop of the contentions put forward by the learned senior counsel for the appellant.
36. The specific case of the prosecution as per the charge levelled against the accused and also in the light of the complaint averments is that, the accused demanded Rs.500/- as bribe to explain the formalities to the complainant and this demand was made on 15.6.2001. Thereafter, on Monday (18.6.2001), when the complainant, along with Ravi Joseph, Manager,
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went and met the accused, the accused is said to have demanded Rs.1,000/- as bribe. Therefore, the prosecution has to prove before the court beyond all reasonable doubt that the accused first demanded Rs.500/- on 15.6.2001 and on 18.6.2001 Rs.1,000/- as bribe amount and thus, the total amount of bribe demanded was Rs.1,500/-.
37. P.W.4 Hussain Mueen Farooq is the complainant and in the course of his examination-in- chief, he has deposed that when he met the accused on 15.6.2001, the accused told him to comply with certain formalities by going to the basement floor and collect the application form and thereafter to come and approach the accused. Thus, on 15.6.2001, even according to P.W.4, there was no demand of Rs.500/- as advance amount as stated in the complaint. Secondly, in the very same examination-in-chief, P.W.4 has gone on to depose that on 18.6.2001, he went along with Ravi Joseph and met the accused and then, the accused told the complainant to comply with some more formalities and then told the complainant to pay bribe amount of
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Rs.2,500/- for which the complainant was not inclined and finally, the accused brought down the amount to Rs.2,000/-. Again, in the examination-in-chief, P.W.4 has gone on to depose that when he met the accused after lodging of the complaint on 19.6.2001 being armed with micro-cassette given to him by the C.B.I., the accused did not accept the application but asked the complainant to come with part amount of the bribe amount i.e., Rs.1,000/- and asked the complainant to pay the remaining bribe amount after the work was done. All these were recorded in the cassette, which was in the pocket of the complainant, and he handed over the same to the C.B.I.
38. Thus, from the aforesaid evidence of P.W.4 complainant in the examination-in-chief, seen in the light of the specific averment made in the complaint Ex.P-7, it can be said that the prosecution has not been able to establish what exactly was the amount of bribe demanded by the accused. Since, according to P.W.4, the conversation between him and the accused was recorded in the cassette and the cassette was given to
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the C.B.I., in the entrustment mahazar which was drawn on 26.6.2001, there ought to have been mentioned in the entrustment mahazar that the accused demanded part of the bribe amount i.e., Rs.1,000/- to be given to the accused.
39. Though in the entrustment mahazar Ex.P-1, the conversation that took place between the accused and the complainant has also been mentioned at page Nos.2 and 3, a plain look at the conversation that took place between the two does not indicate as to what was the bribe amount demanded by the accused. There is no mention of the accused demanding either Rs.500/- as advance amount or Rs.1,000/- as the bribe amount nor is there any mention of the accused having demanded on 18.6.2001 Rs.2,500/- and bringing it down to Rs.2,000/-. The entire conversation is totally silent on the amount of bribe. Therefore, the prosecution, at the very beginning, had not been able to show what exactly was the bribe amount demanded by the accused from the complainant.
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40. This conclusion gets further strengthened by the evidence of P.W.1 shadow witness, who had deposed to the effect that when he and the complainant met the accused, the complainant asked the accused as to how much amount he should give to the accused. P.W.1 has also stated that, at that time, the accused did not say anything by quoting the figure. If at all the bribe amount was settled at either Rs.500/- as advance or at Rs.1,000/- or at Rs.2,000/- to be paid later, there was no necessity for P.W.4 to have asked the accused as to how much amount to be given to the accused. From all these evidence on record and the micro-cassette also not coming to the help of the prosecution in throwing light on the exact amount demanded by the accused, the prosecution, therefore, cannot be said to have proved beyond reasonable doubt as to what exactly was the amount of bribe demanded by the accused. It is not the case of the complainant in his complaint Ex.P-7 that the accused demanded Rs.1,000/- as part of the bribe amount and that the balance should be paid later on. This is a basic defect in the prosecution case.
