Karnataka High Court
M.A. Rasheed Khan @ Abdul Rasheed Khan vs The State Of Karnataka on 11 September, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3631/2012
Between:
M.A. Rasheed Khan @ Abdul Rasheed Khan
Age: 54 years, Occ: Village Accountant
R/o Idapanur Village, Tq. & Dist. Raichur
... Appellant
(By Sri Ganesh Naik, Advocate)
And:
The State of Karnataka
(Through Lokayukta Police, Raichur)
Represented by Spl. Public Prosecutor
Circuit Bench at Gulbarga
... Respondent
(By Sri Subhash Mallapur, Spl.PP for Lokayukta)
This Criminal Appeal is filed under 374(2) of the Code
of Criminal Procedure, praying to allow the appeal, set-aside
the judgment of conviction and order of sentence including
fine dated 17.08.2012 passed by the Prl. Sessions Judge at
Raichur in Special Case No.01/2010 and acquit the
appellant.
This appeal coming on for dictating judgment this day,
the Court delivered the following:
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JUDGMENT
This appeal is filed under Section 374(2) of the Code of Criminal Procedure, challenging the judgment of conviction and order on sentence dated 17.08.2012 passed in Special Case No.01/2010 by the Prl. Sessions Judge, Raichur, thereby convicting the appellant for the offences punishable under Sections 7 & 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'PC Act') and sentenced him to undergo simple imprisonment for two years with fine of Rs.10,000/- with default clause that in default of payment of fine, he shall further undergo S.I. for six months for the offence punishable under Section 7 of the PC Act. Further, for the offence punishable under Section 13(2) of the PC Act, the appellant was sentenced to undergo simple imprisonment for five years and to pay fine of Rs.15,000/- with default clause that in default of payment of fine, he shall further undergo S.I. for six 3 months and it was ordered that both the substantive sentences shall run concurrently.
2. Brief facts of the case are that, the appellant is a public servant working as Village Accountant at Idapanur village coming within the Raichur Taluk. On 14.08.2008, the complainant had approached the appellant along with his villagers namely, Govindappa S/o Kariyanna and Narsingh Naik and stated that he (complainant) is intending to give the agricultural land to an extent of 5 acres out of the total extent of 7 acres 33 guntas of land bearing Sy.No.591/3 situated in Idapanur village and accordingly mutation has to be done in favour of his wife and thus, requested the appellant. Then the appellant had demanded bribe amount of Rs.5,500/-, but the said bribe amount was negotiated and finally it was settled for Rs.5,000/- to be given to the appellant as bribe amount and then the appellant assured the complainant that he would do his 4 work for this bribe amount and accordingly on that day the complainant had given a sum of Rs.200/- as an earnest money and the appellant said that the remaining amount is to be given and then only he would do the work. But, the complainant was reluctant to give the bribe amount to the appellant. Therefore, he approached the respondent-Lokayukta Police and lodged a complaint as per Ex.P1 against the appellant which is registered as Crime No.08/2008 for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act.
3. After investigation, the Investigating Officer has filed the charge sheet against the appellant for the offence punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act. The learned Special Judge, after receipt of the charge sheet has taken a cognizance of the offences as per Section 190 of Cr.P.C and furnished the copy of the charge sheet to the appellant 5 as required under Section 207 of Cr.P.C. and then proceeded for framing the charge and trial. The learned Special Judge had framed charge against the appellant and upon explaining the charge the appellant pleaded not guilty and claims to be tried. Accordingly, by recording his plea, the learned Special Judge was proceeded with the trial.
4. To prove its case, the prosecution has got examined in all 7 witnesses as PWs.1 to 7 and got marked 21 documents as Exs.P1 to P21 and also got marked 13 material objects as MOs.1 to 13. After completion of the evidence of the prosecution, the appellant was examined under Section 313 of Cr.P.C. The appellant has denied all the evidences and incriminating circumstances put against him and also denied the entire prosecution case. The appellant did not choose to lead any defence evidence and also has 6 not submitted any document or statement during the course of examination under Section 313 of Cr.P.C.
5. The learned Special Judge after evaluating and assessing the evidence on record has come to a conclusion that the appellant is found guilty of the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act and has convicted the appellant and imposed the sentence as stated above.
6. Being aggrieved by the judgment of conviction and order of sentence passed by the learned Special Judge, the accused has preferred the present appeal raising various grounds inter alia contended in the appeal memo and also as canvassed by the learned counsel for the appellant during the course of argument.
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7. Heard the learned counsel for the appellant and the learned Special Public Prosecutor for Lokayukta.
8. Learned counsel for the appellant submitted that no demand and acceptance is proved by the prosecution as against the appellant. Therefore, he submitted that it is fatal to the prosecution case. He further submitted that PW.1-complainant had turned hostile and had not stated that this appellant had demanded the bribe amount. Therefore, he submitted that just because the amount is seized from the possession of the appellant, it cannot be said that the offences alleged against the appellant are proved. Further submitted that PW.1 while lodging the complaint before the police had stated that he along with other two persons namely, Govindappa S/o Kariyanna and Narsingh Naik were accompanied with him, but the prosecution has not examined these two 8 persons. Therefore, when PW.1 had turned hostile and this evidence is also not corroborated by these two independent witnesses and virtually for the prosecution side there is no evidence that the appellant had demanded the bribe amount, the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. But, the learned Special Judge has wrongly convicted the appellant. He further argued that PW.2 is the shadow witness. But, upon perusing his evidence, he had not stated that the appellant had received the amount from PW.1 and also had not stated whether after washing the hands of the appellant in the sodium carbonate solution, they turned into any other colour. Therefore, from the evidence of PW.2 also it is not proved that the appellant has received the bribe amount from PW.1. Further he submitted that PW.2 had not stated that he had seen that the appellant has received bribe amount from PW.1. Therefore, submitted that when this being the evidence of PWs.1 and 2, taking 9 into consideration cumulatively, the prosecution has not proved that the appellant has made demand of the amount and accepted the amount from PW.1. Therefore, he submitted that when these two important witnesses do not inspire confidence of the Court, the prosecution has failed to prove the guilt against the appellant beyond reasonable doubt. Therefore, prays for acquittal of the appellant-accused for the alleged offence.
