Jharkhand High Court
(Against The Judgment Of Conviction And ... vs The State Of Jharkhand on 15 July, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr.App(SJ) No.1315 of 2003
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.1315 of 2003
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(Against the Judgment of conviction and Order of Sentence dated 29.08.2003 passed by learned Special Judge C.B.I.-Cum-4th Additional Sessions Judge, Dhanbad in R.C. Case No.2A/88 D)
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Jyotirmoy Ganguly son of late C.H. Ganguly resident of Bhowra Durga Mandir, Police station- Jorapokhar, district- Dhanbad.
.... .... .... Appellant
Versus
The State of Jharkhand .... .... .... Respondent
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For the Appellant : Mr. Pandey Neeraj Rai, Advocate
Mr. Onkar Nath Tiwary, Advocate
Ms. Shally Pandey, Advocate
For the C.B.I. : Mr. Prashant Pallav, A.S.G.I.
Mr. Navneet Sahay, (AC to A.S.G.I.)
Mr. Bajrang Kumar, (AC to A.S.G.I.)
Mr. Pradyumna Poddar, (AC to A.S.G.I.)
For the State : Mr. Jitendra Pandey, Addl.P.P.
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PRESENT
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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. The appellant-convict has preferred this appeal being aggrieved by the Judgment of conviction and Order of Sentence dated 29.08.2003 passed by learned Special Judge C.B.I.-Cum-4th Additional Sessions Judge, Dhanbad in R.C. Case No.2A/88 D whereby and where under the learned court below has held the appellant-convict guilty of having committed the offences punishable under Section 161 of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.500/- under Section 161 of the Indian Penal Code and to undergo rigorous imprisonment of two years and to pay a fine of Rs.500/- for the offence punishable under Section 5 (2) of the Prevention of Corruption Act, 1947 and in default of payment of fine to undergo further simple 1 Cr.App(SJ) No.1315 of 2003 imprisonment of two months each and it was ordered that both the sentences shall run concurrently.
3. The case of the prosecution in brief is that while the appellant- convict was posted as Accounts Assistant in the Bhowra area of B.C.C.L., he demanded bribe of Rs.50/- from the complainant (P.W.3) for payment of the bill amount of Rs.3,000/- of the complainant (P.W.3). An officer of C.B.I. namely Kamla Prasad 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 by the complainant. On the basis of the report submitted by the verifying officer, this case has been registered. The investigation of the case was entrusted to the P.W.8- Ajay Kant Sahay. A trap was successfully conducted. On 10.02.1988, the appellant-convict was caught red-handed after he accepted the bribe amount of Rs.50/- which was wrapped in a paper and kept by him in the drawer of his table in his office.
4. After completion of the investigation, charge-sheet has been submitted against the appellant-convict for having committed the offences punishable under Section 161 of the Indian Penal Code and Section 5 (2) read with 5 (1) (d) of the Prevention of Corruption Act, 1947. Charge for the offence punishable under Section 161 of the Indian Penal Code and Section 5 (2) read with 5 (1) (d) of the Prevention of Corruption Act, 1947 were framed against the appellant-convict to which he pleaded not guilty and thus was put to trial. In support of its case, the prosecution altogether examined eight witnesses besides proving the documents which have been marked exhibits. However no witness was examined on behalf of the defence.