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41. As far as the complainant not having the garment business and, therefore, could not have made the application for IEC code number is concerned, no doubt, it has been brought out from the evidence of P.W.4 complainant that, though the complainant was running the garment business during 1999, it was closed in December 2000 and January 2001 and the complainant was evicted by the police in the month of January 2001 and further, it has been admitted by P.W.4 that he did not register his business with the E.S.I. Corporation or the P.F. organisation and had not registered under the Factories Act, but only registered under the Shops and Establishments Act and that premises Nos.367 and 362 being out of possession of the complainant following the criminal court directing the police to secure the keys of the premises and P.W.4 also did not take any other PAN number in the name of the proprietary business or in his individual capacity and that between 1999-2001, no cooking was done in the premises, all these material referred to by the learned senior counsel for the appellant will have to be
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analyzed in the light of the evidence of P.W.7 Shakunthala Naik, Foreign Trade Development Officer.
42. P.W.7 Shakunthala Naik, Foreign Trade Development Officer, in the examination-in-chief has deposed to the effect that any person, who intends to do import or export business, has to obtain a code number from the office of the RJDGFT and towards that end, the said person has to file an application along with a demand draft, bank certificate with regard to the bank account and permanent account number issued by the Income-Tax department. P.W.7 has not stated in the course of his evidence nor has it been brought out from the cross-examination of this witness that, before applying for IEC code, a person or applicant necessarily will have to show that he is running a business. Therefore, in the absence of anything being brought out in this regard from the evidence of P.W.7, it cannot be said that the complainant was ineligible to make an application for grant of IEC code merely because what has been deposed to by him with regard to closing of the
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unit and the keys being taken over by the police. As such, this defect referred to by the learned senior counsel for the appellant is not a serious one to throw doubt on the prosecution case.
43. Now, coming to the crucial aspect of the complainant accompanied by the shadow witness P.W.1 going to the chamber of the accused, it is the contention of the learned senior counsel for the appellant that on 26.6.2001, only Ravi Joseph had entered the office of the accused and none else and, therefore, the possibility of P.W.4 meeting the accused is a remote one. The evidence reveals the following.
44. Strong reliance is placed on Ex.P-3 visitors' register by the appellant's senior counsel to contend that only Ravi Joseph entered the office of the accused on the day of trap. Ex.P-3 visitors' register, which has been marked in evidence through P.W.1 reveals that, as per the said document on 26.6.2001, the entries are found at page-182 of Ex.P-3 and at Sl.No.2688. The name of the person who visited the office is shown as
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Ravi Joseph and on behalf of M/s Ambassador Garments and the purpose is shown as official and the time of visit as 12.50 and the person whom Ravi Joseph wanted to meet has been shown as P.R.O. Thus, as per the said document, on 26.6.2001, only Ravi Joseph had signed the visitors' register and none else and much less P.Ws.1, 3 or 4. Though it is argued by the learned counsel for the respondent that the complainant and the shadow witness also had accompanied Ravi Joseph and it was not necessary to mention everybody's name in the visitors' book, the evidence on record will have to justify this contention taken.
45. P.W.6 Vishwanath, an U.D.C. working in the office of the Joint Director General of Foreign Trade, Kendriya Sadana, Koramangala, in the course of his examination-in-chief, has deposed to the effect that on 26.6.2001 at about 1.00 p.m., the accused called him to his chamber for verification of the application of M/s Ambassador Garments. The witness states that, may be one or two persons were present in the chamber of the accused as he does not clearly remember, but again
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goes on to say more convincingly that as far as he remembers, there was only one person present in the chamber of the accused. This witness was declared hostile by the prosecution as he never mentioned about the presence of either P.W.1, 3 or 4. Even in the course of his cross-examination, it has not been brought out by the prosecution that, apart from one person mentioned by P.W.6, there were three more persons present or, at least, the complainant was present in the chamber of the accused. Thus, in the entire evidence of P.W.6, it has not been even suggested that, apart from one person mentioned by the said witness, there were three other persons or at least the complainant was present.
46. Therefore, a combined reading of Ex.P-3 and the evidence of P.W.6 gives rise to take the view that on 26.6.2001, when P.W.6 went to the chamber of the accused at around 1.00 p.m., there was only one person present. The contention put forward by the appellant's senior counsel that the said one person mentioned by P.W.6 is none other than Ravi Joseph cannot be dismissed as having no substance in it, particularly in
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the light of Ex.P-3 visitors' register mentioning only the name of Ravi Joseph having visited the office of the accused at around 12.50 p.m.