9. Further, the learned counsel submitted that PW.3 is the punch witness for Demonstration Panchanama-Ex.P2, but he has not stated that he has witnessed the appellant has received the bribe amount from PW.1. Therefore, he submitted that at the most by the evidence of PW.3 the Lokayukta Police have drawn Demonstration Panchanama and nothing else. Further submitted that the other material witness is PW.6, who had conducted the investigation since beginning and 10 conducted the substantial part of investigation, but the evidence of PW.6 is found to be self explanatory in nature without having any corroboration. Therefore, only on the basis of evidence of PW.6, conviction cannot be recorded. Further, submitted that PW.7 is the Police Inspector, who had filed charge sheet. Therefore, submitted that the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt. Therefore, the benefit of doubt certainly must be extended in favour of the appellant.
10. Further, the learned counsel submitted that PW.2 has not stated in his evidence that he went along with PW.1 or just followed the PW.1 with some minimal distance and entered the office of the appellant and saw that the appellant had demanded bribe amount and then PW.1 has given the bribe amount. When PW.2 is the shadow witness for proving the offence alleged against the appellant, then the PW.2 had to state all 11 these things, but these proofs are not found from the evidence of PW.2. Therefore, he submitted that PW.2 is planted witness. Further, he submitted that PW.2 had not stated what was the conversation between the appellant and PW.1 and it is stated that the conversation was in Telugu language, but PW.2 do not know the Telugu language. Therefore, from the evidence of PW.2 it is not proved that the appellant has made demand of the amount. Further, he submitted that PW.2 has deposed that PW.1 had kept the money beneath the ink pad and it is stated in the evidence of PW.2 that the police have seized the said ink pad and amount, but the PW.2 has not stated that the appellant was holding the said currency notes and also what was the effect of washing of hands of the appellant in the sodium carbonate solution. Therefore, there is an important missing link is revealed from the prosecution side evidence in proving the theory of demand and acceptance as contended by the prosecution. Therefore, 12 he submitted that the appellant-accused is entitled for acquittal. Hence, he prays to allow the appeal and to set aside the judgment of conviction and order of sentence.
11. Per contra, learned Special Public Prosecutor for Lokayukta vehemently argued and submitted that from the evidence of PW.1 it is proved that the appellant had demanded the bribe amount from PW.1. Further submitted that the prosecution is able to prove the aspect of demand of bribe amount and acceptance and the said amount is found to be illegal gratification received for doing his official work towards PW.1. Therefore, there is no need to interfere with the impugned judgment of conviction and order of sentence recorded by the learned Special Judge. He further submitted that even though the PW.1 has turned hostile towards the prosecution case, but this hostility is only part hostility and whatever the portion of evidence 13 supports the prosecution case can be accepted in favour of the prosecution. Therefore, under this principle, when the evidence of PW.1 is appreciated, then it is also found proved that the appellant had demanded the bribe amount from PW.1 and also it was successfully trapped and the appellant was found in possession of currency notes for a total sum of Rs.4,800/- after trapping him. Therefore, in this regard both the aspects of demand and acceptance are proved. Therefore, he submitted that recording of conviction by the learned Special Judge is legal and justifiable one. Hence, he prays to dismiss the appeal.
12. Ex.P1 is the complaint given by the PW.1. In the complaint it is stated that PW.1 is the owner of the land bearing Sy.No.591/3 to the extent of 7 acres 33 gutnas situated at Idapanur village and out of it PW.1 was intending to mutate his wife's name to the extent of 5 acres and accordingly he approached the appellant 14 when the appellant was working as Village Accountant in Idapanur Gram Panchayat and for doing the mutation to this effect in the name of wife of PW.1, the appellant has made demand of Rs.5,500/-, but it was negotiated and finally settled for Rs.5,000/- and when the appellant had made demand for the first time to PW.1, on that day he has given an earnest money of Rs.200/- and told that the remaining amount would be given. Therefore Ex.P1-complaint is to the effect that the appellant has demanded the bribe amount and also received part amount of Rs.200/- from the PW.1.
13. PW.1 has given evidence before the Court that he has lodged the complaint before the police as per Ex.P1 and also identified his left hand thumb impression on it. PW.1 in his evidence has stated that he has approached the appellant when the appellant was working as Village Accountant for mutating 5 acres of land in his wife's name, but for that work of 15 mutation, the appellant has demanded an amount of Rs.5,500/- and the PW.1 has identified the said appellant, who was before the Court as accused. He further stated that on that day PW.1 was accompanied with another two persons namely, Govindappa S/o Kariyanna and Narsingh Naik. But, during the further examination-in-chief conducted by the Special Public Prosecutor, the PW.1 has stated that the appellant has not demanded the amount and also has not done the work in his favour by saying that doing work is not possible as requested by the PW.1. When PW.1 had turned hostile in part towards the prosecution case, then the Public Prosecutor had put suggestions, but the said suggestions were denied by the PW.1. The PW.1 had denied the suggestion made by the Public Prosecutor to the effect that he had been to the Lokayukta Police Station therein panchanamas were conducted then washing of hands and taking of 16 photographs as per doing panchanamas but all the suggestions are denied by PW.1.
