Patna High Court
State Of Bihar vs Dr.Jwala Pd. Pandey on 4 August, 2010
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta
IN THE HIGH COURT OF JUDICATURE AT PATNA
G.APP. (SJ) No. 41 of 1989
Against the judgment of acquittal dated 29th June, 1989, passed by
Shri N.C. Lala, Special Judge (Vigilance), Patna in Spl. Case No.
32/86.
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The State of Bihar .............................. APPELLANT
VS.
Dr. Jwala Prasad Pandey, son of Late Sadhu Saran Pandey,
Village- Imadpur Karani P.S. Bikramganj, District-Rohtas, at
present- Assistant Key Village Officer, Veterinary Hospital,
Lakhisarai Block, District-Munger - Accused... RESPONDENT
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For the appellant:- M/S. Rakesh Kumar, I/C Spl. PP,
Vigilance & Prabhu Narayan Sharma, JC
to I/C Spl. P.P./Vigilance.
For the Respondent: M/S Devendra Prasad Sinha, Sr. Advocate
and Sri Satyendra Kumar Sinha,Advocate
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PRESENT
THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA
R.K.Datta, J.This Criminal Appeal against acquittal has been filed by the State of Bihar against the judgment dated 29th June, 1989 passed in Special Case No. 32 of 1986 arising out of Vigilance P.S. Case No. 11/1986 by the Special Judge, Vigilance, Patna by which he has held the accused not guilty of the charges under Section 161 of the Indian Penal Code and Section 5(2) read with 2 Section 5(1) (d) of the Prevention of Corruption Act, 1947 and accordingly, acquitted the accused.
2. The prosecution case is that on 19.3.1986, PW 9, Rabindra Kumar Singh, submitted a written complaint stating that his brother's name is in the Below Poverty Line List of the Block Office, Lakhisarai. It was alleged that the accused, Dr. Jwala Prasad Pandey, Block Animal Husbandry Officer said that until he gives Rs. 400/- as bribe, his application will not be sent to the Bank. It is further alleged that he stated that, in that money, there was share of three persons, namely, himself, the Block Development Officer and the Nazir. Since the complainant did not want to give the bribe he made the complaint.
3. P.W.4, Jahir Ahmad, the Inspector of Vigilance was deputed to verify the complaint and in his report dated 24.3.1986 he stated that he went to Lakhisarai on 21.3.1986, met the complainant and from there they went to the Block Office and thereafter to his residence which was nearby. He learnt that he had gone out; since the accused did not return till evening, therefore, on 22.3.1986 in the morning at 8.00 A.M. he along with the complainant went and sat in Sheo Bharti Hotel and the complainant's brother Shri Ram Sagar Singh went to call the accused who came with him after some time. Then he repeated his 3 demand and on entreating for decreasing the amount by the complainant, he stated that he has to give Rs. 200/- out of the bribe amount to the Block Development Officer and Rs. 50/- to the Nazir and therefore, there was no question of decreasing the same. On his demand to pay something immediately, the complainant gave him two notes of Rs. 50/- each promising to arrange the rest and pay to him. Thereafter the FIR was registered and a memorandum of 3 G.C. notes of Rs. 100/- given by the complainant was prepared and the notes were returned to him to be given to the accused on his demanding the bribe. On 2.4.1986 the raiding party was constituted under the leadership of Brijendra Kumar, Deputy Superintendent of Police, PW 6 who was also made Investigating Officer of the case and on 2.4.1986 the raiding party went from Patna to Lakhisarai. After waiting for some time when the accused entered his chamber at 3.30 P.M. the complainant, PW 9 went to his chamber and allegedly on his demand handed him over the said 3 G.C. notes of Rs. 100/- which the accused took and kept under a Register on the second rack of his whatnot on the right side of his chair. On signal from the verifier, the other members of the raiding party came into the chamber and in the presence of two independent witnesses the search was made on the accused upon which nothing was 4 recovered from him but subsequently, on further search, the 3 G.C. notes of Rs. 100/- were recovered from under the Register on the second rack of the whatnot. After the investigation the Vigilance police submitted charge sheet against the respondent and he was put on trial.
4. The defence of the accused during the trial was that no application was pending with him with respect to the brother of the complainant nor he ever demanded or accepted any amount from the complainant and the case was one of plantation at the behest of one Ramdeo Singh, contractor, who was against the Block Development Officer and since the accused used to take the side of the Block Development Officer, hence the complainant under the influence of said Ramdeo Singh, contractor, falsely implicated him.