47. The next contention that requires to be examined in the light of the evidence on record is, as to whether the prosecution has been able to establish beyond reasonable doubt the accused having accepted the bribe amount from the complainant. The evidence in this regard will have to be appreciated in the light of the preceding discussion with reference to Ex.P3 and the presence of only one person in the chamber of the accused on the date of the trap.
48. It is the case of the prosecution that, the complainant PW-4 accompanied by PW-1, the shadow witness, went to the chamber of the accused and on demand by the accused, the complainant paid Rs.1,000/- to the accused.
49. PW-4, the complainant, has deposed in his evidence that, on approaching the accused, the accused asked whether the money has been brought and then
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the accused opened a book which was with him and asked PW-4 to put the money in that book. In view of the instruction given to him, PW-4 was little hesitant to keep the amount in the book and then, he went out to contact CW-8 (PW-5) T.C.Chacko and after taking instruction, again came inside and at that time Ravi Joseph and PW-1 Ananda Ram were in the office of the accused and then the accused asked Ravi Joseph and Ananda Ram to see whether anybody was watching from outside and thereafter the accused received the money from the complainant through the right hand and counted it and said it is only Rs.900/- and again after rechecking, the accused said it is Rs.1,000/- and then the said amount was kept by the accused inside his table drawer. Thus, it is clear from the aforesaid evidence of PW-4 in the examination-in-chief that, the accused received the bribe amount through his hands and then put the money into his table drawer.
50. In the course of his cross-examination, PW-4 has given a different version altogether by deposing to the effect that the investigating officer PW-5 Chacko
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seized M.O.5 which is the bribe amount from the pocket of the accused. The version spoken to by PW-1, the shadow witness on the other hand, is entirely different. In his evidence, PW-1 has deposed to the effect that the complainant asked the accused as to how much amount has to be given and then the accused extended one note book asking the complainant to keep the amount in the note book and if he finds it less, he would demand again, and therefore the complainant went outside and came back in a minute and then the accused extended his hands towards the complainant and the complainant gave the cash taking out it from his left side shirt pocket and the accused received the cash in his right hand and then kept the money in his left hand and then opened the drawer of the table with his right hand and then counted the notes with his right hand and then kept the notes in the table drawer.
51. As far as the recovery of the amount is concerned, this witness has deposed in the course of his examination-in-chief that, at the instance of PW-5 Chacko, the accused opened the drawer of his table and
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showed the amount and as per the instructions of the police inspector, the currency notes were taken out from the table drawer. In the cross examination, it is elicited from this witness that, immediately after the accused accepted the money, neither PW-1 nor PW-4 nor CW-2 went out of the chamber.
52. PW-3, K. Sathyamurthy, on his part has deposed in his examination-in-chief that on being questioned by Chacko, the investigating officer, the accused told that he had received the amount as compliment from the complainant and showed the right side drawer of the table by saying that the amount is kept inside a book. Further, in the course of his cross- examination, it is brought out from this witness PW-3 that the bribe amount was found inside a book in the table drawer. From the aforesaid evidence of the three witnesses PWs1, 3 and 4, we have three different versions emerging with regard to the manner of the bribe amount being passed on by the complainant to the accused. It is not very clear from the aforesaid evidence that, how the accused received the money from
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the complainant and where the money was found ultimately when it was recovered. One version is that, the amount was recovered from the pocket of the accused and second version is that, the amount was found in the table drawer and the third version is that, the amount was found in a book and the book was in the table drawer. Since PW-4 has specifically stated that he did not keep the amount in the book, but went outside and came after consulting the investigating officer, the prosecution therefore has not been able to show or prove clearly as to how the amount came into the book. If the amount was kept in the book and was taken out from the book, then the question of accused coming in contact with the bribe amount will not arise.
53. In the face of such great variance in the manner of amount being received by the accused as deposed to by these three witnesses, it becomes very difficult to believe the possibility of presence of all these three witnesses at the same time in the chamber of the accused. Had the three persons were present at the same time when the money was passed on from the
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complainant to the accused, there would not have been such great variance in their evidence. This also adds more strength to the defence argument that, except Ravi Joseph, no other person was present in the chamber of the accused.
