Jharkhand High Court
No.Jhdh01-006029-2012) vs The State Of Jharkhand Through ... on 7 June, 2021
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr. Appeal (SJ) No.209 of 2020
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 209 of 2020
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[Against the Judgment of Conviction and Order of Sentence dated 06.02.2020 passed by the Additional Sessions Judge-II-cum-Special Judge, A.C.B., Dhanbad in Special (Vigilance) Case No.13 of 2012 (CNR No.JHDH01-006029-2012)]
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Anil Kumar, aged about 53 year, son of Late Madan Lal, Resident of Kaushambi Apartment, P.O. and P.S. Lalpur, District -Ranchi, Jharkhand. ... Appellant Versus The State of Jharkhand through Anti-Corruption Bureau ... Respondent
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For the Appellant : Mr. Nilesh Kumar, Advocate
For the A.C.B. : Mr. Suraj Verma, Spl. P.P.
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PRESENT
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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
C.A.V. ON 03.03.2021 PRONOUNCED ON 07.06.2021
Anil Kumar Choudhary, J. Heard the parties through video
conferencing.
2. This appeal has been preferred against the Judgment of Conviction and Order of Sentence dated 06.02.2020 passed by the Additional Sessions Judge-II-cum-Special Judge, A.C.B., Dhanbad in Special (Vigilance) Case No.13 of 2012 (CNR No.JHDH01-006029-2012) whereby and where under, the learned court below has held appellant-convict guilty for the offences punishable under Section 7 and under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988. The appellant- convict has been sentenced to undergo Rigorous Imprisonment for four years and to pay a fine of Rs.1,50,000/- for the offence punishable under Section 7 2 Cr. Appeal (SJ) No.209 of 2020 of the Prevention of Corruption Act, 1988 and in default of payment of fine to undergo Simple Imprisonment for a period of six months. For the offence punishable under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988, the appellant-convict has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,00,000/- and in default of payment of fine to undergo simple imprisonment of eight months. Both the sentences were directed to run concurrently.
3. The brief facts of the case is that the appellant-convict while posted as the Executive Officer of the Nagar Panchayat, Chirkunda demanded bribe of ₹ 6000/-from the complainant (PW4) for payment of the final bill amount of ₹ 175,000/-to him. As the complainant did not want to give the bribe, he filed a complaint with the S.P., ACB, Ranchi. The inspector of ACB, Ranchi Sri Keshab Kumar Choudhary (PW1) verified the allegations made in the complaint and submitted his report confirming the demand of illegal gratification by the appellant-convict as alleged in the written complaint submitted by the complainant. On the basis of the report submitted by PW1, this case has been registered. Investigation of the case was entrusted to DSP Dhaneswar Ram. A trap was successfully conducted on 12.06.2012. The appellant-convict was caught red-handed while accepting the bribe amount of Rs. 6000/-. After completion of investigation, charge- sheet for the offences punishable under Section 7 as well as 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 was submitted against the appellant-convict. Separate charges for the offences punishable under Section 7 and 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 were framed against the appellant-convict to which he pleaded not guilty and thus was put to trial.
4. In support of its case, the prosecution altogether examined 6 witnesses while no witness was examined by the defence.
5. Out of the witnesses examined by the prosecution, P.W.4 is the complainant himself. He has stated about the contents of his complaint submitted to the S.P., ACB. He also stated in detail about the pre-trap preparations. He further deposed that on 12.06.2012 at 12.30 p.m. he along with the members of the trap team reached Municipal Office of Dhanbad. He and the PW 1 -who was also the verifying officer went to the appellant-
3 Cr. Appeal (SJ) No.209 of 2020 convict-who was in his office room. The PW4 requested the appellant-convict to pass his outstanding bill. At this, the appellant- convict demanded money from the PW4. Then the PW4 gave the tainted currency notes smeared with chemicals of ₹ 6000/-which was wrapped in a white paper. After receiving the bribe amount, the appellant-convict unwrapped the currency notes and after counting the same kept the same in the drawer of his table in the office and told the PW4 to come on the next date for collecting the cheque. Then the PW4 came out from the office of the appellant-convict and gave the signal to the members of the trap team. Two separate members of the trap team caught hold of the hands of the appellant-convict and search of the appellant-convict was made in presence of two persons from amongst the people assembled there namely Gopal and Manzar Alam. On being asked, the appellant-convict disclosed that he has kept the bribe amount in the drawer of his table and the said money was recovered from the drawer of the table. Upon the hands of the appellant-convict being washed in water were kept in two different glass tumblers the colour of the water turned pink. In his cross-examination the PW 4 has stated that he submitted the bills for his outstanding amount of ₹ 175,000/-, 15-20 days before submitting his complaint. The appellant-convict all along used to make the payment by way of cheque to the complainant. Earlier, the appellant-convict also made the payment of a bill for ₹ 4,25,000/- of the complainant and at that time also he demanded bribe from the complainant but the complainant did not pay him the bribe but promised to pay the bribe at the time of preparation of the final bill. It is pertinent to mention here that there is absolutely no cross- examination of the PW4 vis-à-vis his examination in chief regarding the demand of bribe by the appellant-convict, acceptance of the bribe by him and recovery of the tainted currency notes being the bribe amount from him.
6. PW1- Keshab Kumar Choudhary is the verifying officer as well as the shadow witness of the trap. He has deposed that he verified the complaint of the PW4 on 11. 06. 2012. He found the allegations made in the complaint to be true and submitted his report to the Superintendent of Police, Anti- corruption Bureau. He also identified his verification report, which was marked exhibit-2. He further identified other documents and materials objects seized during the investigation which were marked exhibits. He also 4 Cr. Appeal (SJ) No.209 of 2020 stated about the Constitution of the trap team and the pre-trap preparations in detail. He went to Dhanbad along with the trap team on 12.06.2012. The PW4 first went to the office of the Municipality and the PW1 and PW6 remained in the campus of that office. After 15-20 minutes the PW4 came out from the office and signaled. Thereafter the PW 1 and PW6 entered inside the office and caught hold of one hand each of the appellant- convict. On search being made from the pocket of the appellant-convict the key of the drawer of the table was found. The drawer was opened with the key and from the drawer ₹ 6000/-given by the PW4 was recovered. The numbers of the recovered notes were compared with the numbers of the notes mentioned in the G.C. notes memorandum and the numbers tallied. After preparing sodium carbonate solution, the hands of the appellant-convict were washed one by one with the solution and the colour of the said solutions turned pink. In his cross-examination the PW 1 has stated that it is a fact that the trap was made at Dhanbad and not in Chirkunda. The PW4 contacted the appellant- convict over mobile phone. The PW4 alone entered inside the room where the appellant-convict was sitting. The PW4 entered inside at about 13.30 hours and came out at 13.45 hours. Dhaneswar Ray brought out the key and did the search. In paragraph 97 the PW 1 has stated that it is a fact that in front of him money was brought out from the drawer. The money was not kept inside the drawer in front of the PW1 or any other member of the trap team. He cannot say who kept the money in the drawer and when. He has not seen the demand of giving and taking of the money. It is pertinent to mention here that there is absolutely no cross-examination of the PW1 vis-à- vis his examination in chief regarding the recovery of the tainted currency notes from the appellant-convict.