5. In the course of trial, the prosecution examined 9 witnesses among whom, PW 1, Maheshwar Prasad Mishra is the Special Magistrate, Vigilance who had accompanied the raiding party and on the recovery of the G.C. notes had signed over them. P.W.5 Sarjug Prasad and P.W.8 Shekhar are the two seizure list witnesses among whom PW-8 has been declared hostile. P.W.9 is the complainant, Rabindra Kumar Singh, P.W.4, Inspector, Vigilance, Jahir Ahmad who had given the verification report and 5 also accompanied the complainant to the chamber of the accused at the time of the giving of the bribe. P.W.6 Brijendra Kumar, Deputy Superintendent of Police, Vigilance was the leader of the raiding party as well as the Investigating Officer of the case. PW- 2 Ram Nath Prasad and P.W.-7 Lal Bahadur Singh are both formal witnesses who had proved respectively the sanction order and the case diary, while P.W.-3 Sarda Nand Singh, Inspector, Vigilance has been tendered for cross-examination.
6. In the course of trial the prosecution exhibited the complaint dated 19.3.1986 as Ext-8; Ext. 3 is the verification report dated 24.3.1986, Ext. 5 is the formal FIR; Ext. 4 is the memorandum of G.C. notes, Ext. 6 is the seizure list and Ext. 2 is the sanction order for prosecution.
7. The defence has also examined two witnesses, namely, Ram Sagar Singh, the cousin of the complainant as D.W.1 and Ghanshyam Prasad Singh, Branch Manager, Kshetriya Gramin Bank, Lakhisarai as DW- 2. It has also exhibited the BPL list as Ext.A, a duplicate loan application dated 11.10.1985 of Jai Prakash Singh, brother of the complainant as Ext.B and the list of applications sent by the Block Office to the Kshetriya Gramin Bank through letter no. 77 dated 28.1.1986 as Ext.C. The pre- inspection report, with respect to application of Jai Prakash Singh, 6 of the Field Supervisor is Ext. D. Annexure-A document as sent by the Bank is Ext. E. Annexure-B document relating to subsidy by DRDA is Ext.F; the loan documents of Jai Prakash Singh is Ext. G/2 and the purchase schedule dated 31.3.1986 with respect to loan granted to Jai Prakash Singh is Ext. H.
8. On a consideration of the entire materials on the record the learned Special Judge, Vigilance came to the conclusion that the application of Jai Prakash Singh, brother of the complainant, was forwarded before the filing of the complaint and Ram Sagar Singh, cousin of the complainant, received his loan in 1983 and therefore no question arises for the complainant to approach the accused and give bribe either in official capacity or otherwise. He also held that the prosecution evidence does not inspire confidence that the accused actually made any demand of bribe or accepted Rs. 100/- on 22.3.1986. He further held that the prosecution has been able to prove that Rs. 300/- was recovered from under a Guard file which was kept by the side of the chair of the accused but he further came to the conclusion that in the absence of the use of phenolphthalein power on the G.C. notes, it cannot be said that the accused had actually handled the said G.C. notes and as such in the recovery of the notes from below the guard file kept on the rack in the chamber of the accused, the 7 possibility of plantation cannot be ruled out and therefore held that the prosecution has not been able to prove by reliable evidence that actually the accused demanded and received Rs. 300/- as bribe from the complainant on 2.4.1986. For all the aforesaid reasons, he held the accused not guilty of the charges and acquitted him.