14. It is only cross-examination of the counsel for the appellant during the trial that PW.1 never approached the appellant and asked to mutate the land in his wife's name and the appellant has not demanded any bribe amount. Therefore, in this regard the evidence of PW.1 is to be carefully considered and scrutinized. In view of the fact that PW.1 after lodging complaint as per Ex.P.1 had turned hostile in part. Therefore, these types of witnesses who have turned hostile and their evidence are to be carefully considered, in this regard, I place reliance on the judgment of the Hon'ble Apex Court in the case of Sat Paul v. Delhi Administration [AIR 1976 SC 294], wherein at paragraphs 28 to 38, 45, 46 and 48 to 51, their Lordships were pleased to observe as follows :-
28. Relying on Jagir Singh v. State (AIR 1975 SC 1400) ibid, Mr. Anthony submits that 17 when a prosecution witness, being hostile, is cross-examined by the Public Prosecutor with the leave of the Court, his entire evidence is to be discarded, as a matter of law.
29. Since this vexing question frequently arises, and the observations made by this Court in Jagir Singh's case (ibid) do not appear to have been properly understood, it will be appropriate to clarify the law on the point.
29A. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. At Common Law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. This rule had its foundation on the theory that by calling the witness, a party represents him to the Court as worthy of credit, and if he afterwards attacks his general character for veracity, this is not only mala fides towards the Court, but, it "would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him" (see Best on Evidence, p. 630, 11th Edn.). This theory or assumption gave rise to a considerable conflict of opinion as to whether it was competent for a party to show that his own witness had made statements out of Court 18 inconsistent with the evidence given by him in court. The weight of the ancient authority was in the negative.
30. In support of the dominant view it was urged that to allow a party directly to discredit or contradict his own witness would tend to multiply issues and enable the party to get the naked statement of a witness before the jury, operating in fact as substantive evidence, that this course would open the door wide open for collusion and dishonest contrivance.
31. As against this, the exponents of the rival view, that a party should be permitted to discredit or contradict his own witness who turns unfavourable to him argued that this course is necessary as a security against the contrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favourable evidence and afterwards by hostile evidence ruin his cause. It was reasoned further "that this is a question in which not only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings, that the ends of justice are best attained by allowing a free and ample scope for scrutinising evidence and estimating its real value, and that in the administration of criminal justice more especially, the exclusion of the proof of contrary statements might be attended with the worst consequences". Besides, it by no means follows that the object of a party in contradicting his own 19 witness is to impeach his veracity, it may be to show the faultiness of his memory" (see Best, page 631, 11th Edn.).
32. The rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable witness" and by attempting to draw a distinction between the two categories. A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him, and an 'unfavourable witness' is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact (see Cross on Evidence, p. 220, 4th Edn., citing Stephen's Digest of the Law of Evidence).
33. In the case of an 'unfavourable witness', the party calling him was allowed to contradict him by producing evidence aliunde but the prohibition against cross-examination by means of leading questions or by contradicting him with his previous inconsistent statements or by asking questions with regard to his discreditable past conduct or previous conviction, continued. But in the case of a 'hostile' witness, the Judge could permit his examination-in-chief to be conducted in the manner of cross-examination to the extent to which he considered necessary in the interests of justice. With the leave of the court, leading questions could be put to a hostile witness to test his memory and perception or his knowledge of the facts to which he was 20 deposing. Even so, the party calling him, could not question him about his bad antecedents or previous convictions, nor could he produce evidence to show that the veracity of the witness was doubtful. But the position as to whether a previous inconsistent statement could be proved against a hostile witness, remained as murky as ever.
34. To settle the law with regard to this matter, Section 22 of the Common Law Procedure Act, 1854 was enacted. It was originally applicable to civil proceedings, but was since re-enacted in Section 3 of the Criminal Procedure Act, 1865 and extended in identical terms to proceedings in criminal courts as well.
35. Section 3 provides:
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.
(Emphasis added)
36. The construction of these provisions, however, continued to cause difficulty, 21 particularly in their application to 'unfavourable' witnesses. In Greenough v. Eccles (1859) 5 CBNS 786 these provisions were found so confusing that Cockburn C. J. said that "there has been a great blunder in the drawing of it, and on the part of those who adopted it.
37. To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v.
Prasannamoyi AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witnesse's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The 22 grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.
38. It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. Under the English Act of 1865, a party calling the witness, can "cross- examine" and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse.' As already noticed, no such condition has been laid down in Sections 154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of the English law. The Criminal Law Revision Committee of England in its 11th Report, 23 made recently, has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Act. 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character.
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45. After answering in the negative, the three questions viz., whether the evidence of a witness treated as 'hostile' must be rejected in whole or in part, whether it must be rejected so far it is in favour of the party calling the witness, whether it must be rejected so far as it is in favour of the opposite party, the learned Chief Justice proceeded:
"...the whole of the evidence so far as it affects both parties favourably or unfavourably must go to the jury for what it is worth... ... ... If the previous statement is the deposition before the committing Magistrate and if it is put in under Section 288, Criminal Procedure Code, so as to become evidence for all purposes, the jury may in effect be directed to choose between the two statements because both statements are evidence of the facts stated therein. But in other cases the jury may not be so directed, because prima facie the previous statement of the witness is not evidence at all against the accused of the truth of the facts stated therein. The 24 proper direction to the jury is that before relying on the evidence given by the witness at the trial the jury should take into consideration the fact that he made the previous statement, but they must not treat the previous statement as being any evidence at all against the prisoner of the facta therein alleged.