7. PW6- Jitendra Kumar is also a member of the trap team. He has stated in detail about the pre-trap preparations relating to the complaint submitted by the PW4 against the appellant-convict regarding demand of bribe amount of ₹ 6000/-. On 12.06.2012 they proceeded to the Municipal Office of Dhanbad for the trap. On receiving the signal the PW1 rushed towards the office room followed by the PW 6. The PW 1 and the PW6 caught hold of the right and left hand of the appellant-convict respectively. They came to know that the bribe amount has been kept in the drawer of the table. Upon opening 5 Cr. Appeal (SJ) No.209 of 2020 of the said drawer ₹ 6000/- kept therein was recovered. Upon the numbers of the recovered notes being compared with the numbers of the notes mentioned in the G.C. notes memorandum in presence of the independent witnesses present at the spot, the same tallied. Upon the fingers of the hands of the appellant-convict being washed one by one with sodium carbonate solution, the colour of the solution turned to light pink. In his cross examination the PW6 has stated that he has not seen the giving and taking of the bribe money. It is pertinent to mention here that there is absolutely no cross-examination of the PW6 vis-à-vis his examination in chief regarding the recovery of the tainted currency notes being the bribe amount from the appellant-convict.
8. PW5- Tuntun Prasad Singh is also a member of the trap team. He stated about the pre-trap preparations and also identified his signatures upon the various documents. He deposed that they reached the Municipal Office of Dhanbad at 1:30 PM. On receiving the signal all the members of the trap team rushed towards the office room of the appellant-convict. On search of the appellant-convict being conducted the key of the drawer of his table was found in his pocket. Upon the opening of the drawer the money given as bribe was recovered. The numbers of the notes were compared with the numbers of the notes mentioned in the G.C. notes memorandum and the same tallied. The PW 5 prepared the sodium carbonate solution with water in two glass tumblers. Upon the fingers of the hands of the appellant-convict being washed in the sodium carbonate solution one by one, the colour of the solution turned pink. In his cross-examination the PW 5 has stated that in his presence the appellant-convict has not demanded any money. The appellant- convict was in charge of Dhanbad municipal office and he was posted at Nagar Panchayat, Chirkunda. It is pertinent to mention here that there is absolutely no cross-examination of the PW5 vis-à-vis his examination in chief regarding the recovery of the tainted currency notes being the bribe amount from the appellant-convict.
9. PW2 Sashi Sekhar Singh has proved the sanction order for prosecution of the appellant-convict. In his cross-examination the PW 2 has stated that the signature on the sanction of the prosecution was not put in his presence.
10. PW3 Amit Kumar was the Special Magistrate deputed for the purpose 6 Cr. Appeal (SJ) No.209 of 2020 of the trap. He has stated in detail about the pre-trap preparations. On 12.06.2012 he along with the members of the trap team reached at 1:30 PM near the municipal office of Dhanbad. PW4 signalled after giving the bribe to the appellant-convict. The PW 3 and others went running to the office. Upon being asked the appellant-convict disclosed that he has kept the bribe money in the right side drawer of his table and the key was in his pocket. In presence of two independent witnesses, the appellant-convict opened the drawer of his table with the key. The bribe money of ₹ 6000/- consisting of 5 notes of ₹ 1000/- each and 2 notes of ₹ 500/- each were recovered from his drawer. The numbers of the notes were compared with the numbers of the notes mentioned in the G.C. notes memorandum and the same tallied. Upon the fingers of the hands of the appellant-convict being washed with sodium carbonate solution, the colour of solution turned pink. The PW 3 also identified his signatures on various documents as well as the material exhibits. In his cross-examination the PW3 has stated that though the trap was to be made at Chirkunda but as on the way information was received over mobile phone of the PW4 that the appellant-convict is at Dhanbad office hence the place of trap was changed on the way. It is pertinent to mention here that there is absolutely no cross-examination of the PW3 vis-à-vis his examination in chief regarding the recovery of the tainted currency notes being the bribe amount from the appellant-convict.
11. After closure of the evidence of the prosecution, the statement of the appellant-convict was recorded under Section 313 Cr.P.C. regarding the circumstances appearing in evidence against him. The appellant-convict denied all the questions relating to the circumstances appearing in evidence against him and stated that he is innocent.
12. The learned trial court after considering the evidence in the record observed that all the witnesses of the prosecution, on the matter of trap have supported the case of the prosecution and have deposed about the recovery of the tainted bribe money from the possession of the appellant-convict and held that the evidence in the record is sufficient to establish the charges for the offence punishable under Section 7 as well as under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 and convicted and sentenced the accused-appellant as already indicated above.
7 Cr. Appeal (SJ) No.209 of 2020
13. Mr. Nilesh Kumar- the learned counsel for the appellant submitted that the learned court below failed to appreciate the evidence in the record in its proper perspective and could not consider the fact that the prosecution has miserably failed to establish the factum of demand of bribe amount in question by the appellant-convict, which is the essential ingredient to bring home the charges faced by the appellant-convict in this case. It is next submitted that the learned court below failed to take note of the fact that except the PW4 none of the witnesses have deposed about the demand of bribe by the appellant-convict and even the PW1 who is supposed to the shadow witness of the case has denied that he is a witness of demand or acceptance of bribe by the appellant-convict. It is further submitted that the trial court also failed to consider that the author of the chemical examination report has not been examined in this case as a witness though the said report has been exhibited albeit with objection. It is also submitted by the learned counsel for the appellant-convict that there is discrepancy in the evidence put forth by the witnesses examined by the prosecution hence their testimony does not inspire confidence.
14. Relying upon the judgment of the Hon'ble Supreme Court of India in the case of Panalal Damodar Rathi v. State of Maharashtra, (1979) 4 SCC 526, paragraph-9 of which reads as under:
9. It will be seen that the version of the complainant that the appellant asked the complainant whether he had brought the money and that the complainant told him that he had and that the appellant asked him to pay the money to the second accused is not spoken to by the panch witness PW 3. According to panch witness on the complainant asking the appellant whether his work will be achieved, the appellant assured him in the affirmative and the appellant told the complainant what was to be given to the second accused. It is significant that PW 3 does not mention about the appellant asking the complainant whether he had brought the money and on the complainant replying in the affirmative asking the complainant to pay the money to the second accused. Omission by PW 3 to refer to any mention of money by the appellant would show that there is no corroboration of testimony of the complainant regarding the demand for the money by the appellant. On this crucial aspect, therefore, it has to be found that the version of the complainant is not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied on. (Emphasis supplied) A spirited argument was made by the learned counsel for the appellant-convict that like the case of Panalal Damodar Rathi v. State of 8 Cr. Appeal (SJ) No.209 of 2020 Maharashtra (supra) in this case also there is no corroboration of the testimony of the PW4-complainant regarding the demand for money by the appellant-convict therefore on the same analogy, in this case also the testimony of the PW4 regarding demand of bribe money by the appellant-
convict having not been corroborated, the evidence of PW4 regarding the demand of bribe money by the appellant-convict ought not to be relied upon.
