Punjab-Haryana High Court
Kiran Chander Asri vs State Of Haryana on 28 May, 2015
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
CRA-S-1070-SB-2005
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-1070-SB-2005
Judgment Reserved on :24.04.2015
Date of Decision : 28.05.2015
Kiran Chander Asri
.... Appellant
Versus
State of Haryana
.... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Argued by : Mr. T.S.Sangha, Sr. Advocate with
Mr. H.S.Sangha, Advocate,
for the appellant.
Mr. Rajesh Gaur, Addl. A. G. Haryana.
*****
PARAMJEET SINGH, J.
The appellant-accused was convicted for the offences punishable under Sections 7 and 13 of the Prevention of Corruption Act, 1988 (in short, 'the Act') by learned Special Judge, Sonipat and sentenced to undergo rigorous imprisonment for a period of two years and fine of `1,000/- under Section 7 of the Act and rigorous imprisonment for a period of two years and fine of `2,000/- under Section 13 of the Act and in default of payment of fine to undergo PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -2- CRA-S-1070-SB-2005 further rigorous imprisonment for a period of six months with the stipulation that both the sentences shall run concurrently.
The accusations which led to the trial of the appellant are that complainant-Ranbir Singh (PW 4), was the Sarpanch of Gram Panchayat, Mundlana. The said Gram Panchayat passed resolution for auction of fish-ponds in the village and sent it for approval to the appellant who fixed the auction for 15.03.1995. On that day, the appellant did not go to the village himself but deputed the Panchayat Officer who auctioned only the land of Panchayat and refused to auction the fish-ponds as per direction of the appellant. Thereafter, the auction of the fish-ponds was fixed for 22.03.1995. The complainant met the appellant who told him that if he wanted the auction of fish-ponds, he should have to pay `2000/- as bribe. The complainant expressed his inability to give the bribe at which the appellant told him in categorical terms that the complainant would have to pay `2,000/-, if he wanted to get the fish-ponds of his village auctioned. The appellant did not go to village Mundlana even on 22.03.1995 and then the auction was fixed for 06.04.1995 in consultation with the appellant, but later the appellant clearly told that there would be no auction without the payment of bribe.
Since the complainant was not intending to pay the bribe to the appellant, he went to S.P. State Vigilance Bureau, Karnal, along with application (Ex.PC) dated 04.04.1995 and also produced before him two currency notes of `500/- each and ten currency notes of `100/- each.
After receipt of the application (Ex.PC), Mr. M.S.Ahlawat, the PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -3- CRA-S-1070-SB-2005 then S.P.S.V.B, Karnal, investigating officer, wrote a letter (Ex.PN) to the Government seeking permission for the raid and the permission was received by him on 06.04.1995. Then, he wrote a letter (Ex.PO) to the Deputy Commissioner, Sonipat, for deputing some Gazetted Officer for being joined in the raiding party. The Deputy Commissioner, Sonipat, directed Ram Mehar, XEN, Irrigation, to join the raid.
On 07.04.1995, when the investigating officer reached his office, Ranbir Singh, complainant was already present there and Inspector Hari Chand, S.V.B., Sonipat, was also incidentally present there. The investigating officer prepared a list of the currency notes (Ex.PD), memo (Ex.PF) with regard to recovery of notes (Ex.PF) and memo (Ex.PE) of handing over the notes to the complainant. The investigating officer registered the formal FIR (Ex.PP) at Police Station S.V.B.Karnal. Then a raiding party was formed which went to the office of XEN, Gohana, from where Ram Mehar, XEN, was joined in the raiding party. Ram Mehar, XEN, verified the currency notes which were again handed over to the complainant. Then they all went to the office of the appellant. Hari Chand, Inspector, was deputed as a shadow witness and instructed to give a fixed signal by moving his hand over the head after the acceptance of the bribe money by the appellant. The Investigating officer himself stood at the main gate of office of the B.D.O., along with Ram Mehar, XEN. The complainant and shadow witness went to the office of the appellant. After ten minutes thereof, the shadow witness passed the requisite signal upon which the raiding party PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -4- CRA-S-1070-SB-2005 went inside the office of the appellant, who was seen putting something in the drawer after removing the same from his pocket. The Investigating Officer gave his introduction to the appellant, who after some persuasion opened the drawer of his table and took out the bribe money and handed over the same to the investigating officer. The numbers of the tainted currency notes recovered from the possession of the appellant were compared with the number of the currency notes detailed in the list (Ex.PD). The numbers tallied. Then solution of sodium carbonate was prepared in which the hands of the appellant were dipped and solution turned pink. The same test was repeated with the notes and the pocket of shirt of the appellant. Each test resulted in the solution turning pink. Each solution was put in separate pints which were sealed. The shirt and the currency notes were also put in sealed parcels. Seal after use was handed over to Ram Mehar, XEN. Before arrest, personal search of the appellant was conducted which led to the recovery of currency notes of `470/-, a gold chain and a pen. The other formalities of investigation were carried out at the spot. The hand wash, note wash and pocket wash of shirt of the appellant were sent to the FSL.
The sanction for prosecution of the appellant was obtained from the competent authority. After completion of investigation, challan against the appellant was submitted to the Special Court to face the trial.
On finding, prima facie case, the appellant was charge-sheeted under Sections 7 and 13 of the Act, to which he pleaded 'not guilty' and claimed trial.
PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -5-CRA-S-1070-SB-2005 To prove its case, the prosecution examined PW 1 Satbir Singh, PW 2 Mahender Singh, Retired Inspector, PW 3 Inder Singh Poria, PW 4 complainant-Ranbir Singh, PW 5 Ram Mehar, S.E. (Retired), PW 6 Head Constable Dalip Singh, PW 7 Jai Bhagwan, PW 8 Inspector (Retired) Hari Chand, PW 9 investigating officer, M.S.Ahlawat, DIG, Vigilance and PW 10 Silak Ram. In documentary evidence, the prosecution relied upon Ex.PA site plan of the office of Block Samiti Mundlana, Ex.PB sanction order, Ex.PC complaint dated 04.04.1995, Ex.PD list of currency notes, Ex.PE memo regarding handing over the currency notes and personal search, Ex.PF recovery memo of currency notes, Ex.PG seizure memo, Ex.PH personal search memo of the appellant, Ex.PK statement of Ram Mehar, XEN, recorded under Section 161 Cr.P.C. Ex.PL affidavit of HC Dalip Singh, Ex.PM transfer order of the appellant, Ex.PN application seeking permission for trap, Ex.PO application for joining some Gazetted Officer, Ex.PD FIR No.11 dated 07.04.1995, Ex.PQ site plan and Ex.PR report of FSL, Madhuban.
Statement of the appellant was recorded under Section 313 Cr.P.C. The appellant denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. In his defence, the appellant examined DW 1 Jagdish Ram Patwari, DW 2 Radhey Shyam and DW 3 Ramesh Chander. In documentary evidence, the defence relied upon Ex.D-1 copy of resolution No.3 dated 13.02.1995, Ex.D-2 copy of resolution No.4 dated PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -6- CRA-S-1070-SB-2005 30.03.1995, Ex.D-3 and Ex.D-4 copies of transfer orders, Ex.D-5 certificate, Ex.D-6 charge relinquish report, Ex.D-7 certified copy of order dated 30.08.1996 passed by this Court and Mark A copy of application written by Yudhvir Singh Malik.
Learned Special Judge, analyzing the evidence on record, came to hold that the prosecution had been able to bring home the charge and, accordingly, recorded the conviction and imposed the sentence as mentioned earlier. Hence, this appeal.
It is expedient to have a bird's eye view of the relevant prosecution witnesses hereunder:
(i) PW 4 complainant-Ranbir Singh deposed that the appellant was demanding bribe for getting the auction of fish-ponds conducted at village Mundlana, therefore, he approached S.P., S.V.B. Karnal, along with application Ex.PC and gave him `2000/-
which was got treated with Phenolphthalein powder by Mahender Singh Ahlawat, S.P. and thereafter a raiding party was organized which went to the office of the appellant. As per directions of the investigating officer, he handed over the money to the appellant in his office and gave the fixed signal upon which the raiding party apprehended the PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -7- CRA-S-1070-SB-2005 appellant. He also deposed about the joining of Ram Mehar, XEN in the raiding party from his office at Gohana, deputing of some official by the investigating officer to hear his conversation with the appellant, the position of the raiding party when he went to the office of the appellant, recovery of tainted currency notes from the drawer of the table of the accused, hand wash, pocket wash and note wash as well as the preparation of different memos.
(ii) PW 5 Ram Mehar, Superintending Engineer, deposed that on 07.04.1995, he was posted as XEN, Water Services Divn. Gohana. He was asked by SP Mohinder Singh Ahlawat to meet him and he had gone to Rest House and met him there. Thereafter, he accompanied the said SP to the office of BDO at Gohana Jind Road. At that time, Mohinder Singh SP alongwith some other persons was with him.
For sometime, he waited on the main road.
Thereafter, they entered the campus. They stayed at the gate of the BDO Office. After a while, they had entered the office of BDO.
PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -8-CRA-S-1070-SB-2005 From the drawer of the table, some money was taken out by the police. As per his memory, the currency notes were `2000/-
and two currency notes were of `500/- each and others were of `100/- denomination. He did not know who was a shadow witness. He did not know whether the complainant had handed over `2,000/- to S.P. Mohinder Singh Ahlawat. The hands of the appellant were washed and shirt of the appellant was washed. All the proceedings were carried out at the office of BDO. The list of currency notes was prepared at the Rest House. The list (Ex.PD) bears his signatures.
Seizure memo (Ex.PG) was also prepared in his presence which bears his signatures. The personal search memo (Ex.PH) of the appellant also bears his signatures. The money recovered from the appellant was sealed in an envelope (Ex.PJ).
(iii) PW 8 Inspector (Retired) Hari Chand and PW 9 Mahender Singh Ahlawat, investigating officer, deposed in the similar lines of PW 4 complainant-Ranbir Singh.
PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -9-CRA-S-1070-SB-2005 It is also expedient to have a bird's eye view of the defence witnesses hereunder:
(i) DW 1 Jagdish Ram Patwari proved the
resolutions (Ex.D-1 and Ex.D-2) of Gram
Panchayat, Mundlana .
(ii) DW 2 Radhey Shyam proved the transfer
orders (Ex.D-3 to Ex.D-6) in order to show that Mr. K.C.Sharma, remained posted as Commissioner of Hisar Division from 01.07.1988 to 21.12.1989.
(iii) DW 3 Ramesh Chander deposed that Yudhvir Singh Malik was posted as Deputy Commissioner, Hisar, in August, 1989. He also proved the signatures of Mr. Yudhvir Singh Malik on the letter Mark DA.
I have heard the learned counsel for the parties and perused the record.