... ... ... ... In a criminal case, however, the previous unsworn statement of a witness for the prosecution is not evidence against the accused of the truth of the facts stated therein save in very special circumstances, e. g., as corroboration under Section 157 of his testimony in the witness-box on the conditions therein laid down. If the case be put of the previous statement having been made in the presence and hearing of the accused, this fact might under Section 8 alter the position; but the true view even then is not that the statement is evidence of the truth of what it contains, but that if the jury think that the conduct, silence or answer of the prisoner at the time amounted to an acceptance of the statement or some part of it, the jury may consider that acceptance as an admission (The King v. Norton, Percy William Adams, (1910) 2 KB 496 and (1923) 17 Cri App Rep
77). But apart from such special cases, which attract special principles, the unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against 25 the accused as proof of the truth of what it asserts."
46. We are in respectful agreement with this enunciation. It is a correct exposition of the law on the point.
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48. In the case of an unfavourable witness, even in England the better opinion is that where a party contradicts his own witness on one part of his evidence, he does not thereby throw over all the witness's evidence, though its value may be impaired in the eyes of the court. (Halsbury, 3rd Edn. Vol. 15, Para 805).
49. In Bradley v. Ricardo (1831) 8 Bing 57 when it was urged as an objection that this would be giving credit to the witness on one point after he has been discredited on another, Tindal C. J. brushed it aside with the observation that "difficulties of the same kind occur in every cause where a jury has to decide on conflicting testimony".
50. In Narayan Nathu Naik v.
Maharashtra State the court actually used the evidence of the prosecution witnesses who had partly resiled from their previous statements, to the extent they supported the prosecution, for corroborating the other witnesses.
51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-
examined and contradicted with the leave of 26 the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-
examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.""
15. Further, in the case of Bhagwan Singh vs The State Of Haryana [AIR 1976 Supreme Court 202] at para 8, their Lordships were pleased to observe as follows:-
"8. We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the court gave 27 permission to the Prosecutor to cross examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The 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. We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately been recorded by the D.S.P., is amply corroborated by other evidence mentioned above to inspire confidence in his testimony. Apart from that the fact of recovery of the gold coins in the pocket of the appellant gave a seal of finality to the truth of the charge against the appellant. If Jagat Singh had accepted the bribe he would have been guilty under Section 161 I.P.C. There is, therefore, clear abetment by the appellant of the offence under Section 161 I.P.C. and the ingredients of Section 165-A I.P.C. are established against him."
16. Further, in the case of Arjun and another vs State Of Chhattisgarh [(2017) 3 Supreme Court Cases 247] at para 16, their Lordships were pleased to observe as follows :-
"16. In Paramjeet Singh alias Pamma vs. State of Uttarakhand [(2010) 10 SCC 439], it was held as under:-
"16. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has 28 to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. [Vide State of Rajasthan v. Bhawani [(2003) 7 SCC 291]]
17. This Court while deciding the issue in Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450] observed as under: (SCC p. 457, para 7) '7. ... It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.'
18. In Mahesh v. State of Maharashtra [(2008) 13 SCC 271] this Court considered the value of the deposition of a hostile witness and held as under: (SCC p. 289, para 49) '49. ... If PW.1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW.1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the 29 appellant for unfavourable conduct of this witness to the prosecution.'
19. In Rajendra v. State of U.P. [(2009) 13 SCC 480], this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa v. State of Karnataka [(2010) 6 SCC 533] observing that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution.
20. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."
The same view is reiterated in Mrinal Das. vs. State of Tripura [(2011) 9 SCC 479] in para (67) and also in Khachar Dipu vs. State of Gujarat [(2013) 4 SCC 322] in para (17)."
17. Therefore upon this principle of law, the evidence of PW.1 is to be appreciated. PW.1 has submitted a complaint as per Ex.P.1. Admittedly the offence alleged in the complaint Ex.P.1 is for the cognizable offence. Therefore, complaint filed by PW.1 is as per Section 154 of the Cr.P.C. The PW.1 had approached the respondent's police and told the 30 averments of complaint making accusation against the appellant that the appellant had committed cognizable offences and the FIS given by PW.1 is reduced into writing. Thus, the Ex.P.1 is a genesis of the crime. Therefore, even though the Ex.P.1 is to be categorized as the complaint is general in nature, but it is the FIS before the police and this FIS was reduced into writing for the effect that cognizable offence is taken place. PW.1 has admitted in his evidence that he has lodged FIS as per Ex.P.1 and further admitted that he had put his left thumb impression on it as he is being an illiterate person. In his examination-in-chief itself the PW.1 had categorically deposed before the court that he is the owner of the agricultural land to the extent of 07 acres 33 guntas and he was intending to mutate 5 acre of land in the name of his wife and for this work purpose he has approached the appellant for getting mutation and for this the appellant had demanded the bribe amount for Rs.5,500/-. Therefore, PW.1 had 31 categorically deposed this evidence before the court. Subsequently the PW.1 had turned partly hostile by saying that the appellant had not demanded the bribe amount and without that, the work would not be done. Therefore, from the evidence of PW.1, it is found that these two versions opposite to each other, one is in favour of the prosecution and another one is in favour of the defence. But upon following the principle of law laid down by the Hon'ble Apex Court stated supra, which portion of the evidence supports the prosecution case, if found trustworthy and reliable can be accepted in favour of the prosecution to say that such evidence is proved by the prosecution. PW.1 further deposed that he had been to the Lokayukta Office and told to the police that the appellant had demanded bribe amount for mutating the name of his wife and handed over Rs.4,800/- and then the Lokayukta Police have recorded his FIS into its writing as per Ex.P.1. Therefore, this version of PW.1 can be believed and can 32 be accepted in favour of the prosecution and upon the principle of law laid down by the Hon'ble Apex court stated supra. Therefore, from the evidence of PW.1, it is proved that the appellant has demanded amount from the PW.1. Therefore, so far as from the evidence of PW.1 the demand made by the appellant is proved and lodging of complaint as per Ex.P.1 is also proved and therefore this portion of the evidence of PW.1 can be accepted in favour of the prosecution.