54. Therefore, though it is argued by learned counsel Sri. C.H.Jadhav for the respondent that the discrepancy noted above is a minor one, yet, in view of the evidence of PW-6 and Ex.P3 the visiting register clearly indicating only one person was in the chamber of the accused, the prosecution ought to have established without giving room for any doubt as regards the passing of the amount from the complainant to the accused and the evidence therefore ought to have been consistent in that regard if the prosecution case has to be believed that PWs 1, 3 and 4 were all present at the same time in the chamber of the accused. Therefore, as rightly submitted by the learned senior counsel for the appellant, the prosecution has not been able to establish with certainty and with consistency the manner of the bribe amount passing on from the
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complainant to the accused. If at all, the money was found in the pocket and recovered form the pocket, the prosecution ought to have placed the book itself as one of the M.Os before the trial court. As there is no corroboration between the three material witnesses PWs 1, 3 and 4 in this regard, it becomes very difficult to accept the prosecution case that all these three persons were present at the same time when the incident took place in the chamber of the accused and this inference is drawn on the basis of not only the great variance in their evidence but also in the face of the definite evidence of PW-6 that only one person was present in the chamber of the accused and only Ravi Joseph had signed the visitors' book on that day showing the relevant time as per Ex.P3.
55. One more reason to doubt the veracity of the testimony of PWs 1, 3 and 4, apart from the above discussion, is the fact that these three witnesses had been one or the other way familiar and known to the investigating agency. It is brought out from the mouth of PW-1 that he has given evidence on behalf of CBI in
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more than one case. PW-3 has also deposed to the same effect. As far as PW-4, the complainant himself is concerned, it is suggested to the complainant that he was the informant to the CBI in a case involving one Kuppuswamy. In fact, PW-4 has gone on to admit in the course of his cross examination that he had helped one complainant for lodging the complaint against one Kuppuswamy, a telephone mechanic for getting him trapped by the CBI. In the said case, one Jeelan Basha was the complainant and PW-4 has again reiterated that he was an informer to CW-8 i.e. PW-5 Chacko. It was also suggested to the two investigating officers that PW- 4 is the regular informer to the CBI trap cases and this suggestion has not been specifically denied by the two investigating officers in the course of their cross examination. In other words, the investigating officers also do not rule out the defence suggestion that PW-4 as well as CW-2 Ravi Joseph are regular informers to the CBI. It is in the context of aforesaid familiarity of these witnesses, PWs 1, 3 and 4 with the investigating agency, the testimony of these three witnesses have to
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be examined and having examined in that light carefully, this court comes to the conclusion that the very inconsistent nature of the evidence of these three witnesses in regard to the manner of amount being paid and received by the accused gives rise to a doubt as to the presence of persons PW-6 and Ex.P3 also, though at first glance, it appears from the testimony of these three witnesses that they were present in the chamber of the accused at the relevant time.
56. It also appears from the aforesaid discussion of the evidence that Ravi Joseph was a person who has been involved right through in the case and his name appears in the entrustment mahazar itself and as per the contents of the entrustment mahazar Ex.P1, it was Ravi Joseph who spoke to the accused and it was from Ravi Joseph that the accused is said to have demanded the bribe amount. In other words, since PW-4 is not very sure as to what was the bribe amount, as has been already discussed by me, and does not know the amount that has to be paid as bribe amount and the said conversation which is incorporated in Ex.P1 the
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entrustment mahazar also not mentioning anything abut specific amount being demanded by the complainant from the accused, it therefore gives room to take the view from the aforesaid evidence on record that it was from Ravi Joseph that the accused demanded the bribe amount. Secondly, for the best reasons known to it, the prosecution did not examine Ravi Joseph in the case and therefore this is also a serious lacuna in the prosecution case which cannot be ignored. As rightly submitted by the learned senior counsel for the appellant, as only one person had entered the chamber of the accused as per Ex.P3 and the said person in all likelihood could have been Ravi Joseph, the prosecution ought to have examined the said witness. Therefore, non examination of Ravi Joseph by the prosecution gives rise to draw the inference that the said witness would not have supported the prosecution case had he been put into the witness box. Therefore, this infirmity also is a serious one and will have to be considered in favour of the accused in the light of the overall evidence on record.