5. Out of the witnesses examined by the prosecution, P.W.3- Nand Kishore Singh is the complainant himself. He has stated about the complaint made by him against the appellant-convict regarding demand of bribe of Rs.50/- for payment of the bill of Rs.3,000/-. He has also narrated in detail about the pre-trap preparations and he also proved his signature on various documents which were marked exhibits. He further stated that he along with other members of the trap team reached Bhowra 2 Cr.App(SJ) No.1315 of 2003 Colliery at about 11:45 am. P.W.1- B. Lakra accompanied him. The P.W.3 went to the office of the appellant-convict and enquired about his bill. The appellant-convict enquired as to whether the P.W.3 has brought the money demanded by him at which the P.W.3 answered in affirmative and handed over Rs.50/- to the appellant-convict. The appellant-convict took the money and kept the same in his drawer of his office table. The P.W.1 gave the signal and the members of the trap team arrived at the spot and challenged the appellant-convict. The appellant-convict could not give any explanation and admitted taking the bribe money by his right hand. The P.W.3 informed the members of the trap team that the appellant- convict has kept the bribe amount in the drawer of the table. The bribe money was seized and Sodium Carbonate solution was prepared and the appellant-convict was asked to immerse his hand in the said solution after which the colour of the solution turned pink. Thereafter post-trap formalities were made. The P.W.3- Nand Kishore Singh identified his signatures upon the post-trap documents which were marked exhibit. In his cross-examination he has stated that the P.W.1 was behind him but when the P.W.3 entered inside the office of the appellant-convict, others remained outside. It is pertinent to mention here that there is absolutely no cross-examination of the P.W.3 in respect of his testimony made in his examination-in-chief regarding demand of bribe by the appellant-convict, the acceptance of bribe by the appellant-convict and the recovery of bribe money from the drawer of the table of the appellant-convict.
6. P.W.1- B. Lakra is one of the independent trap witnesses. He has stated that on 10.02.1988, he went to the C.B.I. Office. He has narrated the pre-trap preparations in detail and the members of the trap-team reaching the place of raid. The P.W.1 remained in the outside verandah. The other witness P.W.4 remained near the door. The complainant went inside the office. After 5-10 minutes, the P.W.3 signaled and upon receiving the said signal from the P.W.3, the P.W.1 and members of the raiding party entered the office of the appellant-convict and surrounded him. The P.W.8 challenged the appellant-convict that he has accepted bribe. The appellant-convict disclosed that he has kept the bribe money inside the 3 Cr.App(SJ) No.1315 of 2003 drawer. The P.W.8 opened the drawer. The note wrapped in the paper fell down on the floor. P.W.8 seized the notes. The P.W.1 has also stated about the post-trap procedure conducted after the trap. The P.W.1 in his cross- examination has stated that there was no lock in the drawer in which the appellant-convict kept the bribe money.
7. The P.W.2 is a formal witness. He has proved the sanction for prosecution of the appellant-convict.
8. P.W.4- Bindhyanchal Tiwari is another independent witness who has not supported the case of the prosecution and was declared hostile on the prayer of the prosecution by the trial court. Before being declared hostile, he has stated about the pre-trap preparations. He has stated about the members of the trap-team reaching the place of occurrence. The P.W.3 gave the signal that he has handed over the money. Accordingly the P.W.4 also gave the signal. The members of the trap team arrived. The P.W.4 came later on. He has further stated that the name of the person who took the money is Ganguly. The P.W.4 saw the members of the trap-team holding the hands of Ganguly.
9. P.W.5- Kailash Kumar Prasad has deposed that the establishment of the P.W.3 was given the job of repairing tyre and tubes of various vehicles of B.C.C.L and he has also proved relevant documents in this respect.
10. P.W.6- S. K. Mishra has stated about signing the bills of the establishment of the complainant.
11. P.W.7- L. M. Manjhi was also a member of the trap team. He has stated about the pre-trap preparations in detail. They reached the Bhowra area office at 11:45 am. The P.W.3 and shadow witness went near the appellant-convict in accounts office. The P.W.7 was standing outside. The P.W.4 gave the signal. Upon receiving the signal, the P.W.7 and others reached near the appellant-convict and the P.W.3 disclosed that the appellant-convict has kept money in his drawer of his office table after accepting the same. The drawer of the table was opened. A note of Rs.50/- wrapped in paper was recovered. He has also stated in detail about the post-trap preparation. In his cross-examination he has stated that he does not remember where other members of the trap team were standing at the 4 Cr.App(SJ) No.1315 of 2003 time of trap.