18. In the present case PWs.2 and 3 are the Trap witness and demonstration panchanama witness respectively and their evidences are to be considered carefully because of the reason that PWs.2 and 3 are even though officials witnesses but they are interested witnesses for prosecution. As per the say of Lokayukta Police they are summoned to act as panchas before conducting raid and after conducting raid and much particularly PW.2 is acted as Trap witness. Therefore, 33 under these circumstances, their evidence is to be analysed and evaluated on the principle of law made by the Hon'ble Apex in the case of Vinod Kumar v. State of Punjab [(2015) 3 Supreme Court Cases 220] and in more or less similar circumstances, their lordship were pleased to observe at paragraphs 21, 22, 23 and 24, which are reproduced as under :
"21. In Major E.G. Barsey v. State of Bombay [AIR 1961 SC 1762], 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.
22. In Bhanupratap Hariprasad Dave v. State of Gujarat [AIR 1968 SC 1323], 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: (AIR p. 1327, para 7) 34 "7....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."
23. In M.O.Shamshuddin v. State of Kerala, [(1995) 3 SCC 351] the Court, after referring to the decisions in DPP v. Hester [1973 AC 296] and DPP v. Kilbourne [1973 AC 729], made a distinction between accomplice and an interested witness. The Court, referred to the authority in State of Bihar v. Basawan Singh [AIR 1958 SC 500] at length and eventually adverted to the concept of corroborating evidence. In that context it has been ruled thus: (M.O.Shamsudhin Case v. State of Kerala [(1995) 3 SCC 351], SCC pp. 365-66, para 23) "23........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 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 35 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."
(Emphasis supplied)
24. 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."
19. Then upon considering the evidence of PW.2 who is shadow witness had stated that on 19.08.2008, he was summoned to the Lokayukta Office at Raichur and therein the PW.1, Inspector and other police officials and another panch witness were there and they were introduced to each other and he was told that the appellant had demanded a sum of Rs.5,000/- from the complaint and the PW.1 had given an earnest money of Rs.200/- to appellant/accused. Further stated that the PW.1 had handed over currency notes of Rs.4,800/- 36 which are denomination of Rs.1,000/- of four currency notes, Rs.500/- of three currency notes and Rs.100/- of three currency notes and smeared phenolphthalein solution on the currency notes and then PW.2 had put the said currency notes in the pocket of PW.1 and then noted down the number of the currency notes and instructed the PW.1 that to give the amount to the appellant and after giving amount make signal. Further stated that in this regard a demonstration panchanama was conducted as per Ex.P.2 and his signature as per Ex.P.2(a). Further PW.2 had stated that he and PW.1 went to the office of the appellant and approached the appellant and the PW.1 had given a sum of Rs.4,800/- to the appellant and the appellant had kept the said currency notes under the ink pad. PW.2 had stated that the appellant and PW.1 had conversed with Telugu language and he did not know the Telugu language and then the police approached the appellant and seized ink pad and currency notes and further the hands of the 37 appellant were washed then notes were seized. This panchanama was drawn in Tahasildar office which is as per Ex.P.9 and he has put his signature as per Ex.P.9(a). The PW.2 had turned partly hostile to the prosecution case, therefore, the Public Prosecutor had treated this witness as hostile witness and after taking leave from the court had cross-examined the PW.2 and put suggestion that the PW.2 knows Telagu language and also know what was the conversation between the appellant and the PW.1 and the appellant had demanded the bribe amount. But for all these suggestions he had denied. Upon considering the evidence of PW.2 with reference to cross-examination nothing is revealed that the PW.2 is telling lie before the court what he has supported the case of the prosecution during the examination-in-chief. From the evidence of PW.2, it is not revealed that the appellant had expressly stated to PW.1 to give amount and the PW.2 has given answer that it was the conversation in Telagu language 38 but he does not know the Telagu language. It is also revealed from the evidence of PW.2 that there was demand made by the appellant to the PW.1. Except these two allegations the other part of prosecution case is proved regarding conducting demonstration panchanama. But from the evidence of PW.2 it is proved that the PW.1 had handed over the currency notes of Rs.4,800/- to the appellant which were noted down and mentioned during the demonstration panchanama in the Lokayukta office as per Ex.P.2. The PW.2 had not stated that after receipt of currency notes the hands of the appellant were washed and then it turned into pink colour. Except this the other portion of evidences are proved in favour of the prosecution.
20. PW.3 is another panch witness who is witness for demonstration panchanama as per Ex.P.2 and has deposed that on 19.08.2008 he was summoned by the Lokayukta police, Raichur and therein the PW.1- 39 complainant and another panch witness were there and they were introduced to each other and further he was told that the appellant was asking bribe amount from PW.1 to do the work and there is demonstration panchanama was conducted and phenolphthalein powder was smeared on the currency notes which were given by PW.1 and the PW.3 had noted down the said currency notes during the demonstration panchanama. Further deposed that the said phenolphthalein powder smeared on the currency notes were given to PW.2 and then PW.2 had put into the pocket of complainant- PW.1. Further instructed that the said currency notes would be given to the appellant only after demand made by the appellant and accordingly after drawing up of this demonstration pancanaam as per Ex.P.2 and then all have gone to the office of the appellant and towards the appellant the PW.1 and PW.2 went there through the jeep along with some other police officials. Further, PW.3 had stated that PW.1 had given signal, then the 40 Lokayukta Police conducted raid and apprehended the appellant and when the hands of the appellant were washed with sodium carbonate solution then it turned into pink colour and then said currency notes were tallied which were the same as noted down in the demonstration panchanaam and accordingly the trap panchanama was conducted in the Tahasildar Office as per Ex.P.9.