In this respect the learned counsel for the appellant-convict also relied upon the judgment of Hon'ble Supreme Court of India in the case of Ram Prakash Arora v. State of Punjab, (1972) 3 SCC 652, wherein it was inter alia observed as under in paragraph- 9
9. Xxxxxxxxxx The statement of Joginder Singh is not at all impressive and his cross-examination shows that he could not be implicitly relied upon. Dalbir Singh is related to him being his cousin. It must be remembered that both Joginder Singh and Dalbir Singh PWs were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person. (See State of Bihar v. Basawan Singh). The memo Ext. PE which was prepared regarding the taking into possession of the currency notes was witnessed by D.S.P. Mit Singh, Inspector Rajender Lal, Joginder Singh, Dalbir Singh and Arjan Singh. In Basawan Singh case corroboration was found in the evidence of the two search witnesses who were independent and had nothing to do with the raiding party. There is no search witness who is independent in the present case and there is no other evidence from which any corroboration could be found of the evidence given by the members of the raiding party including Joginder Singh and Dalbir Singh. This aspect was not present at all to the mind of the High Court or the learned Special Judge. (Emphasis supplied) and submitted that in this case also there is no independent search witness examined by the prosecution, though as per the case of the prosecution there were two such witnesses. It is then submitted that the non- examination of the independent witnesses is fatal for the case of the prosecution and in this respect the learned counsel for the appellant relied upon the judgment of Hon'ble Supreme Court of India in the case of State of Punjab v. Sohan Singh, (2009) 6 SCC 444 in paragraph 21 of which it was observed as under :
21. It is in that view of the matter the evidence of an independent witness was crucial. Indrajit Singh was an officer working in the Treasury Department. It is ordinarily not expected that a government servant would be 9 Cr. Appeal (SJ) No.209 of 2020 won over so easily. (Emphasis supplied)
15. It is then submitted by the learned counsel for the appellant-convict that mere recovery of the tainted money by itself cannot bring home the charges against the appellant-convict, in the absence of any evidence to prove acceptance of bribe by him upon his demand and as in this case this essential ingredient to constitute the offences for which the appellant-convict faced the trial is absent hence the learned trial court ought to have held that the evidence in the record is insufficient to establish the charges against the appellant-convict. In respect of the settled principle of law that mere recovery of the bribe money by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money, the learned counsel for the appellant-convict relied upon the judgment of Hon'ble Supreme Court of India in the case of Suraj Mal v.
State (Delhi Admn.), (1979) 4 SCC 725 in paragraph-2 of which it has inter alia been observed as under:
2. Xxxxxxxxxxx Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money.
For these reasons, therefore, we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. We, therefore, allow the appeal, set aside the conviction and sentences passed against the appellant. (Emphasis supplied) In respect of this settled principle of law the learned counsel for the appellant-convict also relied upon the judgement of Hon'ble Supreme Court of India in the case of Mukhtiar Singh v. State of Punjab, (2017) 8 SCC 136, at page 144 : wherein the Hon'ble Supreme Court in the facts of that case, where unlike this case, it was the case of the prosecution that the original accused of the case firstly received a bribe of ₹ 3000/-which was paid by the complainant of that case and the occasion for the complainant of that case to report the matter to the vigilance was the subsequent demand of further sum of ₹ 3000/-which were subsequently scaled down to ₹ 2000/-and the bribe money was kept on an open wooden box over the table which was not seized during the investigation, it was observed by the Hon'ble Supreme Court of India that as not only in that case the date or time of first demand/payment 10 Cr. Appeal (SJ) No.209 of 2020 was not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, as even the person in whose presence Rs 3000/- at the first instance is alleged to have been paid has neither been produced in the investigation nor at the trial hence the bald allegation of the complainant with regard to the demand and payment of Rs 3000/- as well as the demand of Rs 2000/- has remained uncorroborated and his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused and in this perspective, the statement of the complainant and the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused and such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Prevention of Corruption Act.
16. The learned counsel for the appellant-convict also drew the attention of the court to the judgment of the Hon'ble Supreme Court of India in the case of A. Subair v. State of Kerala, (2009) 6 SCC 587 wherein unlike the facts of this case, in the facts of that case where the alleged bribe amount was a meagre sum of ₹ 25/- only and the evidence in the record was not inspiring confidence it was observed by the Hon'ble Supreme Court of India as under
in paragraph 30 and 31:
30. In a case such as this an inference of corruption may not be fairly drawn as the alleged demand was of Rs 25 only. In our view, the High Court was not justified in drawing the presumption under Section 20 and holding that the offence punishable under Section 7 of the Act was proved. Mere recovery of currency notes (Rs 20 and Rs 5) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe.
31. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.
11 Cr. Appeal (SJ) No.209 of 2020 (Emphasis supplied) The learned counsel for the appellant-convict next relied upon the judgment of P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 where unlike the facts of this case, in the facts of that case, where the complainant of that case expired and was not available to be examined hence there was no primary evidence regarding any demand by the accused of that case., the Hon'ble Supreme Court of India held as under in paragraph 25 and 26 of the judgment:
"25. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) and (ii) has been proved, would be an inferential deduction which is impermissible in law.
Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) and (ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification.
26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused." (Emphasis supplied) The learned counsel for the appellant-convict next relied upon the judgment of the Hon'ble Supreme Court of India in the case of B. Jayaraj v. State of A.P., (2014) 13 SCC 55 wherein the Hon'ble Supreme Court of India unlike the facts of this case, in the facts of that case where the complainant did not support the case of the prosecution nor stated anything about the demand of bribe and no other witness was examined in respect of demand of bribe by the accused of that case observed as under in paragraph-7 of the case:
7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above 12 Cr. Appeal (SJ) No.209 of 2020 position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v.
State of A.P. and C.M. Girish Babu v. CBI. (Emphasis supplied) The learned counsel for the appellant-convict next relied upon the judgment of the Hon'ble Supreme Court of India in the case of N. Sunkanna v. State of A.P., (2016) 1 SCC 713 wherein the Hon'ble Supreme Court of India unlike the facts of this case, as in the facts of that case where the complainant did not support the case of the prosecution and was declared hostile but the accused was convicted only on the basis of the testimony of the verifying officer who testified that the complainant told before him during the course of the verification that the accused demanded bribe from him, reiterated the settled principle of law as under in paragraph 5:
5. Xxxxxxxxxxx It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine qua non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of the three-Judge Bench of this Court in B. Jayaraj v. State of A.P. and P. Satyanarayana Murthy v. State of A.P. (emphasis supplied) The learned counsel for the appellant-convict ultimately relied upon the judgment of the Hon'ble Supreme Court of India in the case of Sujit Biswas v. State of Assam, (2013) 12 SCC 406 wherein the Hon'ble Supreme Court of India unlike the facts of this case, in the facts of that case based on circumstantial evidence involving the offences punishable under section 376 (2) (f) and 302 of the Indian Penal Code reiterated the settled principle of law regarding the criminal trial as under in paragraph 13:
13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite 13 Cr. Appeal (SJ) No.209 of 2020 large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P., State v. Mahender Singh Dahiya and Ramesh Harijan v. State of U.P.) (emphasis supplied)
17. Mr. Nilesh Kumar then submitted that the learned trial court failed to consider that the prosecution has not examined several members of the trap team as witnesses and has also not examined the two independent seizure witnesses and even did not examine the Investigating Officer of the case;
though in the appeal memo there is no averment regarding non-examination of the Investigating Officer. Mr. Kumar also submitted that in this case there is absolutely no evidence regarding the demand of illegal gratification. Therefore it is submitted that no offence punishable under Section 7 of the Prevention of Corruption Act, 1988 or for that matter Section 13 (2) of the Prevention of Corruption Act, 1988 read with Section 13 (1) (d) (i) and (ii) of the said Act is made out against the appellant-convict. It is then submitted that evidence of mere recovery of tainted money with the post trap formalities, by itself is not sufficient to constitute the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 or for that matter Section 13 (2) of the Prevention of Corruption Act, 1988 read with Section 13 (1) (d) (i) and (ii) of the said Act, so the appellant-convict be acquitted of the charges by at least giving him the benefit of doubt. It is lastly submitted that the impugned judgment of conviction and order of sentence be set aside and the appellant-convict be acquitted of the charges.