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57. Another important aspect of the case is that, the accused was given a clean chit in the departmental inquiry and learned Judge of the trial court in the course of his reasoning has observed at para.19 that though the enquiry report was produced before the court, the said report cannot be looked into in favour of the accused since without examining PW-4 the complainant, CW-4 Ravi Joseph and PW-5 Chacko, the enquiry has been completed and therefore the inquiry officer held that the case was not proved against the accused. What is to be considered at this juncture is that, at the time of holding departmental inquiry, the inquiry officer had exonerated the accused of the charges levelled against him. If the complainant's case is truthful one and if he had been present in the chamber of the accused and had passed on the bribe amount and later on he informed the Lokayukta police about it i.e. the investigating officer, the complainant in all fairness ought to have appeared before the inquiry officer to support the prosecution case. The fact that the complainant remained absent and so also the
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investigating officer, is also indicative of the complainant himself not being sure of his case. This also reaffirms the view that it was only Ravi Joseph who could have been in the chamber of the accused and none else and the great variance in the testimony of PW- 1 and PW-3 with regard to the manner of payment of bribe amount and recovery from the accused also lends weight to the inference.
58. Apart from this, it has to be observed at this juncture that the Apex Court has held in the case of P.S.Rajya Vs State of Bihar (1996 S.C.C. (Cri)897) that, where the charges are identical in both the department inquiry and in the criminal case and the witnesses also being the same and if the charge could not be established in a departmental proceedings, what is there to proceed against the appellant in the criminal proceedings. This is the observation at para.17 of the aforesaid judgment. In yet another case, Radheshyam Kejriwal Vs State of West Bengal (2011 Crl.L.J.1747), a four Judge Bench of he Apex Court has held that, adjudication and prosecution are independent
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proceedings and the prosecution can be launched even before decision in adjudication proceedings, if both proceedings are initiated on same facts and the accused is exonerated in adjudication proceedings on merits, continuance of the prosecution would be abuse of process of court. Though this observation was made in the context of dealing with a case u/s 482 of Cr.P.C., the principles laid down also can be taken into consideration in the instant case as well because in the present case also, the charge levelled against the accused in both the departmental enquiry and criminal proceedings is one and the same and most of the witnesses are also common to both the proceedings. This is also a factor which ought to have been kept in view by the trial court while appreciating the overall evidence on record.
59. Now coming to the contention of the learned counsel for the respondent that the accused had accepted the bribe amount as a compliment and this has come in the evidence of PW-4 and also in the evidence of the investigating officer as well apart from
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PW-1, it has to be mentioned at this juncture that the conversation recorded between the accused and the complainant in the micro cassette recorder though was in the pocket of the complainant and was handed over to the investigating officer later on, the said recorder does not indicate the aforesaid admission by the accused. Apart from that, even if the accused had made such a statement before the investigating officer, in view of the law laid down by the Apex Court in the case of Zwinglee Ariel Vs State of M.P. (AIR 1954 S.C. 15), statement made by the accused to a police officer is not admissible and the court went on to hold at para.13 that even if such a statement is made before a Magistrate, then also it will not be admissible in evidence if it was not recorded by the Magistrate in the manner prescribed u/s 164 of the Cr.P.C. Therefore, the said contention urged on behalf of the respondent cannot come to the aid of the prosecution.
60. Thus, on a careful consideration of the entire evidence on record, there appears two possible views in this case. If the evidence of PW-1 the shadow witness,
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PW-3 the panch witness and PW-4 the complainant is looked into separately from what has been deposed by them in their examination-in-chief itself, it may be possible to take the view that the accused demanded certain amount and he received the same from the complainant and the recovery was effected from the accused. Even in this regard also, in view of my discussion earlier, the prosecution has failed to establish the exact amount of bribe demanded by the accused. At the same time, the other view that is also possible from the evidence on record is that, no demand was made by the accused from the complainant because the complainant did not know what is the amount to be paid to the accused. Secondly, the tape recorder conversation which is found in Ex.P1 the entrustment mahazar is silent about the demand made by the accused and thirdly, the prosecution has failed to establish beyond reasonable doubt as to whether Rs.1,000/- said to have been received by the accused is the bribe amount or is the part of the bribe amount. Fourthly, the presence of PWs 1, 3 and 4 has also been
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rendered rather doubtful from the evidence on record placed by the prosecution through the testimony of PW- 6 and Ex.P3. If the name of Ravi Joseph alone is found in the visitors' register Ex.P3 on 26.6.01 and not the names of PWs 1, 3 or 4, it is possible to draw the inference from the aforesaid evidence that, it was only Ravi Joseph who had entered the chamber and none else. Non examination of Ravi Joseph is also a serious infirmity in the prosecution case. The material witnesses have deposed inconsistently with regard to the manner of the amount being paid and received by the accused.