21. Further PW.3 stated that the appellant had given his explanation in writing as per Ex.P.16 and also photographs were taken as per Exs.P.4 to 8 and P.11 to P14. Upon considering the evidence of PW.3, nothing is revealed that PW.3 is telling lie before the court. There are no admissions revealed that PW.3 is telling lie before the Court. The evidence stated in examination-in-chief is found to be trustworthy. Even if elaborately cross- examination is done, nothing is elicited to discredit the 41 evidence of PW.3. Therefore, evidence of PW.3 inspires confidence of the court.
22. Therefore, taking into consideration of the cumulative effect of evidence of PWs.1 to 3 as above disused, it is proved that the appellant was working as Village Accountant, Idapanur Gram Panchayat and the PW.1- complainant had approached the appellant for mutating his land in favour of his wife and for this the appellant had asked amount of Rs.5,500/- then it was settled for Rs.5,000/- and the PW.1 had approached to Lokayukta police and lodged the complaint as per Ex.P1. From the evidence of PWs.1 to 3, it is proved that PW.1 had approached Lokyakuta Police and lodged complaint as per Ex.P.1.
23. Further the demonstration panchanama and trap panchanama-Ex.P2 and Ex.P9 respectively were recorded before conducting raid and after conducting raid respectively are proved by these two witnesses 42 PWs.2 and 3. Even though the evidence of PW.2, the important aspect is that when the hands of the appellant were washed then turned into pink colour is not stated, but from the evidence of PW.3, it is proved that when the hands of the appellant were washed in sodium corroborate solution that solution turned into pink colour. Therefore, from the evidence of PW.3 and cumulative effect of the evidence of PWs.2 and 3 are taken into consideration, it is proved that the appellant had received amount from PW.1 and the said amount was kept under the ink pad, then the police have conducted raid and seized currency notes and then washed the hands of the appellant then solution was turned into pink colour. Therefore, from the evidence of PWs.2 and 3, the acceptance of the currency notes by the appellant is proved. Furthermore, while taking demonstration panchanama, the PW.3 had noted down the number of currency notes of Rs.4,500/- and the same currency notes were found at the hands of the 43 appellant after taking raid and accordingly, the same is recorded in the trap panchanama. Therefore, the prosecution is able to prove the aspect of demand and acceptance of bribe amount by the appellant. Then as per the prosecution case the evidence of PW.1 the work to be conducted by the appellant is that he had to mutate the name of the wife of PW.1 and for this the appellant asked the money. From the prosecution case, it is revealed that PW.1 had approached the appellant for mutating his wife's name in respect of the land and therefore was about to give application but at that time the appellant has made demand of the amount. Then on the next day the PW.1 had lodged a complaint as per Ex.P.1 before the police. Therefore, in this regard, there cannot be expected that the application of PW.1 is pending with the appellant or in the office of the Tahasildar. Therefore, upon analyzing these evidences, the prosecution has proved the demand of bribe amount made by the appellant and the appellant had accepted 44 the currency notes of Rs.4,800/- from PW.1 in respect of the work as requested by the PW.1 complainant.
24. Then upon considering the evidence of PW.6 who was working as Police Inspector in the Lokayukta Police and he has narrated the sequence of events during the course of investigation from the beginning. The PW.6 had stated that on 19.08.2008 the PW.1 had approached the police and gave FIS and it was reduced into writing and based on that the crime is registered then it was sent to the Special Court and higher authorities.
25. Further it is stated that for drawing-up of demonstration panchanama, he had summoned PWs.2 and 3 and conducted demonstration panchanama as per Ex.P.2 and upon receipt of the currency notes from PW.1 a phenolphthalein powder was smeared on the currency notes and the number of the currency notes were noted down in the demonstration panchanama 45 and then procedure was followed for seizure of said liquid and powder under the demonstration panchanam as per Ex.P.2. Further stated that he has given instruction to PW.1 and also to PW.2 that if the appellant makes demand of the bribe amount, then the PW.1 would give the amount to the appellant and accordingly the PW.1 and PW.2 went to the office of the appellant and therein PW.1 gave signal and then he had conducted raid and caught hold the appellant red- handedly along with currency notes which were kept under the ink pad after receipt of the said amount by the appellant on his own hand. Therefore, a trap panchanama was conducted as per Ex.P.9 and the hands of the appellant was washed it turned into pink colour and then seized the articles and conducted trap panchanam and upon verification of the bribe of currency notes which are the same as stated in demonstration panchanama and after seizure of the 46 same from the appellant, the same were noted in the trap panchanama.
26. Further stated that in this process photographs were taken which were produced before the Special Court as per Ex.P.3 to 8. Further stated that the appellant was asked to give explanation about possession of these currency notes then the appellant has submitted explanation in writing as per Ex.P.16. Further stated that during the course of cross- examination he had obtained service records pertaining to the appellant and stated that as on the date and time of the alleged offence the service records shows that the appellant was working as Village Account as per his service records. Then he made arrangement for sending the seized articles which were phenolphthalein powder, currency notes, solution etc. to the FSL and then since he was promoted to the next higher cadre therefore handed over the said investigation to PW.7. 47
27. PW.7 is the Police Inspector who had only stated that after receiving the investigation papers from PW.6 and on perusal of the records, then he had filed charge sheet before the Special Court as against the appellant. Therefore, upon considering the cross- examination of these witnesses PWs.6 and 7, nothing is elicited that the PW.6 is telling falsehoodness before the court. It is proved that PW.6 has narrated all the consequence of events during the course of investigation from the beginning of lodging of FIS by the PW.1. Therefore, the investigation conducted by PW.6 is found to be fair and there is no cross-examination that there is enmity between PW.6 and the appellant and PW.6 has falsely implicated into the case. Therefore, the evidence of PW.6 the Investigating Officer is found to be inspires confidence of the court and investigation is found to be fair investigation. Therefore, from the evidence of PW.6, it is proved that the appellant has demanded bribe amount and the appellant was caught red-handedly 48 along with possession of currency notes, which were given by PW.1 as discussed above. The appellant has asked such bribe amount for using his official power for making mutation of name of the wife of the PW.1 in the concerned revenue records. Therefore, from the evidence of PW.6 also it is proved that the demand and acceptance of amount by the appellant.