9. Learned Special Public Prosecutor for the Vigilance submits that in view of the evidence of the complainant, P.W. 9 and the verifier, P.W.4, it is clear that a demand was made by the respondent which was duly verified and thereafter the bribe of Rs. 300/- was taken and recovery of said Rs. 300/- was made on search. It is submitted that the same are the only requisites for coming to a conclusion that an accused had committed the offence under Section 161 IPC (as it then was) and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. It is urged by learned counsel that both the P.Ws. have categorically averred the said facts and, as a matter of fact, on the evidence of P.W.4, the Inspector, Jahir Ahmad, alone the prosecution was able to prove the case and the court below ought to have so held. In this regard, he relies upon a decision of the Supreme Court in the case of Gian Singh Vs. State of Punjab: AIR 1974 SC 1024, in relevant part of para-5 of which it has been held as follows: 8
"5. - ........ ............... ............ We see no reason to disbelieve the evidence of these two constables, and if their testimony is true, the defence version has been disproved. Counsel for the appellant commented on the non- examination of Buta Singh and his mother, Dhan Kaur, and feebly suggested that the evidence of the prosecution witnesses was discrepant. He also pleaded that police witnesses in trap cases are suspect, that person who have been prosecution witnesses more than once are stock witnesses, and that a plausible explanation had been put forward by the accused, the cumulative effect of these factors being that the accused is entitled to acquittal. In a recent case to which one of us was party (Som Prakash V. State of Delhi, Cri Appeal No. 143 of 1970, D/- 25.1.1974 = (reported in AIR 1974 SC 989) this Court has held that police officials cannot be discredited in a trap case merely because they are police officials, nor can other witnesses be rejected because on some other occasion they have been witnesses for the prosecution in the past. Basically, the Court has to view the evidence in the light of the probabilities and the intrinsic credibility of those who testify. The serious hurdle in the way of the appellant here is that the court which has seen the witnesses, and the appellate Court which has reviewed the matter over again, have found no good reason to discard the prosecution version. We are, therefore, satisfied that the appellant has failed in his endeavour to prove that the charge leveled against him has not been 9 satisfactorily made out. We dismiss the appeal, and if the accused is on bail, he will surrender in consequence. "
10. Learned counsel also submits that earlier also before the PW 4 the accused had accepted two notes of rupees fifty from the complainant PW 9 and thus the case of the prosecution is doubly fortified.
11. Learned counsel also contends that the question of motive is irrelevant when the prosecution succeeds in establishing the demand and acceptance and the same would be sufficient to convict the accused and for the said reason alone the impugned judgment is liable to be set aside.
12. Learned counsel also relies upon Section 4 of the Prevention of Corruption Act, 1947 to argue that once the prosecution has proved the case of demand and acceptance, the onus was clearly upon the accused to prove that the amount received was not illegal gratification but neither the accused led any evidence on the point nor he took any plea as to why he had received the said amounts. In support of the same learned counsel relies upon a decision of the Supreme Court in the case of Chaturdas Bhagwandas Patel Vs. The state of Gujarat: AIR 1976 SC 1497, paras 22 and 23 of which are quoted below:- 10
"22.- Indeed, when a public servant, being a police officer, is charged under Section 161, Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour (see Bhanuprasad Hariprasad V. State of Gujarat (1969) 1 SCR 22 = (AIR 1968 SC 1323) and Shiv Raj Singh V. Delhi Administration, (1969) 1 SCR 183 = (AIR 1968 SC 1419).
23.- In the light of what has been said above, it is clear that the appellant has failed to rebut the presumption arising against him under Section 4(1) of the Prevention of Corruption Act. It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case.
Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in Section
161. The appellant had hopelessly failed to show such a balance of probability in his favour."
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He further relies upon a decision of the Apex Court in the case of Trilok Chand Jain Vs. Vs. State of Delhi: AIR 1977 SC 666, in para-8 of which it has been held as follows:
"8.- Section 4 (1) of the Prevention of Corruption Act reads:
"Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code ( or of an offence referred to in clause (a) or clause
(b) of sub-section (1) of Section 5 of this Act punishable under sub-section (2) thereof,) it is proved that an accused person has accepted or obtained, or has agreed to accept or attempt to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate."
From a reading of the above provision it is clear that its operation, in terms, is confined to a trial of an offence punishable under Section 161 or Section 165, Penal Code or under clause (a) or
(b) of Section 5(1) read with sub-section (2) of that section of the Act. If at such a trial, the prosecution proves that the accused has accepted or obtained gratification other than legal remuneration, the court has to presume 12 the existence of the further fact in support of the prosecution case, viz., that the gratification was accepted or obtained by the accused as a motive or reward such as mentioned in Section 161, Penal Code. The presumption however, is not absolute. It is rebuttable.
The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which Section 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under Section 101, Evidence Act rests on the prosecution. While the mere plausibility of an explanation given by the accused in his examination under Section 342, Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour; it is not necessary for him to establish his case beyond a reasonable doubt- see Mahesh Prasad Gupta V. State of Rajasthan, AIR 1974 SC 773."
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13. For the aforesaid reasons the learned Special P.P. submits that the judgment of the trial court ought to be set aside and the accused held guilty of the charges against him.