18. Mr. Suraj Verma - the learned counsel for the respondent-Anti-
14 Cr. Appeal (SJ) No.209 of 2020 Corruption Bureau on the other hand defended the impugned judgment of conviction and order of sentence and submitted that the witnesses of the prosecution have amply proved the case of the prosecution beyond all reasonable doubts. It is next submitted that the P.W.4, has undisputedly and categorically stated in his deposition that upon demand of the money by the appellant-convict he handed over the tainted money to the appellant-convict and after receiving the bribe amount the appellant-convict told the PW4, to come on the next day to collect the cheque and on being asked, the appellant- convict disclosed that he has kept the bribe amount in the drawer of his table and the said money was recovered from the drawer of the table and upon the fingers of the hands of the appellant-convict being washed in sodium carbonate solution, the colour of solution turned pink; has not been challenged in his cross-examination as absolutely no cross-examination of him in this respect has been made by the defence hence the same has to be accepted as true. It is next submitted that in view of the unchallenged and unimpeachable testimony of the P.W.4 in respect of the demand of money by the appellant-convict, it is fallacious for the appellant-convict to claim that the prosecution has failed to prove the demand of bribe amount by the appellant-convict. It is next submitted that similarly, nothing has been elicited in the cross-examination of any of the material prosecution witnesses being the PW1, PW3, PW5 or PW6 to discredit or demolish their testimonies regarding the recovery of the tainted money from the drawer of the table of the appellant-convict, after the appellant-convict opened the drawer of his table with the key kept in his pocket or for that matter the colour of the sodium carbonate solution turning pink, upon the fingers of the both hands of the appellant-convict being washed with the said solution as also that the numbers of the seized notes tallied with the numbers mentioned in the G.C. notes memorandum and these portions of the testimonies of the material witnesses have also remained intact; in the absence of any cross examination by the defence, regarding those portions of their testimony made in the examination in chief of each of these prosecution witnesses.
19. Relying upon the judgment of Hon'ble Supreme Court of India in the case of Prakash Chand v. State (Delhi Admn.), (1979) 3 SCC 90 it is submitted by the learned counsel for the respondent-Anti-Corruption Bureau that law 15 Cr. Appeal (SJ) No.209 of 2020 is well settled that a court may act upon the uncorroborated testimony of a trap witness, if the court is satisfied from the facts and circumstances of the case that the witness is a witness of truth. In this respect learned counsel for the respondent-Anti-Corruption Bureau drew the attention of the court to para-6 of the said judgment wherein, after taking note of its judgment in the case of Ram Prakash Arora v. State of Punjab, (supra) relied upon by the learned counsel for the appellant-convict in this case, it has inter alia been observed by the Hon'ble Supreme Court of India in paragraph 6 of that judgment that in the case of Ram Prakash Arora v. State of Punjab, (supra) the honourable Judge who passed the judgment said that in an appropriate case corroboration may be sought and not that corroboration should invariably be sought and that in the case of Ram Prakash Arora v. State of Punjab, (supra) as it was found that the witnesses could not be implicitly relied upon, therefore, corroboration was necessary. Paragraph 6 of the judgment of Supreme Court of India in the case of Prakash Chand v. State (Delhi Admn.), (Supra) reads as under:
6. We are unable to agree with the submission of Shri Anthony that no conviction can ever be based on the uncorroborated testimony of a person in the position of PW 6 who, for the sake of felicity may be described as a "trap witness". Xxxxxxxxxxx Xxxxxxxxxx On the other hand a court may well be justified in acting upon the uncorroborated testimony of a trap witness, if the court is satisfied from the facts and circumstances of the case that the witness is a witness of truth.
Shri Anthony referred us to the decisions of this Court in Ram Prakash Arora v. State of Punjab and Darshan Lal v. Delhi Administration. In the first case Grover, J., observed as follows: "It must be remembered that both Joginder Singh and Dalbir Singh PWs were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person." All that Grover, J., said was that in an appropriate case corroboration may be sought and not that corroboration should invariably be sought. In the particular case it was found that the witnesses could not be implicitly relied upon and, therefore, corroboration was necessary. In the second case a string of circumstances was noticed which made it necessary that evidence of the witnesses who had laid the trap should not be acted upon without independent corroboration. This decision also does not lay down that the uncorroborated testimony of a trap witness can never be acted upon. That the law did not require any such corroboration was laid down in State of Bihar v. Basawan Singh and Bhanuprasad Hariprasad Dave v. State of Gujarat. In Bhanuprasad case it was observed by Hegde, J., as follows:
"Now coming back to the contention that the appellants could not have
16 Cr. Appeal (SJ) No.209 of 2020 been convicted solely on the basis of the evidence of Ramanlal and the police witnesses, we are of opinion that it is an untenable contention. The utmost that can be said against Ramanlal, the Deputy S.P. Brulker and Santramji is that they are partisan witnesses as they were interested in the success of the trap laid by them. It cannot be said -- and it was not said -- that they were accomplices. Therefore, the law does not require that their evidence should be corroborated before being accepted as sufficient to found a conviction." (Emphasis supplied)
20. It is then submitted by Mr Verma the learned counsel for the respondent- Anti-Corruption Bureau that this is not a case where there is absolutely no corroboration of the testimony of the PW4. Rather the other prosecution witnesses who were the members of the trap team have beyond any reasonable doubt established the fact that soon after the PW4 came out from the office room of the appellant-convict they rushed to the room, caught hold of the hands of the appellant-convict and the tainted money being currency notes- the numbers of which were mentioned in the pre-trap memorandum were recovered from the drawer of the table of the appellant- convict, the key of which was found in the pocket of the appellant-convict and there is absolutely no cross-examination of any of the prosecution witnesses about this material parts of their testimony stated by each of them in their respective examination in chief consistently hence these portion of the testimonies of the prosecution witnesses are to be accepted to be true and this amply corroborates the testimony of PW4 and the same establishes beyond reasonable doubt that the appellant-convict has accepted the bribe amount of ₹ 6000/-upon demand from the complainant and the bribe amount has been recovered soon after the trap.
21. It is then submitted by Mr Verma that it is not the case of the appellant-convict that he has been prejudiced in any manner by the non- examination of the Investigating Officer as nowhere in the appeal memo there is any whisper regarding the non-examination of the Investigating Officer or for that matter any prejudice having been caused to the appellant- convict for such non-examination. It is further submitted that though at the hearing of the appeal, the learned counsel for the appellant-convict agitated about being given the benefit to the appellant-convict for non-examination of the Investigating Officer but even at the hearing of the appeal it was not the case of the appellant-convict that he has been prejudiced in any manner by such non-examination. It is next submitted that as nothing has been elicited 17 Cr. Appeal (SJ) No.209 of 2020 in the cross-examination of any of the witnesses vis-à-vis their statement made before the Investigating Officer nor there is any dispute regarding the place of occurrence, under such circumstances no prejudiced having been caused to the appellant-convict, the non-examination of the Investigating Officer will not affect the case of the prosecution in any manner. It is further submitted by Mr Verma that it is a settled principle of law that like the facts of this case, where the evidence in the record clearly establishes the offences having been committed by the accused, in such cases, the prosecution case should not fail for non-examination of the Investigating Officer and no universal strait-jacket formula has ever been laid down that non-examination of Investigating Officer per se vitiates a criminal trial. In support of his contention, Mr Verma relied upon the judgment of the Hon'ble Supreme Court of India in the case of Behari Prasad & Ors. v. State of Bihar, (1996) 2 SCC 317 paragraph-23 of which reads as under:
23. It, however, appears to us that the entire case diary should not have been allowed to be exhibited by the learned Additional Sessions Judge. In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eyewitnesses.