As a first limb of his arguments, learned senior counsel for the appellant vociferously contended that the essential ingredients of Section 7 of the Act have not been established inasmuch as no official work was pending with the appellant. The appellant had nothing to do with the auctioning of fish-ponds and it was to be done by the Panchayat Officer and Gram Panchayat, therefore, he could not have shown any official favour. Learned senior counsel further contended that even if it is PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -10- CRA-S-1070-SB-2005 presumed that alleged recovery of bribe money had been effected, then mere recovery of the same from the possession of appellant is not sufficient to establish the offence. The prosecution is required to prove the demand and acceptance of money as illegal gratification but the same has not been proved at all. To substantiate his contentions, learned senior counsel relied upon Rakesh Kapoor vs. State of Himachal Pradesh 2013 (1) R.C.R. (Criminal) 211, C. Sukumaran vs. State of Kerala 2015 (2) R.C.R.(Criminal) 159 and B. Jayaraj vs. State of A.P. 2014 (2) R.C.R. (Criminal) 410.
Learned senior counsel further contended that findings recorded by the Special Court are patently erroneous to the facts on record. The Gazetted Officer, PW 5 Ram Mehar, XEN, has not supported the case set up by the prosecution. Learned senior counsel further contended that PW 5 Ram Mehar was not cited as shadow witness, rather PW 8 Inspector Hari Chand, official of the vigilance department, has been cited as shadow witness. His evidence cannot be relied upon being a police official as he is always interested in success of the case and will not depose truthfully. In support of his contentions, learned senior counsel relied upon Panalal Damodar Rathi vs. State of Maharashtra (1979) 4 Supreme Court Cases 526, Harnek Singh vs. State of Punjab 2000(2) R.C.R.(Criminal) 403 and Sanjiv Kumar vs. State of Haryana 2010 (4) R.C.R.(Criminal) 891. The appellant has specifically raised a plea of enmity with the investigating officer (PW 9 M.S.Ahlawat) which has not been correctly appreciated by the trial Court. Learned senior PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -11- CRA-S-1070-SB-2005 counsel further contended that the Special Court merely brushed aside the issue of enmity as an afterthought.
Per contra, learned State counsel vehemently opposed the contentions of learned senior counsel for the appellant and supported the impugned judgment. Learned State counsel submitted that the prosecution has proved its case against the appellant beyond the shadow of reasonable doubt. The complaint (Ex.PC) is written and signed by the complainant-Ranbir Singh in his own hand. The demand and acceptance of the illegal gratification by the appellant is fully proved on record.
I have considered the rival contentions of learned counsel for the parties and with their help perused the entire evidence on record.
In view of the arguments raised by learned counsel for the appellant, following point arises for determination:
Whether the prosecution has been able to prove the factum of demand of bribe, its acceptance and recovery from the possession of the appellant and what is the corroborative value of official shadow witness (PW 8 Inspector Hari Chand) being an official of Vigilance Department, interested in the success of case, if so its effect?
No doubt, it is true that demand of bribe and its acceptance are sine qua non for recording conviction of the accused in a case under the Act. This is to be examined in the light of evidence on record. PW 4 complainant was Sarpanch of the village and the Panchayat had to conduct the auction of fish-ponds of that village. For that purpose, the PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -12- CRA-S-1070-SB-2005 appellant is alleged to have demanded `2,000/- as illegal gratification. It is specifically mentioned in complaint that a resolution was sent to the appellant for his approval and onward forwarding to the Fisheries Department. The auction was initially fixed on 15.03.1995. On that day, the appellant did not come to the village and deputed Panchayat Officer, who refused to auction fish-ponds in view of direction of the appellant.
Thereafter, auction was fixed on 22.03.1995. The complainant met the appellant who hold him that if he wants auction of fish-ponds, he should pay `2,000/- as illegal gratification. Before handing over the bribe money, the complainant approached the SP, State Vigilance Bureau, Karnal and gave a complaint (Ex.PC) dated 04.04.1995 along with two currency notes of `500/- each and ten currency notes of `100/- each. On the basis of said complaint, arrangements were made for a trap to catch the appellant-public servant, red-handed. Perusal of evidence of PW 4 complainant-Ranbir Singh and PW 8 Inspector (Retired) Hari Chand, shadow witness, clearly reveals that there is consistency on the issue of demand and acceptance of illegal gratification from the complainant by the appellant and the same is without any contradiction. Admittedly, the complainant was the Sarpanch of the village at the relevant time. He was duty bound to auction the fish-ponds for the income of the Panchayat and resolution was already sent to the appellant for his approval. Not only this, PW 5 Ram Mehar, Gazetted Officer, has substantially supported the case of prosecution with regard to pre-trap and post-trap proceedings. He has turned hostile only with respect to the PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -13- CRA-S-1070-SB-2005 currency notes in re-examination, rather examination-in-chief on major aspect is consistent with the version given by the complainant and shadow witness. In view of this, there is no reason to disbelieve the testimonies of prosecution witnesses when PW4 specifically deposed that the appellant made a demand of `2,000/- from him. It is not in dispute that the complainant was Sarpanch and had sent resolution for approval of the appellant for auction of fish-ponds.
The plea of appellant that he had no role to play in auction of fish-ponds of the village and could not have granted any benefit to the complainant, is not sustainable. The issue of demand has been duly proved on record by the prosecution witnesses. On a scrutiny of testimony of PW 4 complainant-Ranbir Singh, it is demonstrable that there had been demand of money from him and acceptance of same by the appellant. It is pertinent to mention that B.D.P.O. is the officer through whom resolution of the Gram Panchayat is to be sent to the Fisheries Department for evaluation and thereafter the auction was to be conducted in the presence of officials of Panchayat. In view of above, it is difficult to accept the plea that the appellant had no role to play in the auction of fish-ponds and, hence, he could not have granted any favour.