12. P.W.8- Ajay Kant Sahay is the I.O. of the case. He is also a member of the trap team and he has also stated in detail about the pre-trap preparation. Further, he has stated that on 10.02.1988 they took their position at the place of trap at Bhowra area. The P.W.3 was sent to the room where the appellant-convict was sitting. The P.W.8 and others were standing near the door. After sometime they saw that the P.W.1 brought out the money from his pocket and the appellant-convict received the same with his right hand and the appellant-convict kept the same in the right side table of his drawer. The P.W.8 and others reached near the appellant-convict. The P.W.3 disclosed about handing over the money. The P.W.8 opened the drawer. The currency note wrapped in the paper fell on the floor. The P.W.8 lifted the same and seized the same. He has also stated about the right hand of the appellant-convict being washed with Sodium Carbonate solution. Upon the right hand of the appellant- convict being washed with Sodium Carbonate solution, the colour of the solution turned pink. He has also proved the material exhibits and the documents which have been marked exhibit. In his cross-examination, the P.W.8 has stated that in the memorandum of recovery he has not specifically mentioned that the appellant-convict was visible from the place where he was standing.
13. 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. In his statement recorded under Section 313 Cr.P.C., the appellant-convict denied all the material questions put to him regarding the circumstances appearing in evidence against him.
14. The learned trial court, after considering the evidence in the record, came to a finding that the evidence in the record is sufficient to establish the fact that the appellant-convict demanded bribe amount, accepted the same and the bribe money was recovered and also held that the appellant- convict being a public servant has made a financial gain of Rs.50/- by taking bribe by utilizing his post as a public servant. Hence, it convicted 5 Cr.App(SJ) No.1315 of 2003 and sentenced the appellant-convict as already indicated above.
15. Mr. Pandey Neeraj Rai- learned counsel appearing for the appellant-convict submits that the learned court below failed to appreciate the evidence in the record in its proper perspective and submitted that the learned trial court 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 and also that the evidence regarding recovery of bribe money is full of contradictions which creates a doubt regarding the entire case. It is next submitted by Mr. Rai that in the memorandum of recovery which has marked Ext.10 though it has been specifically mentioned that the recovered tainted money duly covered by the tainted plain paper in the same condition in which it was given to the appellant-convict by the complainant which was kept in the envelope and was signed by the witnesses but when the same was opened in the court, as per the deposition of the P.W.3, it has not been mentioned in his deposition that along with the tainted note the tainted plain paper was also found in the sealed envelope. It is next submitted that the evidence regarding the paper in which currency note was wrapped and was handed over to the appellant-convict by the complainant was smeared with phenolphthalein powder is also not clear as in his deposition the P.W.3- the complainant has not stated about the paper in which the currency note was wrapped was smeared with phenolphthalein powder. Mr Rai relies upon the judgment of Hon'ble Supreme Court of India in the case of N. Vijayakumar Vs. State of Tamil Nadu reported in (2021) 3 SCC 687 which is the judgment of an appeal against the acquittal where the Hon'ble Supreme Court of India has held as under in para-24 to 26:-
"24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the 6 Cr.App(SJ) No.1315 of 2003 evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m.
25. There are material contradictions in the deposition of PW 2 and it is clear from his deposition that he has developed animosity against the appellant and he himself has stated in the cross-examination that he was insulted earlier as he belonged to Scheduled Caste. Further there is no answer from PW 11 to conduct the phenolphthalein test after about an hour from handing over tainted notes and cellphone. The trial court has disbelieved PWs 2, 3 and 5 by recording several valid and cogent reasons, but the High Court, without appreciating evidence in proper perspective, has reversed the view taken by the trial court. Further, the High Court also has not recorded any finding whether the view taken by the trial court is a "possible view" or not, having regard to the evidence on record. Though the High Court was of the view that PWs 2, 3 and 5 can be believed, unless it is held that the view taken by the trial court disbelieving the witnesses is not a possible view, the High Court ought not have interfered with the acquittal recorded by the trial court. In view of the material contradictions, the prosecution has not proved the case beyond reasonable doubt to convict the appellant.
26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court." (Emphasis supplied) and submits that as in this case the alleged shadow witnesses have not stated about having seen the demand of bribe by the appellant-convict hence, the learned court below ought to have held that the demand of bribe by the appellant-convict is insufficient to establish the essential 7 Cr.App(SJ) No.1315 of 2003 ingredient of demand of bribe beyond the reasonable doubt. It is further submitted by Mr Rai that the non-examination of the verifying officer named Mr Kamla Prasad has prejudiced the appellant convict.