Such evidences are in conformity with the case made out in FIR and also with the medical evidence. Hence, for non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non- examination of Investigating Officer per se vitiates a criminal trial. These appeals, therefore, fail and are dismissed. The appellants who have been released on bail should be taken into custody to serve out the sentence. (Emphasis supplied)
22. It is then submitted by Mr Verma that PW 4 is a truthful witness. He has given evidence in a straight forward manner and was unshaken in cross- examination and there is no reason to discredit his testimony. further the testimonies of the witnesses of the prosecution has remained unimpeachable, hence, it is submitted that the conviction and sentence of the appellant- convict is proper and the same ought not be set aside and this appeal, being without any merit be dismissed.
18 Cr. Appeal (SJ) No.209 of 2020
23. Having heard the rival submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that there is no dispute that it is a settled principle of law that mere recovery of the bribe money by itself cannot bring home the charge for the offences punishable under section 7 or 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money, as has inter alia been held in the cases of Suraj Mal Versus State (Delhi Administration) (Supra), A.Subair Versus State of Kerala (Supra), P.Satyanarayana Murthy Versus State ofA.P.(Supra), B. Jayaraj Versus State of A.P.(Supra), N.Sunkanna Versus State of A.P.(Supra), relied upon by the learned counsel for the appellant-convict and as already discussed above in this judgment while referring to the submissions made by the learned counsel for the appellant-convict. There is also no quarrel that it is also a settled principle of law that suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved as has inter alia been held in the cases of P.Satyanarayana Murthy Versus State ofA.P.(Supra) and Sujit Biswas Versus State of Assam (Supra) also relied upon by the learned counsel for the appellant-convict and as already discussed above in this judgment while referring to the submissions made by the learned counsel for the appellant-convict.
24. So far as the contention of the appellant-convict that even the shadow witness being the PW 1 having not seen the demand and acceptance of the bribe money by the appellant-convict is concerned, it is pertinent to mention here that PW4 never stated that in presence of the PW 1 he has paid the demanded money or for that matter PW1 was an eyewitness to the demand or of money by the appellant-convict from the PW4. There cannot be any hard and fast rule that in all cases the shadow witness has to be the eye witness to the demand and acceptance of the bribe amount by the accused person of the case. There may be cases where it is not possible for anybody else than the complainant to witness the demand and acceptance of the bribe money by the accused of the case, for various reasons. In fact in the case of State of U.P. v. Zakaullah, (1998) 1 SCC 557 where one of the reasons which 19 Cr. Appeal (SJ) No.209 of 2020 the learned Single Judge advanced for interfering with the conviction and sentence was that nobody overheard the demand made by the delinquent officer for bribe the Hon'ble Supreme Court of India observed as under in paragraph-14:
14. The two remaining reasons, i.e., nobody overheard the demand made by the respondent for bribe and that the amount was found not in the right pocket but only in the left pocket, are flippant grounds which should never have merited consideration.Xxxxxxxxx (Emphasis supplied) Without any doubt this is one of such case, where the shadow witness could not see the demand and acceptance of the bribe amount by the accused of this case who is the appellant-convict in this case. Thus merely because the PW 1 is not the eyewitness to the demand and acceptance of bribe by the appellant-convict and accordingly he has truthfully stated that he had not seen the demand and acceptance of the bribe amount by the appellant-
convict; the same will not be fatal for the case of the prosecution more so in view of the unchallenged and unimpeachable testimony of the PW4 regarding the demand and acceptance of the bribe money by the appellant- convict as well as recovery of the same subsequently from the drawer of his table.
25. So far as the contention of the appellant-convict regarding the author of the chemical examination report has been examined as a witness in this case though the said report has been exhibited albeit with objection is concerned; in the case of State of U.P. vs. Zakaullah reported in (1998) 1 SCC 557 wherein in the facts of that case where the complainant's evidence was jettisoned on the mere ground that since he had a grouse against the delinquent public servant he might falsely have implicated the public servant, the Hon'ble Supreme Court of India observed that such a premise is fraught with the consequence that no bribe giver can get away from such stigma in any graft case and went on to say that the very fact that the complainant filed a complaint with the Anti-Corruption Bureau is reflective of his grievance. Such a handicap in his evidence may require the court to scrutinize it with greater care, but it does not call for outright rejection of his evidence at the threshold. In the case of Hazari Lal vs. State (Delhi Administration) reported in (1980) 2 SCC 390 which was referred to by the Hon'ble Supreme Court of India in paragraph no.10 of State of U.P. vs. 20 Cr. Appeal (SJ) No.209 of 2020 Zakaullah (supra) it was observed that every citizen of India must be presumed to be an independent person until it is proved that he was a dependent on police or other officials for any purpose whatsoever. The Hon'ble Supreme Court of India in paragraph no.11 and 12 of State of U.P. vs. Zakaullah (supra) relying upon the judgment in the case of Prakash Chand vs. State (Delhi Administration) (supra) and Hazari Lal vs. State (Delhi Administration) (supra) held that officer who arranges the trap makes arrangement to smear phenolphthalein powder in currency notes in order to satisfy himself that the public servant had in fact received the bribe and not that the currency notes were just thrust into the pocket of any unwilling officer. Such a test is conducted for his conscientious satisfaction that he was proceeding against a real bribe taker and that an officer with integrity is not harassed unnecessarily. Regarding not sending the solution collected in a phial during the trap for chemical examination, the Hon'ble Supreme Court of India in State of U.P. vs. Zakaullah (supra) has observed that the solution in a trap case is collected not because there is any such direction by the statuary provision but for the satisfaction of the officer that the suspected public servant would have clearly handled the bribe money therefore if there is no material discrepancy in the evidence regarding preparation of recovery-memo, the reliability of the trap cannot be stated to be impaired for not sending the solution collected in a phial during the trap for chemical examination. It is pertinent to mention here that this is not a case where the sodium carbonate solution was not given for chemical examination rather in this case the sodium carbonate solution having trace of phenolphthalein was sent for chemical examination and the chemical examination report is on the record and has been marked Exhibit albeit with objection. The Hon'ble Supreme Court of India in the case of Bhupinder Singh vs. State of Punjab reported in AIR 1988 SC 1011 held in paragraph no.13 that no hard and fast rule can be laid down as regards the value to be attached to the report of the chemical examiner. Section 293 of the Code of Criminal Procedure provides that the report of scientific experts may be used as evidence in any inquiry, trial or other proceedings of the court. The chemical examiner does not as a rule give an opinion as to the cause of death but merely gives report of the chemical examination of the substance sent to 21 Cr. Appeal (SJ) No.209 of 2020 him. The report by itself is not crucial. It is a piece of evidence. The only protection to it is that it does not require any formal proof.
Under such circumstances, this Court is of the considered view that the contention of the appellant-convict that the author of the chemical examination report has not been examined in this case is a quail statement for setting aside the conviction of the appellant-convict as made by the trial court.
26. So far as the contention of the appellant-convict that the testimony of the PW4 regarding demand of bribe money by the appellant-convict having not been corroborated hence the evidence of PW4 regarding the demand of bribe money by the appellant-convict ought not to be relied upon in view of the principle of law settled in the case of Prakash Arora v. State of Punjab, (supra) is concerned, the same has no legs to stand. As already indicated above in this judgement while discussing the submissions made by the respondent, the principle of law in this respect has been clarified by the Hon'ble Supreme Court of India in the case of Prakash Chand v. State (Delhi Admn.), (Supra) wherein the Hon'ble Supreme Court of India clarified that in the case of Prakash Arora v. State of Punjab, (supra) the Hon'ble Supreme Court of India did not say that the testimony of the complainant in a trap case has to be corroborated in every case rather it said that in an appropriate case corroboration may be sought when like the case of Prakash Arora v. State of Punjab, (supra) it is found that the witnesses could not be implicitly relied upon and only in those cases corroboration is necessary. Further the facts of the case of Ram Prakash Arora v. State of Punjab, (supra) is different from the facts of this case in the sense though in that case the statement of one of the prosecution witness namely Joginder Singh was not at all impressive and his cross-examination showed that he could not be implicitly relied upon but in this case the PW4 it is a trustworthy witness and there is absolutely no cross-examination on any material particulars deposed by him in his examination in chief regarding the three ingredients of demand of money by the appellant-convict, acceptance of the money by him and recovery of the bribe amount from him.