There is categorical evidence of PW 4 complainant-Ranbir Singh and PW 8 Inspector Hari Chand, shadow witness and PW 5 Gazetted Officer, Ram Mehar that the raiding party reached at the spot and proceeded for laying of trap, the complainant went to the appellant and handed over the bribe money. On receiving the signal, raiding party PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -14- CRA-S-1070-SB-2005 arrived at the spot and recovered the tainted currency notes which the appellant put firstly in the pocket of his shirt and thereafter placed in the drawer. The solution of sodium carbonate was prepared with which hands of appellant were washed and solution turned pink. Same test was repeated with the currency notes and pocket of the shirt and each time sodium solution turned pink. The wash exhibits were sent for FSL report. The testimonies of PW 4 complainant-Ranbir Singh, PW 5 Ram Mehar and PW 8 Inspector Hari Chand, shadow witness clearly prove the recovery of currency notes from the possession of the appellant. The FSL report of hand wash, shirt wash and note wash clearly indicates the recovery of bribe money. The ocular testimony of prosecution witnesses has been duly corroborated by the documentary evidence.
So far as the proposition of law laid down in judgments cited by learned senior counsel for the appellant is concerned, the same is not applicable to the facts of the present case as the basic ingredients i.e. demand of bribe, its acceptance and recovery of currency notes, required for holding the appellant guilty under Sections 7 and 13 of the Act, stand duly proved beyond shadow of reasonable doubt. The judgments cited by learned senior counsel for the appellant are based on the facts of the individual cases.
The next argument of learned senior counsel for the appellant was that PW 8 Inspector Hari Chand, shadow witness, was a vigilance official and other members of the raiding party are interested witnesses, their evidence must be discarded and conviction in absence of PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -15- CRA-S-1070-SB-2005 independent corroboration is bad in the eyes of law. Learned senior counsel vehemently contended that testimony of PW 8 Inspector Hari Chand, Vigilance Department, who acted as shadow witness, should be discarded.
In Vinod Kumar vs. State of Punjab 2015 (1) RCR (Criminal) 647, the Hon'ble Supreme Court after considering various judgments has held as under:
19. Keeping in abeyance what we intend to say on the facet of anguish expressed by us in the beginning, we shall proceed to deal with the proponement of Mr. Jain that when the investigation conducted by Mr. Narinder Pal Kaushal, PW-8, is vitiated on the foundation that he has lodged the FIR, the trial is also vitiated. Though the said submission has been raised and taken note of by us as the last plank, yet we think it seemly to deal with it first as it goes to the root of the matter. On a perusal of the material on record, it is manifest that PW-8 is a part of the raiding party, a shadow witness, and admittedly had also sent the complaint through a Constable to the concerned police station for lodging of FIR. This being the factual score, we are required to take note of certain authorities in this regard. In Basawan Singh (supra), the Constitution Bench, after referring to the decision in Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322, opined that the said decision does not lay down an invariable rule that the evidence of the witness of the raiding party must be discarded in the absence of any independent corroboration. The larger Bench proceeded to state thus:
"......The correct rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -16- CRA-S-1070-SB-2005 by the application of diverse consideration which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness, he cannot claim any higher status and must be treated as any other interested witness."
20. In Major E.G. Barsey (supra), while dealing with the evidence of a trap witness, the court opined that though a trap witness is not an approver, he is certainly an interested witness in the sense that he is interested to see that the trap laid by him succeeds. The Court further laid down that he can at least be equated with a partisan witness and it would not be admissible to rely upon his evidence without corroboration, but his evidence is not a tainted one.
21. In Bhanupratap Hariprasad Dave (supra), the Court observed that the police witnesses can be said to be partisan witnesses as they are interested in the success of the trap laid by them, but it cannot be said that they are accomplices. Thereafter, the Court proceeded to state that their evidence must be tested in the same way as any other interested witness is tested and in an appropriate case, the Court may look for independent corroboration before convicting the accused person. The three-Judge Bench reiterated the principle thus:
"....It is now well settled by a series of decisions of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material particulars but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable. But it may in appropriate case look for corroboration".
22. In MO Shamshuddin (supra), the Court, after referring to the decisions in DPP v. Hester, (1972) 3 All ER 1056 and DPP v. Kilbourne, (1973) 1 All ER 440, made a distinction between accomplice and an interested witness. The Court, referred to the PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -17- CRA-S-1070-SB-2005 authority in Basawan Singh (supra) at length and eventually adverted to the concept of corroborating evidence. In that context it has been ruled thus :
".......Now coming to the nature of corroborating evidence that is required, it is well-settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The court should weigh the evidence and then see whether corroboration is necessary. Therefore as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case. In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe."
From the aforesaid authorities it is clear that a trap witness is an interested witness and his testimony, to be accepted and relied upon requires corroboration and the corroboration would depend upon the facts and circumstances, nature of the crime and the character of the trap witness.
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29. The next aspect which requires to be adverted to is whether testimony of a hostile evidence that has come on record should be relied upon or not. Mr. Jain, learned senior counsel for the appellant would contend that as PW-7 has totally resiled in his cross- examination, his evidence is to be discarded in toto. On a perusal of the testimony of the said witness, it is PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -18- CRA-S-1070-SB-2005 evincible that in examination-in-chief, he has supported the prosecution story in entirety and in the cross-examination he has taken the path of prevarication. In Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, it has been laid down that even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. In Khuji @ Surendra Tiwari v. State of Madhya Pradesh, 1992(3) R.C.R. (Criminal) 158 : (1991) 3 SCC 627, the Court after referring to the authorities in Bhagwan Singh (supra), Rabindra Kumar Dey v. State of Orissa, (1976)4 SCC 233 and Syad Akbar v. State of Karnataka, (1980) 1 SCC 30, opined that the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof.