28. Therefore, upon cumulative considering the evidences of PW.1, 2, 3, 6 and 7 as above stated, the prosecution is able to prove the guilt of the appellant beyond reasonable doubt that the appellant has committed the offence as alleged as per charge sheet filed against him. Then upon considering the formal witnesses who are PWs.4 and 5. The PW.4 is an Engineer who had prepared spot sketch of the place of incident and PW.5 is Deputy Commissioner who has accorded sanction of prosecution against the appellant and has power of removal of the cadre of Village 49 Accountant of Gram Panchayat from the service. Therefore, PW.5 is found to be a competent authority for giving sanction of prosecution against the appellant.
29. It is the evidence of PW.5 that all the records pertaining to this case were placed before him and after perusal of the same and for getting prima facie satisfaction of the appellant has committed the offence as alleged. Therefore, accordingly has given sanction for prosecuting the appellant. Upon considering the cross- examination of PW.5 nothing is elicited that PW.5 is not competent authority to give sanction. Further it is also not elicited that PW.5 has not applied his mind while sanctioning. Therefore, the sanction accorded by PW.5 is found to be proper and as per law. Therefore, considering all these evidences as discussed above, the prosecution is able to prove the guilt of the appellant beyond reasonable doubt that the appellant has committed the offence as alleged.
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30. Upon considering the submission made by the counsel for the appellant that two persons namely Govindappa and Narasimha Naik are not examined before the Court even they are made as witnesses in the charge sheet, it is fatal to the prosecution case. But, non-examination of these two witnesses do not affect the prosecution case. Even though in the complaint Ex.P.1 and PW.1 in his evidence had stated that these two persons were accompanied along with him but from the evidence of PW.1, it is proved that the appellant had demanded bribe amount. Just because these two witnesses are not examined cannot be made the prosecution that it is not proved and is liable to be quashed away. Therefore, non examination of these two witnesses who are named in the complaint Ex.P.1 is not fatal to the prosecution case as in otherwise the prosecution is able to prove the guilt of the appellant beyond reasonable doubt.
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31. Considering the submission made by the counsel for the appellant that Govindappa and Narasimhanaik were not examined and these two witnesses are independent witnesses and therefore the evidence of PW.1 does not get corroboration from these independent witnesses. Therefore only from the evidence of PW.1 it cannot be said that the prosecution has proved the guilt against the appellant. Corroboration from the independent witnesses is just mere role and it is always not necessary and required getting corroboration from the independent witnesses and in this regard, it is worthwhile to place reliance on the judgment of the Hon'ble Apex Court in the case of Mukut Bihari & Anr vs State Of Rajasthan [AIR 2012 Supreme Court 2270], wherein Their Lordships at paras 10 and 14 were pleased observe as follows ;-
""10. This Court, after considering various judgments of this Court including Panalal Damodar Rathi, (AIR 1979 SC 1191) (supra) and Smt. Meena Balwant Hemke, (AIR 2000 SC 3377) (supra) held that acceptance of 52 the submission of the accused that the complainant's version required corroboration in all circumstances, in abstract would encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of the prosecution. Law cannot countenance such situation. Thus, it is not necessary that the evidence of a reliable witness is necessary to be corroborated by another witness, as such evidence stands corroborated from the other material on record.
The court further distinguished the case of Panalal Damodar Rathi (supra) on the ground that in that case the Panch witness had not supported the prosecution case and therefore, the benefit of doubt was given to the accused. In Smt.Meena Balwant Hemke (supra) as the evidence was contradictory, the corroboration was found necessary."
"14. So far as the instant case is concerned, the appellants had been working under the health department of the State of Rajasthan. No provision analogous to the paragraphs contained in Railway Vigilance Manual, applicable in the health department of the State of Rajasthan at the relevant time had been brought to the notice of the courts below, nor had been produced before us.
Therefore, it can be held that it is always desirable to have a shadow witness in the trap party but mere absence of such a witness would not vitiate the whole trap proceedings.""
32. Therefore, insisting of independent witnesses for corroboration is not necessary where otherwise 53 prosecution is able to prove the guilt of the appellant. Here, in the present case the evidence of PW.1 is corroborated by the evidence of PWs.2 and 3, regarding the demand made by the appellant and from the evidence of PW.2 the acceptance of amount by the appellant is proved. Therefore, under these circumstances requirement of corroboration by independent witnesses is not necessary and not warranted as per the principle of law laid down by the Hon'ble Apex Court stated supra.
33. Further upon considering the judgment of the Hon'ble Apex Court relied on by the counsel for the appellant in the case of N.Sunkanna vs. Sate of Andhra Pradesh [LAWS (SC) 2015 10 37], upon considering the principle of law laid down in this cited judgment, it is to the effect that mere possession of currency notes from the accused is not sufficient to constitute the offence under the provisions of the 54 Prevention of Corruption Act. Therefore, it is the principle of law laid down that without proof of demand of amount by the accused just recovery of currency notes from the possession of the accused is not sufficient to hold the guilt under the provisions of Prevention of Corruption Act. This is a principle of law laid down by the Hon'ble Apex Court as above stated but in the present case the prosecution is able to prove both aspect, the demand made by the appellant and also he had accepted the amount from PW.1. Therefore, due to difference in factual matrix involved in the case as above stated, the above judgment is not helpful infavour of the appellant.
34. Further it is another observation made by the Hon'ble Apex Court regarding raising presumption as per Section 20 of the Prevention of Corruption Act.