27. The Hon'ble Supreme Court of India also reiterated the settled principle that where upon a bribe been demanded from a man; if without 22 Cr. Appeal (SJ) No.209 of 2020 giving the bribe he goes to the police or magistrate and brings them to witness the payment, it will be a legitimate trap and in such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the court depending upon the facts and circumstances of each case; in the case of M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351, paragraph- 22 of which inter alia reads as under:
22. Xxxxxxxxx Therefore in seeking corroboration for the evidence of trap witnesses a distinction has to be drawn where participation of an individual in a crime is not voluntary but is the result of pressure. In such a case the element of mens rea to commit the crime is not apparent and (sic) cannot strictly be classified as an accomplice and at any rate he cannot be treated as being on the same footing. Where a bribe has already been demanded from a man and if without giving the bribe he goes to the police or magistrate and brings them to witness the payment it will be a legitimate trap and in such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the court depending upon the facts and circumstances of each case. However as a rule of prudence, the court has to scrutinise the evidence of such interested witnesses carefully. (Emphasis supplied) Hon'ble Supreme Court of India also reiterated the settled principle of law in the case of M.O. Shamsudhin v. State of Kerala, (supra) that under such circumstances the corroborating evidence can be even by way of circumstantial evidence also and that no general rule can be laid down with respect to the nature of evidence required to corroborate the testimony of a witness and the same will depend upon the facts and circumstances of a particular case, taking into consideration the nature of the crime, the character of the trap witnesses etc. and further reiterated the settled principle of law that 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 and that 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; by observing thus in paragraph-23 of the said judgment which reads as under:
23. Now coming to the nature of corroborating evidence that is required, it is
23 Cr. Appeal (SJ) No.209 of 2020 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. However, it is cautioned that the evidence of a bribe-giver has to be scrutinised very carefully and it is for the court to consider and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon it or not in those given circumstances. (Emphasis supplied)
28. So far as the contention of the learned counsel for the appellant-convict regarding the judgment of Hon'ble Supreme Court of India in the case of Panalal Damodar Rathi v. State of Maharashtra (supra) is concerned the same has been distinguished by the Hon'ble Supreme Court of India in the case of M.O. Shamsudhin v. State of Kerala, (supra) relying upon its judgment rendered by a Bench of five Judges in the case of State of Bihar v. Basawan Singh (AIR 1958 SC 500); by inter alia observing as under in paragraph- 24
24. Xxxxxxxxxx The facts in Panalal Damodar Rathi case are distinguishable namely that the panch witness who was also present with the complainant who is alleged to have given the money, did not say a word about the alleged demand and in that view of the matter it was held that there was no corroboration. But it must be borne in mind that corroboration can be by way of circumstantial evidence also. In the instant case, PW 1 has no axe to grind against A-1. It is not in dispute that he had to get a patta issued by A-1 and he categorically stated that A-1 made the demand. A-2 was his assistant and the tainted money was recovered from A-2 while he was just going out of the office of A-1. Unless A-1 has demanded the money and has also directed him to hand over the same to A-2, there was no reason at all as to why PW 1 should hand over the money to A-2. PW 1 has consistently stated that A-1 demanded the bribe and that A-2 received the amount as stated by him. Therefore it cannot be said that there is no corroboration regarding the demand. This is a case where each of the accused tried to throw the blame on the other but taking the overall circumstances into consideration in the light 24 Cr. Appeal (SJ) No.209 of 2020 of the evidence of PWs 3 and 4 along with the evidence of PWs 1 and 2 both the courts below have consistently held that the evidence of these witnesses establishes the guilt of the accused and we see no reason to come to a different conclusion. In this view of the matter it is not necessary to go into the question whether the statement made by A-2 which is in the nature of a confession by a co-accused can be used against A-1. (Emphasis supplied) Further the facts of the case of Panalal Damodar Rathi v. State of Maharashtra (supra) are different from the facts of this case in the sense that in that case the accused person was not paid any money directly rather the second accused received the money for the first accused and the 1st accused was before the court as appellant whereas in this case there is only one accused and he is the person who directly received the bribe amount from the complainant-PW4 and the PW4 has categorically stated about the demand of the bribe amount from him by the appellant-convict of this case and the appellant-convict having accepted the bribe amount from the PW4 and the said bribe amount has been recovered from the appellant-convict.
In view of the aforesaid settled principle of law as enunciated in the case of M.O. Shamsudhin v. State of Kerala, (supra) upon relying on its judgment in the case of State of Bihar v. Basawan Singh (supra) rendered by a Bench of five Judges, as well as the other judgements of the Hon'ble Supreme Court of India as discussed above in this judgment, this court is of the considered view that in the facts of this case the ratio of the case of Panalal Damodar Rathi v. State of Maharashtra (supra) is of no help to the appellant-convict.
29. So far as the case of State of Punjab Versus Sohan Singh (supra) is concerned in the facts of that case which are entirely different from the facts of this case, as in the case of State of Punjab v. Sohan Singh, (supra) the testimony of the complainant was shaky and the accused in that case had no role to play in the work, for which he had allegedly paid the bribe amount by the complainant and the work related to that offence was exclusively in the domain of the higher authorities whereas in this case as already mentioned above the testimony of PW4 is trustworthy and there is no dispute that the appellant-convict of this case was the person vested with the authority to release the payment of the complainant and his father, for which upon demand the appellant-convict was paid ₹ 6000/- by the complainant-PW4.