16. Mr. Rai next relies upon the judgment of 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:-
"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) Mr. Rai made a spirited argument that like in the case of Panalal Damodar Rathi v. State of Maharashtra (supra) in this case also there is no corroboration of the testimony of the P.W.3-complainant regarding the demand for money by the appellant-convict therefore on the same analogy, in this case also the testimony of the P.W.3 regarding demand of bribe money by the appellant-convict having not been corroborated, the evidence of P.W.3 regarding the demand of bribe money by the appellant- convict ought not to be relied upon.
17. Mr. Rai draws the attention of this Court towards the supplementary affidavit dated 14.07.2022 filed on behalf of the appellant- convict as well as the petition of I.A. No.4366 of 2022 which was filed with a prayer for suspension of sentence of the appellant-convict that as it has been mentioned in the said I.A. and which is supported by connected diagnosis report enclosed with the said supplementary affidavit dated 14.07.2022 that the appellant-convict is more than 73 years of age and the 8 Cr.App(SJ) No.1315 of 2003 left side of his body is suffering from paralysis. Besides, he is suffering from problem of asthma and epilepsy and eye problems also. Mr. Rai next submits that as per section 5 (2) proviso of Prevention of Corruption Act, 1947 which reads as under:-
5. Criminal misconduct in discharge of official duty.- [(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine:
Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. (Emphasis supplied) and submits that in case the judgment of conviction of the appellant is upheld by this Court, a lenient view be taken in the matter of sentence and the substantive sentence of the appellant-convict be reduced keeping in view the special circumstances of his precarious health condition, old age and the rigors of the criminal trial faced by the appellant-convict for over 3 decades. In this respect, learned counsel for the appellant-convict relies upon the judgment of Hon'ble Supreme Court of India in the case of D. Sriniviasan Vs. Delhi Special Police Establishment etc. reported in AIR 1993 SC 296 para-6 of which reads as under:-
"6. The occurrence is said to have taken place in the year 1969. Now nearly twenty three years have elapsed. All the appellants must have become very old and, the learned counsel says that some of them may have died but not able to give the names as such but he is definite that A- 1 has died. The appellants have undergone the ordeal of trial for a number of years and convictions have been hanging on their heads for all these years and they have also lost their jobs and they have large family dependent upon them. In such circumstances the Court can award lesser sentence than one year which is the maximum sentence under S. 5(2) of the Prevention of Corruption Act. The Section as it stood in the year 1969 lays down that the Court for any special reason recorded can impose a sentence of imprisonment of less than one year. The circumstances pointed out above do warrant that a lesser sentence should be imposed. From the records we find that the appellants were in Jail for some time and in these circumstances we confirm their convictions and reduce the sentence under each charge to the period already undergone.
The sentences of fine in respect of A-1 in Criminal Appeal No. 748/ 80 D. Srinivasan, A-4 in Criminal Appeal No. 617/ 80 Sandanaswamy and A-7 in Criminal Appeal No. 592/80 A.R.M. Perumal Chettiar are confirmed with default clause."
9 Cr.App(SJ) No.1315 of 200318. It is lastly submitted by Mr. Rai that the evidence in the record is insufficient to establish the offence punishable either under Section 161 of the Indian Penal Code or Section 5 (2) read with 5 (1) (d) of the Prevention Act, 1947 against the appellant-convict. Hence, it is submitted that the appellant-convict be acquitted by at least giving him the benefit of doubt by setting aside the impugned judgment of conviction and order of sentence.