30. In this context, we think it apt to reproduce some passages from Rammi @ Rameshwar v. State of Madhya Pradesh, 1999(4) R.C.R. (Criminal) 246 :
(1999) 8 SCC 649, where the Court was dealing with the purpose of re-examination. After referring to Section 138 of the Evidence Act, the Court held thus :
"There is an erroneous impression that re- examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -19- CRA-S-1070-SB-2005 the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.
Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions".
31. We have reproduced the aforesaid paragraphs to highlight that when the prosecution has such a right in the process of re-examination, as a natural corollary, the testimony of a hostile witness cannot be brushed aside. On the contrary, both the prosecution and the defence can rely for their stand and stance. Emphasis on re-examination by the prosecution is not limited to any answer given in the cross-examination, but the Public Prosecutor has the freedom and right to put such questions as it deems necessary to elucidate certain answers from the witness. It is not confined to clarification of ambiguities, which have been brought down in the cross-examination.
32. Mr. Jain, learned senior counsel has propounded that testimony of PW7 deserves to be discredited, and the learned trial Judge as well as the High Court having not ignored have committed a grave error. We will be dealing with the aspect whether the evidence of PW-7 should be totally ignored or not while we will be dwelling upon the credibility and acceptability of his testimony.
33. As a contention has been raised that once the informant has resiled totally from his earlier statement no conviction can be recorded on the basis of evidence of the trap witnesses, it required to be carefully dwelled upon. In this regard, reference to the authority in Hazari Lal v. State (Delhi Administration), (1980) 2 SCC 390 would be apt. In the said case a police Constable was convicted under Section 5(2) of the Prevention of Corruption Act, 1947 on the allegation that he had demanded and received र 60/- from the informant who was examined PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -20- CRA-S-1070-SB-2005 as PW-3 and had resiled from his previous statement and was declared hostile by the prosecution. Official witnesses had supported the prosecution version. Keeping in mind the evidence of the official witnesses the trial Court had convicted the appellant therein which was affirmed by the High Court. A contention was raised that in the absence of any direct evidence to show that the police constable demanded or accepted bribery no presumption under Section 4 of the Act, 1947 could be drawn merely on the strength of recovery of the marked currency notes from the said police constable. Chinnappa Reddy, J. speaking for the two-Judge Bench observed as follows :-
"...It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW 3. Under Section 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to Section 114 of the Evidence Act is that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW 3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW 3, the presumption under Section 4(1) of the Prevention of Corruption Act is immediately attracted."
34. It is pertinent to note here that in the aforesaid case the decision rendered in Sita Ram v. State of Rajasthan, (1975) 2 SCC 227 was pressed into service. In the case of Sita Ram (supra) the PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -21- CRA-S-1070-SB-2005 complainant had turned hostile in the court of Special Judge. However, the trial Judge convicted the accused who was tried along with another accused, namely, Vikram Singh. The High court on appreciation of the evidence acquitted Vikram Singh but maintained the conviction against Sita Ram. This Court opined that the presumption under Section 4(1) of the 1947 Act could not be drawn in the facts of the case. The question, whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complaint was not considered. The Court in Hazari Lal (supra) distinguished the pronouncement in Sita Ram (supra) by stating thus :-
"...The question whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complainant was not considered. All that was taken as established was the recovery of certain money from the person of the accused and it was held that mere recovery of money was not enough to entitle the drawing of the presumption under Section 4(1) of the Prevention of Corruption Act. The Court did not consider the further question whether recovery of the money along with other circumstances could establish that the accused had obtained gratification from any person. In the present case we have found that the circumstances established by the prosecution entitled the court to hold that the accused received the gratification from PW 3. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725, also it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money. There can be no quarrel with that proposition but where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the court would certainly be entitled to draw the presumption under Section 4(1) of the Prevention of Corruption Act. In our view both the decisions PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -22- CRA-S-1070-SB-2005 are of no avail to the appellant and as already observed by us conclusions of fact must be drawn on the facts of each case and not on the facts of other cases."