35. It is true that straightaway the presumption cannot be raised, but the prosecution has to prove the 55 demand of illegal gratification beyond reasonable doubt then only the presumption can be raised against the accused that the accused had demanded the bribe amount. In the present case the prosecution has proved the demand of illegal gratification and therefore after proving this fact in issue, presumption is raised as per Section 20 of the Prevention of Corruption Act. But, the appellant has not placed any contra evidence either oral or documentary to rebut the presumption. Therefore, prosecution has accrued the benefit of presumption as per Section 20 of the Prevention of Corruption Act, which can be raised as against the appellant, but at the same time the appellant has failed to rebut the said presumption. Section 20 reads as follows:
"20. Presumption where public servant accepts any undue advantage. - Where, in any trial of an offence punishable under section 7 or section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary to proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or 56 reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11."
36. The frame used in Section 20 is, 'it shall be presumed'. It means, the Court is bound to take the fact as proved for such and such offence is committed under this Act until a particular evidence is adduced to disprove the same and the party interested in disproving the case of the prosecution, then the party disproving must produce such evidence to disprove the fact as stated by the prosecution. Therefore, initially it is the burden on the prosecution to prove the theory of demand, acceptance and such demand and acceptance is in respect of the pending work of the complainant. When it is so established by the prosecution, then the onus shifts on the accused to disprove the same and in such event if the accused is able to disprove the same, then the benefit of presumption cannot be given in 57 favour of the prosecution. This rebuttal of presumption can be made at any stage of the case even during the course of investigation and during the trial. During the course of investigation, appellant/accused has admitted by giving explanation as per Ex.P16, but it does not disprove the case of the prosecution rather than the said explanations fortify the case of the prosecution. Further, during the course of trial when incriminating circumstances put to appellant/accused after completion of evidence of the prosecution, but the appellant/accused has not placed any documents disproving the case of the prosecution and simply denied the prosecution case. Therefore, for rebutting said prosecution case the accused have not made any attempt to produce probable evidence before the Court. Therefore, rightly a presumption can be attributed in favour of the prosecution as per Section 20 of the PC Act.
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37. Therefore upon considering the entire prosecution case and after considering and honouring the submissions made by the counsel for the appellant as well as the learned High Court Government Pleader, it is conclusively proved the fact in issue involved into the case regarding the appellant has demanded the bribe amount from PW.1 and then the appellant has accepted currency notes of Rs.4,800/- in the form of bribe amount. Therefore, these two factors along with the work to be done by the appellant for mutating the name of the wife of PW.1, said bribe amount is asked, is also proved. Therefore, the prosecution is able to prove the guilt of the accused beyond all reasonable doubt and in this regard the Special Court has rightly appreciated the evidence on record and rightly convicted the appellant/accused. Therefore, there is no need to interfere with the judgment of conviction recorded by the Special Court. Thus, it is liable to be affirmed. 59
38. Regarding sentence :-
Upon hearing the quantum of sentence as pleaded by the learned counsel for the appellant and upon making prayer to reduce the quantum of sentence on the ground that now the appellant is aged 64 years and the sentence awarded by the Special Court of 5 years is too longer, considering the age of appellant, therefore prays to reduce the quantum of sentence. Considering the mitigating factor now the appellant is aged 64 years and further submitted that the appellant is suffering from diabetic, arthritis and other old age ailments.
Therefore, prays to show leniency while awarding the sentence.
39. But, on the other hand the learned High Court Government Pleader with all his vehemence opposed for modification of the sentence awarded by the Special Court.
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40. Therefore considering the mitigating factor that now the appellant is retired from the service and now he running 64 years and is suffering from old age ailments like diabetic, arthritis, blood pressure, as submitted by the learned counsel for the appellant that the sentence awarded by the Special Court is needed to be modified. The Special Court has awarded sentence of simple imprisonment for a period of 2 years for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and simple imprisonment for a period of five years for the offence punishable under Section 13(2) of the Prevention of Corruption Act.
41. Even the Special Court has ordered both the substantive sentences shall run concurrently but the appellant has to suffer five years of imprisonment. Therefore, considering the factors that the appellant is now running 64 years and is suffering from old age ailments as above stated. Therefore, I am of the opinion 61 that the appellant is ordered to undergo simple imprisonment for a period of two and half years for the offence punishable under Section 13(1)(d) R/w Section 13(2) of the Prevention of Corruption Act instead of simple imprisonment for a period of five years.
42. Further, the simple imprisonment for a period of two years awarded for the offence punishable under Section 7 of the Prevention of Corruption Act along with fine and default clause is hereby confirmed. Therefore, I pass the following :-
ORDER The appeal is hereby allowed in part.
The judgment of conviction dated 17.08.2012 passed in Special Case No.1/2010 by the Principal Sessions Judge, Raichur, convicting the appellant for the offences punishable under Sections 7 and 13(1)(d) R/w Section 13(2) of the Prevention of Corruption Act is hereby confirmed.62
The order on sentence imposing of simple imprisonment for a period of two years for the offence punishable under Section 7 of the Prevention of Corruption Act along with fine and default clause is hereby confirmed.
The order on sentence imposed for the offence punishable under Section 13(1)(d) R/w Section 13(2) of the Prevention of Corruption Act awarding of five years simple imprisonment is hereby modified and it is ordered that the appellant shall undergo simple imprisonment for a period of two and half years for the offence punishable under Section 13(1)(d) R/w Section 13(2) of the Prevention of Corruption Act by keeping intact the fine amount and the default sentence.
The above stated substantive sentences are modified and shall run concurrently.63
Registry is hereby directed to forward the copy of this judgment to the Special Court along with records summoning the appellant to serve the sentence.
Sd/-
JUDGE LG/sn