19. Learned counsel for the respondent on the other hand vehemently defended the impugned judgment 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.3-the complainant has undisputedly and categorically stated in his deposition that upon demand of the money by the appellant-convict he handed over the bribe money wrapped in a tainted paper to the appellant- convict and after receiving the bribe money the appellant-convict kept the same in the drawer of his office table and as the P.W.3 has stated about all the three essential ingredients that is demand of bribe by the appellant- convict, acceptance of bribe money by him and recovery of by money from the drawer of his table in the office, to establish the charges punishable under sections 161 of the Indian Penal Code and Section 5 (2) read with 5 (1) (d) of the Prevention Act, 1947 hence his not mentioning some non-essential parts of the prosecution case to bring home the charge for the offence punishable under Section 161 of the Indian Penal Code and Section 5 (2) read with 5 (1) (d) of the Prevention Act, 1947 like the appellant-convict told him to come in the afternoon and thereafter he gave the money as mentioned by some other witnesses, is not a relevant factor to discredit the testimony of P.W.3. It is next submitted that the portion of the testimonies of the P.W.1, 3 and 8 regarding the said 3 essential ingredients to bring home the said charges faced by the appellant-convict in this plan having remained unchallenged in their cross-examination the same are to be believed as true. It is further submitted the testimony of the prosecution witnesses that upon being challenged the appellant-convict admitted having taken the bribe, has not been specifically challenged in 10 Cr.App(SJ) No.1315 of 2003 their respective cross-examination. It is then submitted that the evidence in the record are sufficient to establish the essential ingredient of recovery of bribe from the appellant-convict as the oral testimony in respect of which is corroborated from the fact that upon the hands of the appellant- convict being washed with the Sodium Carbonate solution, the colour of the solution turned pink. It is next submitted by the learned counsel for the respondent that though the P.W.3 has not stated in his description regarding the pre-trap memorandum that the paper with which the currency note was wrapped was also smeared with phenolphthalein powder and that being a non-essential part of the evidence so this omission though later on in his deposition he has stated about the said paper being also smeared with phenolphthalein powder is of no consequence so far as the outcome of the trial is concerned as is certainly not a sufficient ground to discredit or disbelieve the testimony of the P.W.3. It is also submitted by the learned counsel for the respondent that the evidence put forth by the prosecution witnesses through the P.W.1, 3, 7 and 8 besides the Ext. 10 upon which the accused also relied upon and other documents which have been marked exhibit has proved the case of the prosecution beyond reasonable doubt. Hence, it is submitted that this appeal, being without any merit, be dismissed and as the conviction of the sentence of the appellant-convict is proper, hence, the same be confirmed.
20. Having heard the rival submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that the P.W.3 has categorically stated in his deposition that when he entered inside the office of the appellant-convict, other persons were outside the office of the appellant-convict, though up to the office of the appellant- convict, the P.W.1 followed him. So this is one of such cases, where the complainant-P.W.3 was the sole witness of the demand of bribe by the appellant-convict. 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 each of the trap 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 11 Cr.App(SJ) No.1315 of 2003 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 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- P.W.4 has turned hostile and has not supported the case of the prosecution but merely because a witness has been gained over or has become hostile for some other reason; the trustworthy and reliable testimony of other witnesses cannot be thrown to woods nor the same will be fatal for the case of the prosecution.
21. So far as the contention of the appellant-convict regarding the testimony of the PW3 be treated as not reliable as he being the complainant was having a grouse against the appellant-convict is concerned, it is pertinent to mention here that in the case of State of U.P. vs. Zakaullah (supra) 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 consequences that no bribe giver can get away from such a stigma in any graft case and went on to say that the very fact that the complainant lodged 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 the case of State of U.P. vs. Zakaullah (supra) it was observed that every 12 Cr.App(SJ) No.1315 of 2003 citizen of India must be presumed to be an independent person until it is proved that he was dependent on police or other officials for any purpose whatsoever. So as the contention of the learned counsel for the appellant- convict that there is a discrepancy in the evidence regarding the sodium carbonate solution with which the hands of the appellant-convict were washed having not been conducted properly, it is pertinent to mention here that the Hon'ble Supreme Court of India in paragraph No.11 and 12 of the State of U.P. vs. Zakaullah (supra) relying upon the judgment in the case of Prakash Chand vs. State (Delhi Administration) (1979) 3 SCC 90 and Hazari Lal vs. State (Delhi Administration) (supra) held that the 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. So far as the contention of the appellant that at the time of the bottles being opened in which the phenolphthalein solution was kept sealed about a decade before the same being opened in the court were not containing any solution and on that ground the case of the prosecution is to be believed is concerned, 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 it is not the case of the defence that the hand of the appellant-convict was not washed with the sodium carbonate solution. At least there is no such question put to any of the witnesses who have stated about the hands of the appellant- convict being washed with Sodium Carbonate solution, in their respective 13 Cr.App(SJ) No.1315 of 2003 cross-examination. It is needless to mention here that cross-examination is one of the more by which you defence builts of his defence. So, this could not be a reason to discredit the credibility of the prosecution witnesses or to created out about the case of the prosecution.