35. In this context it would be germane to understand what has been stated in M. Narsinga Rao v. State of A.P., 2001(1) R.C.R.(Criminal) 95 : (2001) 1 SCC
691. In the said case, allegations against the accused- appellant were that one Satya Prasad, PW1 therein was to get some amount from Andhra Pradesh Dairy Development Cooperative Federation for transporting milk to or from the milk chilling centre at Luxettipet (Adilabad District). He had approached the appellant for taking steps to enable him to get money disbursed. The appellant demanded र 5000/- for sending the recommendation in favour of payment of the amount due to PW1. As the appellant persisted with his demand PW1 yielded to the same. But before handing over the money to him he lodged a complaint with DSP of Anti-Corruption Bureau. On the basis of the said complaint all arrangements were made for a trap to catch the corrupt public servant red-handed. Thereafter the Court adverted how the trap had taken place. The court took note of the fact that PW1 and PW2 made a volteface in the trial court and denied having paid any bribery to the appellant and also denied that the appellant demanded the bribe amount. The stand of the accused before the trial court under Section 313 of CrPC was that one Dr. Krishna Rao bore grudge and had orchestrated a false trap against him by employing PW1 and PW2. Be it stated, in his deposition PW1 had stated that he had acted on the behest of one Dr. Krishna Rao. It was further the stand of the accused-appellant that the tainted currency notes were forcibly stuffed into his pocket. The trial court and the High Court had disbelieved the defence evidence and found that PW1 and PW2 were won over by the appellant and that is why they turned hostile against their own version recorded by the investigating officer and subsequently by a Magistrate under Section 164 of CrPC. The Special Judge ordered the witnesses to be prosecuted for perjury and the said course suggested by the trial Judge found approval of the High Court also. While dealing with the controversy this court took note of the fact that the High Court had observed that though there was no direct evidence to show that the accused PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -23- CRA-S-1070-SB-2005 had demanded and accepted the money, yet the rest of the evidence and the circumstances were sufficient to establish that the accused had accepted the amount and that gave rise to a presumption under Section 20 of the Prevention of Corruption Act that he accepted the same as illegal gratification, particularly so, when the defence theory put forth was not accepted. It was contended before this court that presumption under Section 20 of the Act can be drawn only when the prosecution succeeded in establishing with direct evidence that the delinquent public servant had accepted or obtained gratification. It was further urged that it was not enough that some currency notes were handed over to the pubic servant to make it acceptance of gratification and it was incumbent on the part of the prosecution to further prove that what was paid amounted to gratification. In support of the said contention reliance was placed on Sita Ram (supra) and Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725. The three-Judge Bench referred to Section 20(1) of the Act, the pronouncements in Hawkins v. Powells Tillery Steam Coal Co. Ltd., (1911) 1 KB 988 : 1911 WN 53 and Suresh Budharmal Kalani v. State of Maharashtra, 1998(4) R.C.R.(Criminal) 433 : (1998) 7 SCC 337 and adverted to the facts and came to hold as follows:-
"From those proved facts the court can legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the appellant received the said amount."
36. It is apt to note here the three-Judge Bench referred to the observations in Hazari Lal (supra) and opined thus :-
"The aforesaid observation is in consonance with the line of approach which we have adopted now. We may say with great respect to PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -24- CRA-S-1070-SB-2005 the learned Judges of the two-Judge Bench that the legal principle on this aspect has been correctly propounded therein."
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39. Presently, we shall refer to the evidence of PW6, a clerk in the office of Tehsildar, Rajpura. He has deposed that on 25.1.1995, on the day of the raid, he joined the police party headed by Narinder Pal Kaushal, DSP, on the instruction of Tehsildar. He was introduced to Baj Singh, the complainant and Jagdish Verma, a shadow witness. Thereafter, the complainant and the shadow witness, Jagdish Verma, were sent to the octroi post and he stopped at some distance along with Narinder Pal Kaushal who was waiting for signal and on receiving signal they went inside the octroi post. As per his testimony Narinder Pal Kaushal introduced himself as DSP and thereafter a glass of water was procured and sodium was added to it. Both the hands of the accused were dipped in the glass of water and the water turned pink. On search of the accused र 500/- in the denomination of र 100/- were recovered. The numbers tallied with the numbers mentioned in the memo, Ex. PE. The notes were taken into possession vide Ex. PH. As is manifest that the said witness has supported the story of the prosecution in toto. The submission of Mr. Jain is that he is merely a witness to recovery and solely on the basis of recovery no conviction can be recorded. There can be no quarrel over the proposition that on the basis of mere recovery an accused cannot be found guilty. It is the settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as bribe. In the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the accused. This has been so held in T. Subramanian v. The State of Tamil Nadu, 2006(1) Apex Criminal 159 : AIR 2006 SC 836, Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571, Raj Rajendra Singh Seth v. State of Jharkhand and Anr., AIR 2008 SC 3217, State of Maharashtra v.
Dnyaneshwar Laxman Rao Wankhede, 2009(4) R.C.R.(Criminal) 217 : 2009(5) Recent Apex PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -25- CRA-S-1070-SB-2005 Judgments (R.A.J.) 356 : (2009) 15 SCC 200, C.M. Girish Babu v. C.B.I., Cochin, 2009(2) R.C.R. (Criminal) 134 : 2009(2) Recent Apex Judgments (R.A.J.) 101 : AIR 2009 SC 2011, K.S. Panduranga v. State of Karnataka, 2013(2) R.C.R.(Criminal) 219 : 2013(2) Recent Apex Judgments (R.A.J.) 113 :
(2012) 3 SCC 721 and Satvir Singh v. State of Delhi, 2014(4) R.C.R.(Criminal) 40 : 2014(5) Recent Apex Judgments (R.A.J.) 20 : (2014) 13 SCC 143. The fact remains that PW6 has supported the recovery in entirety. He has stood firm and remained unshaken in the cross-examination and nothing has been elicited to dislodge his testimony. His evidence has to be appreciated regard being had to what has been deposed by Jagdish Verma, PW7. In examination-in-