61. Three different versions emerge from the evidence on record as regards recovery of amount and at the cost of repetition, it has to be mentioned that, one version is that the amount was recovered from the shirt pocket of the accused and second one is, it was recovered from the table drawer and the third version is that it was recovered from a book.
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62. Apart from these serious defects in the prosecution case giving rise to doubt the veracity and reliability of testimony of PWs 1, 3 and 4 in particular, it is also on record that PWs 1, 3 and 4 have been witnesses for the investigating agency in number of cases and the complainant in particular being the regular informant to CBI. The last of the factor is that, the charge being one and the same and witnesses also being one and the same both in the departmental inquiry and before criminal proceedings, in the departmental enquiry the accused has been given a clean chit and PWs 4 and 5 not bothering to appear before the inquiry officer also is a factor which goes to give rise to doubt the prosecution case insofar as its reliability and trustworthiness is concerned seen from the angle of the nature of evidence deposed to by the material witnesses. Thus it is also possible to take the view from the aforesaid infirmities in the prosecution case, which have arisen out of the evidence on record, that the prosecution has not been able to prove its case beyond all reasonable doubt.
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63. It is also a settled law that the accused need not prove his case to the hilt as is required on the part of the prosecution but if the accused is able to probabalise his case even on preponderance of probabilities and raises a doubt in the case of the prosecution, a doubt which is not fanciful but a reasonable doubt emerging from the evidence on record, it would be safe to give the benefit of doubt to the accused in such circumstances, rather than convicting the accused in the face of the overall evidence on record. In this connection, the decision of the Apex Court in the case of Hari Dev Sharma Vs State (Delhi Administration) (1976 Crl.L.J. 1176) is taken into consideration. In the said case, the Apex Court set aside the conviction on the ground that the vital part of the prosecution case had not been proved and the relevant observations are as under:
" Undoubtedly there are circumstances in this case which are highly suspicious against the appellant, but the High Court having disbelieved an essential part of the prosecution case on which the other part
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was dependant, we do not consider it safe to sustain the conviction of the appellant. Accordingly, we allow the appeal and set aside the order of conviction and sentences passed against the appellant. "
64. In the instant case also, the vital part of the prosecution case or rather the consistent story of the prosecution case is that, the accused demanded Rs.500/- as an advance and then Rs.1,000/- as bribe amount, whereas from the evidence of PW-4 we have noticed that the basic version is given a go by and the witness goes on to say that the demand was Rs.2,500/- and then it was brought down to Rs.2,000/- and what was paid was only part of the bribe amount. Apart from this, we also notice the serious defect in the prosecution case with regard to non examination of Ravi Joseph and Ex.P3 in particular giving rise to doubt the possibility of presence of PW-1, 3 and 4 at the same time in the chamber of the accused and the very fact that these three witnesses have given different versions with regard to the manner of amount being given and received by the accused, it goes to further confirm that the doubt
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raised in the instant case is, as has been pointed out by the learned counsel for the appellant, are genuine doubts arising from the evidence on record and therefore the trial court could not have convicted the appellant only on the basis of a part of the evidence on record giving scope to take the view that the accused demanded and accepted the bribe amount and was recovered from him, when the other part of the evidence on record does not justify the aforesaid view and does not give scope to hold that the case of the prosecution has been proved beyond all reasonable doubt.
65. As far as the decisions referred to by the learned counsel for the respondent are concerned, I have carefully gone through them and the facts and circumstances of the cases in the decisions referred are all quite different from the one with which we are concerned in the instant case and therefore those decisions cannot come to the rescue of the respondent.
66. For the aforesaid reasons, the following order is passed:
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1. The appeal is allowed.
2. The conviction of the appellant u/s 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act is set aside. The appellant is acquitted of the charge levelled against him by giving him the benefit of doubt.
3. Bail bond shall stand cancelled and the amount, if any, deposited by the appellant shall be refunded to him.
Sd/-
JUDGE.
Srl/ckc/Dvr.