22. So far as the contention of the appellant-convict that the testimony of the P.W.3 regarding demand of bribe money by the appellant-convict, the evidence of the P.W.3 regarding the demand of bribe money by the appellant-convict not to be relied upon is concerned, the Hon'ble Supreme Court of India also reiterated the settled principle that where upon a bribe been demanded from a man; 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; in the case of M.O. Shamsudhin vs. 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)
23. The Hon'ble Supreme Court of India reiterated the settled principle of law that 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 14 Cr.App(SJ) No.1315 of 2003 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 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)
24. 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 Vs. 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 15 Cr.App(SJ) No.1315 of 2003 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 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 person received the money for the first accused and the first accused was before the court as appellant whereas in this case there is only one accused and he is the person who has directly received the bribe amount from the complainant-P.W.3 and the P.W.3 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 P.W.3 and the said bribe amount has been recovered from the drawer of the table of the appellant-convict immediately after accepting of the bribe and keeping the same in the drawer by 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 judgments 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 16 Cr.App(SJ) No.1315 of 2003 the appellant-convict.
25. So far as the contention of the appellant regarding non-examination of Kamla Prasad is concerned, it is a settled principle of law that the 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. The Hon'ble Supreme Court of India in the case of Rajesh Singh & Others v. State of Uttar Pradesh, (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, civilized 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 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) moreover in this case, though the learned counsel for the appellant submitted that the appellant-convict was produced by non-examination of Mr Kamla Prasad as a witness in this case but he failed to substantiate as to in what manner the appellant-convict has been prejudiced.
26. The 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 the 17 Cr.App(SJ) No.1315 of 2003 P.W.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 P.W.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 a 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 Andhra Pradesh Vs. 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) read 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 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 18 Cr.App(SJ) No.1315 of 2003 not discharged by the accused." (Emphasis supplied)
27. To the same effect is the judgment of Hon'ble Supreme Court of India in the case of Tarsem Lal Vs. 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, the 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 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)
28. 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, by observing as under in paragraph 11 :
"Xxxxx Since it is established that the accused was possessing 19 Cr.App(SJ) No.1315 of 2003 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."
29. This court is conscious of the fact that the said judgment in the case of State of Gujarat v. Navinbhai Chandrakant Joshi (supra) was later on modified by the Hon'ble Supreme Court of India reported in the case of State of Gujarat v. Navinbhai Chandrakant Joshi, (2019) 13 SCC 361 by observing as under in paragraphs-1 and 2:
"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.
30. So far as the contention of the appellant-convict regarding the independent witnesses being the P.W.4 having not supported case of the prosecution and there is discrepancy in the testimonies of the witnesses examined in this case on some material aspects and the testimony of P.W.8 and P.W.7 ought not be well and upon, there being police officers have exaggerated the case of the prosecution 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 20 Cr.App(SJ) No.1315 of 2003 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 ."
31. 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; where though the occurrence took place on 10.02.1988 and the P.W.3 was examined in the year 1993 whereas the P.W.8 was examined in the year 2002; such witnesses cannot recollect and narrate the entire conversation with the photographic memory notwithstanding the 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 21 Cr.App(SJ) No.1315 of 2003 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)
32. 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 it 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 22 Cr.App(SJ) No.1315 of 2003 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 2005 SC 1096) : (2005 AIR SCW 589)." (Emphasis supplied)
33. So far as the contention of the appellant-convict regarding the judgment of Hon'ble Supreme Court of India in the case of N. Vijayakumar Vs. State of Tamil Nadu (supra) is concerned, the ratio of the said case is not applicable to this case principally because of 2 reasons. The first reason is that the said judgment having been passed in an appeal against an accused to the High Court the principles were different than the principles in the case with the trial court has convicted the appellant convict. The 2nd reason is that in that case as categorically stated in the paragraphs of the said judgment quoted in the foregoing paragraphs of this judgment that the appellant-accused of the case was not present in his office when the recording was made whereas in the present case the recovery of the bribe money was made immediately after the appellant- convict was trapped while demanding and accepting the bribe money of ₹ 50/-.