25 Cr. Appeal (SJ) No.209 of 2020 Moreover in that case the independent witness being an employee of Treasury Department and being a government servant was not examined, so the Hon'ble Supreme Court of India observed that in that particular case keeping in view the facts of that case examination of independent witness was necessary. But as already indicated above the settled principle of law in this respect is that in an appropriate case for example a case in which the witnesses could not be implicitly relied upon, corroboration may be sought and not that corroboration should invariably be sought nor such a law has been laid down in the case of State of Punjab Versus Sohan Singh (supra). Further unlike the case of State of Punjab v. Sohan Singh, (supra) in this case the seizure witnesses are private persons who incidentally were present at the place of occurrence and they are witness to the limited extent of having witnessed recovery of ₹ 6000/- from the drawer of the table of the appellant- convict but the said facts have been deposed in a trustworthy manner by several witnesses examined by the prosecution in this case, as already indicated above and their testimony in this respect has not been challenged in their respective cross-examination hence the ratio of the judgment in the case of State of Punjab v. Sohan Singh, (supra) relied upon by the learned counsel for the appellant-convict is not applicable to the facts of this case more so because it is a settled principle of law that quality of evidence is what matters and not quantity of evidence and if the prosecution has proved its case beyond reasonable doubt by examining adequate number of witnesses it is not necessary to examine all the witnesses more so when no prejudice having been caused to the accused is pleaded by the accused. Hon'ble Supreme Court of India in the case of Rajesh Singh v. State of U.P., (2011) 11 SCC 444 observed as under in this respect in paragraph- 25:
"25. Further the trial court has found fault with the fact that the other witnesses like Shiv Kumar were not examined. That would be hardly a circumstance in favour of the defence, particularly, when the two other witnesses were offered. It is not the quantity but the quality of the evidence which matters." (Emphasis supplied) Moreover it is a fact that in these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. The Hon'ble Supreme Court of India in the case of Sadhu Saran Singh v. State of U.P. & Ors., (2016) 4 SCC 357, observed as under in this 26 Cr. Appeal (SJ) No.209 of 2020 respect in paragraph-29:
"29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy." (Emphasis supplied)
30. Hon'ble Supreme Court of India in the case of B. Noha v. State of Kerala & Anr., (2006) 12 SCC 277 in the facts of that case where PW 1 of that case deposed that he told the accused that he had brought the money directed by the accused, at which the accused asked the PW 1 to take a cut and give the same to him, the Hon'ble Supreme Court of India observed that as it was proved that there was voluntary and conscious acceptance of money so there is no requirement of any further burden being cast upon the prosecution to prove by direct evidence, the demand or motive by relying upon its judgment in the case of State of A.P. v. Kommaraju Gopala Krishna Murthy (2000)9 SCC 752 wherein it was held that when an amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. Paragraphs 10 and 11 of the judgment in the case of B. Noha v. State of Kerala, (supra) reads as under:
"10. The evidence shows that when PW 1 told the accused that he had brought the money as directed by the accused, the accused asked PW 1 to take a cut and give the same to him. When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi v. State of Maharashtra as follows: (SCC p. 577, para 12) "12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or 27 Cr. Appeal (SJ) No.209 of 2020 forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
11. This decision was followed by this Court in M. Narsinga Rao v. State of A.P. There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW
1. It was held in the decision in State of A.P. v. Kommaraju Gopala Krishna Murthy that when an amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused. (Emphasis supplied)
31. To the same effect is the judgment of Hon'ble Supreme Court of India in the case of Tarsem Lal v. State of Haryana (AIR 1987 SC 806) wherein in the facts of that case where the Sub-Divisional Officer, and another person went to Tehsil premises in a Jeep and waited near the tea stall for a signal and on receiving the signal they reached there and on personal search currency notes of Rs. 150/- were recovered from the person of the appellant and on these facts the appellant was prosecuted and was convicted and sentenced and the facts were not disputed, Hon'ble Supreme Court of India observed as under in paragraph 6:
6 . Xxxxxxxxx In fact where the receipt of the amount and its recovery is not disputed it is not necessary for us to go through the evidence and examine it afresh, although learned Counsel went through the evidence in detail. The only question is as to whether the Courts below were right in rejecting the explanation of the appellant for receipt of Rs. 150/-. The explanation given by the appellant which was seriously pressed by the learned Counsel for the appellant was that he had received this amount to be deposited in the small savings scheme on behalf of Gian Singh but it is significant that neither he had made any note of this fact nor given any receipt to Gian Singh. Apart from it is significant that the Sub-Divisional Officer who was a revenue officer and the appellant being a Patwari was his subordinate. The normal conduct of the appellant would have been to tell him as soon as he arrived for search that in fact he had received this amount to be deposited in the small savings scheme. It is impossible to believe that if the appellant had received this amount for being deposited in the small savings scheme he would have 28 Cr. Appeal (SJ) No.209 of 2020 not opened his mouth and permitted the search and recovery of this amount from his pocket to be done by the Sub-Divisional Officer and allowed the matter to be handed over to the Police and still would not have come out to say what he chose to say at the trial. This conduct of the appellant in not coming out with this explanation instantaneously goes a long way to make this explanation just an afterthought specially when Sub-Divisional Officer conducted the search and recovered this amount from his person. In this view of the matter therefore in our opinion both the Courts below were right in discarding this explanation of the appellant. We therefore see no substance in this contention advanced on behalf of the appellant. (Emphasis supplied)
32. This principle of law was also reiterated by the Hon'ble Supreme Court of India in its judgment in the case of State of Gujarat v. Navinbhai Chandrakant Joshi & Ors., (2018) 9 SCC 242 : (2018) 3 SCC (Cri) 730, by observing as under in paragraph 11 :
"Xxxxx Since it is established that the accused was possessing the bribe money, it was for them to explain that how the bribe money has been received by them and if he fails to offer any satisfactory explanation, it will be presumed that he has accepted the bribe."
This court is conscious of the fact that the said judgment in the case of State of Gujarat v. Navinbhai Chandrakant Joshi, (2018) 9 SCC 242 was later on modified by the Hon'ble Supreme Court of India reported in State of Gujarat v. Navinbhai Chandrakant Joshi, (2019) 13 SCC 361 by observing as under:
"1. This is a petition filed by Respondent 1-Accused 2 to modify the judgment dated 17-7-2018 in State of Gujarat v. Navinbhai Chandrakant Joshi1. In para 3 of the judgment, Respondent 1-Accused 2 has been stated to be the government servant, which is not factually correct. Though, Respondent 1-Accused 2 is not a government servant, bribe amount in currency notes of Rs 500 were recovered from him only; there were signs of anthracene powder noticed from the shirt pocket of Respondent 1-Accused 2. Considering the fact that currency notes were recovered form Respondent 1-Accused 2, in our view, the ingredients of Section 8 of the Prevention of Corruption Act, 1988 are established. The conviction of Respondent 1-Accused 2 under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is modified as the conviction under Section 8 of the said Act, and the sentence of one year imposed is reduced to six months.
2. The judgment shall be modified accordingly."
But reiteration of the said principle has remained intact even after the said modification.
33. So far as the contention of the appellant regarding the independent 29 Cr. Appeal (SJ) No.209 of 2020 witnesses having not being examined in this case by the prosecution and the discrepancy in the testimonies of the witnesses examined in this case on some material aspects as well as non-examination of other witnesses who assembled at the place of occurrence is concerned, it is pertinent to mention here that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant and in the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience, as has been observed by the Hon'ble Supreme Court of India in the case of State of U.P. vs. Dr. G. K. Ghosh reported in AIR 1984 SC 1453 para-11 of which reads as under:-
11. "It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party namely that he is an interested witness. This is true, but only to an extent a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government officer making a demand for illegal gratification is protected and the role of his department in the protection of such citizen is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same it must be realised that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The Court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case xxxxx ."
34. It is also a settled principle of law that when the witnesses are examined after a long time from the date of occurrence as in this case though the occurrence took place on 12.06.2012 and the P.W.1 was examined on 13.07.2013 whereas the P.W.6 was examined on
30 Cr. Appeal (SJ) No.209 of 2020 14.08.2018. Such witnesses cannot recollect and narrate the entire conversation with the photographic memory notwithstanding hiatus of passage of time as has been held by the Hon'ble Supreme Court of India in the case of Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi) reported in (2020) 2 SCC 88 para- 14 of which reads as under:-
14. "The contradictions that have crept in the testimonies of Nand Lal (PW 2) and Hemant Kumar (PW 3) noticed above and on the question of the total amount demanded or whether Nand Lal (PW 2) had earlier paid Rs 500 are immaterial and inconsequential as it is indisputable that the bribe was demanded and taken by the appellant on 3-8-1994 at about 10.30 a.m. The variations as highlighted lose significance in view of the proven facts on the recovery of bribe money from the pant pocket of the appellant, on which depositions of Nand Lal (PW 2), Hemant Kumar (PW 3) and Rohtash Singh (PW 5) are identical and not at variance. The money recovered was the currency notes that were treated and noted in the pre-raid proceedings vide Ext.