chief he has deposed that he had met the DSP, Narinder Pal Kaushal who had introduced him to Sher Singh, PW6. He has further stated that he and PW5, Baj Singh, went inside the octroi post where Vinod Kumar demanded bribe from Baj Singh whereupon Baj Singh gave र 500/- to him, and at that juncture, he gave the signal to the vigilance party to come inside where after and they came and apprehended the accused. Apart from stating about the demand and acceptance he had also stated that the hands of the accused were dipped in that water and the colour of the water had turned light pink. It was transferred into a quarter bottle and was sealed and was taken into possession vide recovery memo Ex.PG which was attested by him and Baj Singh. The amount of र 500/- was recovered from right side pant pocket of the accused. After making the arrangement for the pant of the accused, the right side pocket of the pant of the accused was dipped in the mixture of water and sodium and its colour turned light pink. It was also transferred into a quarter bottle which was duly sealed and was taken into possession vide recovery memo Ex.PJ. The pant was also taken into possession vide recovery memo Ex.PJ. The notes recovered from the accused were compared with the numbers mentioned in the memo and those tallied. The notes were taken into possession vide recovery memo Ex.PF. A sum of र 310/- was recovered from the further search of the accused which was taken into possession vide recovery memo Ex.PK. Thus, from the aforesaid testimony it � is absolutely clear that he has supported in entirety about the demand, PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -26- CRA-S-1070-SB-2005 acceptance and recovery of money. It is necessary, though painful, to note that PW7 was examined-in- chief on 30.9.1999 and was cross-examined on 25.5.2001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross- examination in a case of this nature. It would have been absolutely appropriate on the part of the learned trial Judge to finish the cross-examination on the day the said witness was examined. As is evident, for no reason whatsoever it was deferred and the cross- examination took place after 20 months. The witness had all the time in the world to be gained over. We have already opined that he was declared hostile and re-examined. It is settled in law that the testimony of a hostile witness can be relied upon by the prosecution as well as the defence. In re-examination by the public prosecutor this witness has accepted about the correctness of his statement in the court on 13.9.1999. He has also accepted that he had not made any complaint to the Presiding Officer of the Court in writing or verbally that the Inspector was threatening him to make a false statement in the Court. It has also been accepted by him that he had given the statement in the Court on account of fear of false implication by the Inspector. He has agreed to have signed his statement dated 13.9.99 after going through and admitting it to be correct. It has come in the re- examination that he had not stated in his statement dated 13.9.99 in the Court that recovery of tainted money was not effected in his presence from the accused or that he had been told by the Inspector that amount has been recovered from the accused. He had also not stated in his said statement that the accused and witnesses were taken to the Tehsil and it was there that he had signed all the memos.
40. Reading the evidence in entirety, his evidence cannot be brushed aside. The delay in cross- examination has resulted in his pre-varication from the examination-in-chief. But, a significant one, his examination-in-chief and the re-examination impels PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -27- CRA-S-1070-SB-2005 us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross- examination he has stated that he had not gone with Baj Singh to the vigilance department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the re- examination. The evidence of PW6 and PW7 have got corroboration from PW8. He in all material particulars has stated about the recovery and proven the necessary documents pertaining to the test carried with phenolphthalein powder. The fact remains that the appellant's pocket contained phenolphthalein smeared currency notes when he was searched. It is apt to take note of the fact that the currency notes that have been recovered from the right side of the pant pocket were actually prepared by PW8 by smearing them with phenolphthalein powder. The appellant was caught red-handed with those currency notes. In is statement recorded under Section 313 of CrPC he has taken the plea that he is innocent and has been falsely implicated due to animosity. No explanation has been given as regards the recovery. Therefore, from the above facts, legitimately a presumption can be drawn that the accused-appellant had received or accepted the said currency notes on his own volition. The factum of presumption and the testimony of PW6 and 7 go a long way to show that the prosecution has been able to prove demand, acceptance and recovery of the amount. Hence, we are inclined to hold that the learned trial Judge and the High Court have appositely concluded that the charges leveled against the accused have duly been proven by the prosecution. It is not a case that there is no other evidence barring the evidence of the complainant. On the contrary there are adequate circumstances which establish the ingredients of the offences in respect of which he was charged.
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42. In the ultimate analysis, we perceive no merit in the appeal and consequently the same stands dismissed. As the appellant is on bail, his bail bonds are cancelled. He be taken into custody forthwith to suffer the sentence."
PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -28-CRA-S-1070-SB-2005 The Hon'ble Supreme Court in another latest judgment titled D.Velayutham vs. State rep. by Inspector of Police, Salem Town, Chennai 2015 (2) RCR (Criminal) 237 has held as under:
"8. Witnesses who are particeps criminis, on the other hand, correctly carry a lower degree of presumed credibility, their evidentiary motivations sullied by their prior participation in the criminal act precisely where against they subsequently elect to testify. This selfsame distinction and posture may derive sustenance from the decision of a Constitution Bench of this Court in State of Bihar v. Basawan Singh AIR 1958 SC 500, where Their Lordships held that no inflexible rule had been laid down in an earlier Judgment that the evidence of the witnesses of the raiding party must be discarded in the absence of any independent corroboration. Their Lordships opined that: "if any of the witnesses are accomplices who are particeps criminis in respect of the crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person".
9 It would therefore be a derogation and perversion of the purpose and object of anti-corruption law to invariably presuppose that a trap/ decoy witness is an "interested witness", with an ulterior or other than ordinary motive for ensuring the inculpation and punishment of the accused. The burden unquestionably is on the defence to rattle the credibility and trustworthiness of the trap witness' testimony, thereby bringing him under the doubtful glare of the Court as an interested witness. The defence cannot be ballasted with the premise that Courts will, from the outset, be guarded against and suspicious of the testimony of trap witnesses. We are of the opinion that the law hitherto expressed by this PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -29- CRA-S-1070-SB-2005 Court upholds precisely this exposition."