34. Having carefully gone through the record as already discussed 23 Cr.App(SJ) No.1315 of 2003 above, this Court is of the considered view that the portion of the testimony of the P.W.3 that the appellant-convict demanded money from the P.W.3 and the P.W.3 gave the tainted currency note of Rs.50/- which was wrapped in a paper and after receiving the bribe amount, the appellant-convict kept the same in the drawer of his table in his office and told that the bill of the P.W.3 in respect of which the bribe was accepted is with the appellant-convict and the money was recovered from the drawer of the table of the appellant-convict and upon the hands of the appellant- convict being washed in Sodium Carbonate solution, the colour of solution turned pink; has not been challenged in any manner in his cross- examination as there is absolutely no cross-examination in this respect of the P.W.3, so the same has to be accepted as true. There is no cross- examination of the P.W.1 so far as his testimony in his examination-in- chief to the effect that tainted money was recovered from the drawer of the appellant-convict. Similarly, there is no cross-examination in respect of his testimony in his examination-in-chief to the effect that he saw the P.W.3 handing over the bribe money to the appellant-convict and the appellant-convict received the same with his right hand and the number of the recovered note from the drawer of the table of the appellant-convict was as the same as mentioned in the pre-trap memorandum and upon the right hand of the appellant-convict being washed with the Sodium Carbonate solution, the colour of the solution turned pink. The testimonies of P.W.3 or for that matter the P.W.1 and P.W.8 has not been demolished in any manner even after lengthy cross-examination of them. Nothing has been elicited in their cross-examination to discredit or shake their testimonies. Hence, those portions of their testimonies are to be treated as true. The testimony of P.W.3 is corroborated by the testimony of P.W.1 and 8 as well as the documents including the Ext. 10, the memorandum of recovery as well as other documents which have been marked exhibits.
35. 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 161 of the Indian 24 Cr.App(SJ) No.1315 of 2003 Penal Code as it stood in the statute books then as well as under Section 5 (1) (d) read with 5 (2) of the Prevention of Corruption Act, 1947 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 161 of the Indian Penal Code as well as under Section 5 (1) (d) read with 5 (2) of the Prevention of Corruption Act, 1947 by the trial court.
36. Thus, this Court does not find any justifiable reason to interfere with the conviction of the appellant-convict for the offences punishable under Section 161 of the Indian Penal Code as well as under Section 5 (1)
(d) read with 5 (2) of the Prevention of Corruption Act, 1947 as made by the learned trial court in the impugned judgment.
37. Accordingly, the conviction of the appellant-convict as made by the learned Special Judge C.B.I.-Cum-4th Additional Sessions Judge, Dhanbad in R.C. Case No.2A/88 D is confirmed.
38. So far as the sentence of the appellant-convict is concerned as the occurrence took place way back in 10.02.1988 and the appellant has undergone the trial for number of years and now also he is said to be suffering from paralysis of left side of his body besides other problems as already mentioned above and it is stated that the appellant-convict was in custody since 11.02.1988 to 10.03.1988 during the pendency of the trial and he was arrested on 17.05.2022 and he was remanded on 18.05.2022 and till date he is in custody and keeping in view the law enunciated by the Hon'ble Supreme Court of India in the case of Makhan Singh & Another Vs. State of Punjab reported in AIR 1994 SC 266 as well as taking all the circumstances into consideration, this Court reduces the substantive sentence under each count for the offence punishable under Section 161 of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act, 1947 to three month's rigorous imprisonment. The sentence of fine along with default clauses is, however confirmed. The sentences are directed to run concurrently and the period undergone during the 25 Cr.App(SJ) No.1315 of 2003 pendency of the trial is to be set-off.
39. This appeal is disposed of by modification in sentence only.
40. In view of the disposal of this appeal, interlocutory application (s), if any, stand disposed of.
41. Let a copy of this judgment be sent back to the learned court below along with the lower court records forthwith.
(Anil Kumar Choudhary, J.) In the High Court of Jharkhand, Ranchi Dated the 15th of July, 2022 AFR/ Animesh 26