PW 2/G. The aspect of demand and payment of the bribe has been examined and dealt with above. The contradictions as pointed out to us and noted are insignificant when juxtaposed with the vivid and eloquent narration of incriminating facts proved and established beyond doubt and debate. It would be sound to be cognitive of the time gap between the date of occurrence, 3-8-1994, and the dates when the testimony of Nand Lal (PW 2) was recorded, 9-7-1999 and 14-9-1999, and that Hemant Kumar's (PW 3) testimony was recorded on 18-12-2000 and 30-1-2001. Given the time gap of five to six years, minor contradictions on some details are bound to occur and are natural. The witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time. Picayune variations do not in any way negate and contradict the main and core incriminatory evidence of the demand of bribe, reason why the bribe was demanded and the actual taking of the bribe that was paid, which are the ingredients of the offence under Sections 7 and 13 of the Act, that as noticed above and hereinafter, have been proved and established beyond reasonable doubt. Documents prepared contemporaneously noticed above affirm the primary and ocular evidence. We, therefore, find no good ground and reason to upset and set aside the findings recorded by the trial court that have been upheld by the High Court. Relevant in this context would be to refer to the judgment of this Court in State of U.P. v. G.K. Ghosh wherein it was held that in a case involving an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, it may be safe to accept the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and inconsistent with his innocence, there should be no difficulty in upholding the conviction. (Emphasis Supplied) 31 Cr. Appeal (SJ) No.209 of 2020
35. It is a settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue and without this, it is not possible to impeach his credibility. The Hon'ble Supreme Court of India in the case of Laxmibai (Dead) Thr. LRs. & Anr. vs. Bhagwantbuva (Dead) Thr. LRs. & Ors. reported in AIR 2013 (SC) 1204 in para-31 in this respect held as under :-
31. "Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 : (1993 AIR SCW 3675); State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 : (1998 AIR SCW 1200); Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 : (2001 AIR SCW 3042); and Sunil Kumar & Anr. v. State of Rajasthan, AIR 32 Cr. Appeal (SJ) No.209 of 2020 2005 SC 1096) : (2005 AIR SCW 589)."(Emphasis supplied)
36. Having carefully going through the record as already discussed above, this Court is of the considered view that the portion of the testimony of the PW4 that the appellant- convict demanded money from the PW4 and the PW4 gave the tainted currency notes smeared with chemicals of ₹ 6000/-which were wrapped in a white paper and after receiving the bribe amount, the appellant-convict unwrapped the currency notes and after counting the same kept the same in the drawer of his table in the office and the appellant-convict told the PW4, to come on the next day to collect the cheque or for that matter his testimony in his examination in chief to the effect that on being asked, the appellant- convict disclosed that he has kept the bribe amount in the drawer of his table and the said money was recovered from the drawer of the table and upon the fingers of the hands of the appellant-convict being washed in sodium carbonate solution, the colour of solution turned pink have not been challenged in any manner in his cross-examination as there is absolutely no cross-examination in this respect of the PW4, so the same have to be accepted as true. It is evident from the suggestion given to the PW 1 in para-97 that the money was recovered from the drawer in presence of the PW1 shows that it is the admitted case of the appellant-convict that money was recovered from his drawer. There was no cross-examination of the PW 1, so far as his testimony in his examination in chief to the effect that the key of the drawer of the table of the appellant-convict was recovered from the pocket of the appellant-convict and from the drawer ₹ 6000/-given by the PW4 was recovered and the numbers of the recovered notes tallied with the numbers of the tainted notes as mentioned in the pre-trap memorandum. Similarly there is no cross-examination of the PW 5 in respect of his testimony in the examination in chief to the effect that on search of the appellant-convict being conducted the key of the drawer of his table was found in his pocket and upon the opening of the drawer the money given as bribe was recovered nor there is any cross examination regarding his testimony to the effect that the numbers of the notes tallied with the numbers of the notes mentioned in the G.C. 33 Cr. Appeal (SJ) No.209 of 2020 notes memorandum and upon the fingers of the hands of the appellant- convict being washed in the sodium carbonate solution one by one, the colour of the solution turned pink. Similarly there is no cross- examination of the PW3 in respect of his testimony in his examination of chief to the effect that upon being asked the appellant-convict disclosed that he has kept the bribe money in the right side drawer of his table and the key was in his pocket and that the appellant-convict opened the drawer of his table with the key and from his drawer the bribe money of ₹ 6000/- consisting of 5 notes of ₹ 1000/- each and two notes of ₹ 500/- each were recovered and that the numbers of the notes tallied with the numbers of the notes mentioned in the G.C. notes memorandum and the upon the fingers of the hands of the appellant- convict being washed with sodium carbonate solution, the colour of solution turned pink. The testimonies of the complainant- P.W.4 or for that matter P.W.1, P.W.3, P.W.5 and P.W.6 have not been demolished in any manner even after lengthy cross examination of them. Nothing has been elicited in the cross-examination of any of the prosecution witnesses to discredit or shake their testimonies. Thus there is absolutely no cross-examination of the prosecution witnesses vis-à-vis their depositions in their examination in chief regarding the demand of the bribe amount by the appellant-convict, acceptance of the bribe amount by him as well as recovery of the bribe from him. In the absence of such cross-examination their testimonies are to be treated as true. As already discussed in detail in the foregoing paragraphs of this judgment the testimony of the PW4 is corroborated by the testimonies of the P.W.3-The Special Magistrate for the trap as well as P.W.5 and P.W.6 being the trap witnesses as also the testimony of the P.W.1 who is a trap witness as well as a witness of verification and there is no dispute regarding the sanction for prosecution which has been proved by the P.W.2 .
37. Thus, in the considered view of this court, the evidence in the record put forth by the prosecution, is sufficient to establish the following ingredients for the offences punishable under Section 7 as well as 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 34 Cr. Appeal (SJ) No.209 of 2020 1988 being
(i) Demand of Bribe.
(ii) Acceptance of Bribe.
(iii) Recovery of Bribe amount.
Accordingly the appellant-convict has rightly been convicted for the offences punishable under Section 7 as well as 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988.
38. Thus, this Court does not find any justifiable reason to interfere with the conviction of the appellant-convict for the offences punishable under Section 7 as well as 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 as made by the learned trial court in the impugned judgment.
39. So far as the sentence is concerned, it is pertinent to mention here that rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy to such corrupt official may send wrong signals. The Hon'ble Supreme Court of India, in the case of Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7 SCC 80 has observed thus in paragraph -30 :-
"Xxxxxxxxxxx It should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. In fact, reduction of the sentence would be adding a premium. The law does not so countenance and, rightly so, because corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile."
The appellant-convict has also not raised any grievance regarding the quantum of sentence in the appeal memo nor was anything in this respect agitated on behalf of the appellant-convict at the time of hearing of the appeal. Thus in this backdrop, considering the huge amount of bribe taken by the appellant-convict, the sentence also appears to be proper. Because of the facts of the case as well as law discussed above, this Court is of the considered view that the conviction and sentence of the appellant-convict is proper.
40. Accordingly, the impugned Judgment of Conviction and Order of Sentence dated 06.02.2020 passed by the Additional Sessions Judge-II-
35 Cr. Appeal (SJ) No.209 of 2020 cum-Special Judge, A.C.B., Dhanbad in Special (Vigilance) Case No.13 of 2012 (CNR No.JHDH01-006029-2012) is upheld and this appeal being without any merit is dismissed.
41. The appellant-convict - Anil Kumar is on bail. In view of dismissal of this appeal his bail is cancelled and he is directed to surrender before the learned court below within four weeks from the date of this judgment to serve out the sentence failing which the trial court is directed to take all coercive steps against him for undergoing the sentence.
42. Let a copy of this judgment be sent to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 7th day of June, 2021 AFR/ Sonu-Gunjan/-