In the light of law laid down by the Hon'ble Supreme Court in Vinod Kumar's case (supra) and D. Velayutham's case (supra), it is clear that if any, trap witness is alleged to be interested witness, his testimony is to be accepted with caution. It cannot be outrightly rejected. Its corroboration would depend upon the facts and circumstances, nature of crime and the character of trap witnesses. No doubt, PW 8 Inspector Hari Chand is vigilance official and other witnesses except PW 5 Ram Mehar are also connected with Vigilance Department, but the fact remains that their evidence has been corroborated by the circumstantial evidence i.e. firstly recovery of tainted currency notes, report of the FSL and turning of hand wash, pocket wash and currency note-wash recovered from the appellant. This is sufficient corroborative evidence. Not only this, the appellant has failed to rebut the presumption under Section 20 of the Act.
Admittedly, the appellant was a public servant and the complainant was a Sarpanch. The appellant being BDPO had control over the complainant as per the provisions of the Haryana Panchayati Raj Act, 1994. The resolution was sent by the Panchayat for approval of the appellant, however, auction of fish-pond was cancelled thrice with a purpose to fulfil the demand of the appellant. The demand of bribe was raised by the appellant and thereafter, the amount was received by the appellant as illegal gratification being a public servant.
Once the recovery of tainted currency notes is effected, PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -30- CRA-S-1070-SB-2005 statutory presumption under Section 20 of the Act is raised, though it can be dislodged by the appellant by bringing on record some evidence, either direct or circumstantial that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act on the touchstone of preponderance of probability. It is not to be proved beyond all reasonable doubt. The burden is upon the appellant to establish that it was not by way of illegal gratification. Once all the facts regarding illegal gratification are established, the presumption under Section 20 of the Act also arises against the appellant. He is required to explain the same that the same was not by way of illegal gratification.
In Nayankumar Shivappa Waghmare vs. State of Maharashtra 2015(2) RCR (Criminal) 65, the Hon'ble Supreme Court has held as under:
"15. In this connection, we agree with the High Court that the trial court while appreciating the prosecution evidence completely ignored the presumption required to be taken under sub-Section (1) of Section 20 of the Prevention of Corruption Act, 1988. Sub-section (1) of Section 20 provides that where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub - section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -31- CRA-S-1070-SB-2005 or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
Apart from this suggestion made on behalf of the accused to the PW-1 Uttam Bhutekar, PW-3 Sahebrao Wanve and PW-9 Anant Deshmukh, it is clear that the accused has admitted that three currency notes were recovered from his pocket by the raiding party. In such circumstances, in the present case, there was no question of giving benefit of reasonable doubt to the accused.
16. In Himachal Pradesh Administration v. Om Prakash, (1972)1 SCC 249, explaining the expression "reasonable doubt", this Court has observed as under :-
"It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-
examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be borne in mind is that the penumbra of uncertainty in the evidence before a court is generally due to the nature and quality of that evidence. It may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy though unwittingly it may be or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is "not the doubt of a vacillating mind that has not the moral PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -32- CRA-S-1070-SB-2005 courage to decide but shelters itself in a vain and idle scepticism". It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether."
17. In view of law laid down by this Court, as above, and after considering evidence on record in the light of Section 20 of Prevention of Corruption Act, 1988, we hold that the trial court did err in law in giving benefit of reasonable doubt in the present case relating to corruption. In the case of Niranjan Hemchandra Sashithal and another v. State of Maharashtra, 2013(2) R.C.R. (Criminal) 690 : 2013 (3) Recent Apex Judgments (R.A.J.) 11 : (2013) 4 SCC 642, this Court has discussed gravity of the corruption cases in following words :-
"26. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered."
In the light of the judgments in Vinod Kumar's case (supra) and D. Velayutham's case (supra), the prosecution has proved the recovery of tainted currency notes in the present case, however, the appellant has failed to bring any cogent evidence to dislodge the presumption under Section 20 of the Act.
So far as the contention of learned senior counsel for the PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -33- CRA-S-1070-SB-2005 appellant with regard to enmity of appellant with the investigating officer is concerned, the same has not been proved by leading any cogent evidence. There is no direct evidence that the investigating officer was having any personal grudge against the appellant. Moreover, it has also not been shown that in the recent past, prior to the occurrence, the enmity with the brother-in-law of the appellant was existing. The brother-in-law of the appellant was posted as Commissioner, Hisar Division w.e.f. 01.07.1988 to 22.01.1989. The incident pertains to the year 1995 i.e. almost after a period of seven years of posting of the brother-in-law of the appellant in Hisar Division. There is no evidence to show as to what type of enmity was between the investigating officer and brother-in-law of the appellant. Otherwise also, no enmity has been proved between the investigating officer and appellant. So far as the past conduct of the investigating officer is concerned, the same is not relevant because it may be in the peculiar facts of a particular case and has no bearing in the present case. Moreover in the present case, complainant, shadow witness and even Gazetted Officer, have independently proved the prosecution case.
Conclusion:
On a conspectus of the evidence and the findings of the trial Court and reasons stated above, I am satisfied that the prosecution has successfully proved the factum of recovery of tainted currency notes and has also proved the demand and acceptance of the amount as illegal gratification. The conviction and sentence of the appellant are upheld.PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document -34-
CRA-S-1070-SB-2005 The appeal, therefore, is devoid of merits and is dismissed. The appellant-convict is stated to be on bail. His bail bonds stand cancelled and he is directed to surrender before the Special Court forthwith to undergo remaining part of sentence. In case, the appellant-accused does not surrender before the Special Court, it shall issue warrant of arrest of the appellant-convict.
(PARAMJEET SINGH) 28.05.2015 JUDGE parveen kumar PARVEEN KUMAR 2015.06.03 16:36 I attest to the accuracy and authenticity of this document