14. Learned counsel for the respondent, on the other hand, submits that the prosecution has hopelessly failed in proving the case against the respondent. It is contended that in the first place the prosecution was not even certain as to for whose loan application the respondent had allegedly demanded the bribe; the case of the prosecution from the very beginning as also in the examination in chief of P.W.9, the complainant was that the loan application was made for the loan of Ram Sagar Singh for purchase of cattle which was sent to the respondent for verification but subsequently in his cross-examination he changed the version stating that the loan application was with respect to both his brothers, Jai Prakash Singh and Ram Sagar Singh and that Ram Sagar Singh had sought loan for a shop and Jai Prakash Singh has also applied for loan for shop. It is further submitted that similarly the IO, PW 6 had initially stated in his cross- examination that the loan application was of Ram Sagar Singh but subsequently, he changed his version stating that it was for Jai Prakash Singh. It is thus urged by learned counsel that it is a serious infirmity as to the very genesis and purpose of the 14 application for loan and the person for whom it was sought. Thereafter, it is submitted by him that Ram Sagar Singh has himself deposed as DW 1 and stated that he had applied and got the loan for Shop in the year 1983 itself; and further that even with respect to Jai Prakash Singh, it has clearly come out in the evidence that his loan application was sent from the Block Office to Kshetriya Gramin Bank as early as on 28.1.1986 and thereafter no further action was required by the Block Office. This fact was known to the applicant and the complainant as well and thus on the date of complaint or verification, no application was pending in the Block Office to the knowledge of the complainant and his brothers. That being the situation, there was no occasion for the respondent to demand from the complainant any bribe for the purpose of forwarding the application from the Block Office to the Bank, which is the earliest stand taken in the complaint filed by him on 19.3.1986.
15. Learned counsel also submits that the complainant himself was not personally an applicant for the loan and only one of his brothers was stated to be the applicant, and even with respect to them he has failed to take an unequivocal stand as to which brother's case was to be forwarded and for what type of loan. It is urged that originally the stand was that the 15 loan application was for cattle, for which loan, for the purpose of verification, the respondent would come into the picture as the Block Animal Husbandry Officer. Ultimately since the stand was changed and the application was stated to be for the purpose of shop, there would be no occasion at all for the respondent to be involved in the process of grant of loan for the shop, he being the Animal Husbandry Officer only of the Block. It is thus submitted by learned counsel that the respondent would have absolutely no motive to make any demand of bribe as he had no authority to make any recommendation for the purpose of grant of loan for a shop.
16. Learned counsel also relies upon the fact that at the time when the search was made the eye witnesses, P.Ws. 4 and 5 did not tell the IO that the money taken by the accused was kept under the file of the Whatnot rather it has come in evidence that on finding nothing on the person of the accused, further search was made and the money was recovered from under the guard file lying on the rack of the Whatnot. This, according to learned counsel, further disproves the prosecution story of the accused having received the bribe and kept the same under the guard file and clearly shows that the present one is a case of plantation considering the fact that it has come in the evidence that the 16 respondent used to leave his chamber for work, the same was not locked and further there was a window also in the chamber, 2 ½ feet away from the Whatnot.
17. Learned counsel further relies upon the fact that admittedly no phenolphthalein power was used on the G.C. notes and thus it cannot be conclusively proved that the accused had ever handled the said 3 G.C. notes. Considering the over all fact situation of the motive for demand of bribe, not having been established and both the eye witnesses being interested witnesses, it is urged by learned counsel that it would not be safe to rely the conclusion that the accused had demanded and accepted the bribe in the absence of use of the phenolphthalein power on the G.C. notes.
18. In support of the aforesaid submission learned counsel for the respondent relies upon a decision of the Supreme Court in the case of Raghbir Singh Vs. State of Punjab: AIR 1976 SC 91, in the relevant parts of paragraphs 8 and 9 and in para-11 of which it has been observed as follows:-
"8.- The prosecution case also suffers from another serious infirmity and it is that it rests entirely on the evidence of witnesses who are either interested witnesses or police witnesses ........... ................... .........17
9.-.......... ...... ......... The evidence in regard to the search of the person of the appellant and the seizure of five marked currency notes from him is, in the contest of the other facts and circumstances of the case, not such as to inspire confidence and cannot be implicitly accepted.
11.- It is clear from the aforesaid discussion that the evidence led on behalf of the prosecution is not such as to inspire confidence in the mind of the court and we must say that we are not at all satisfied that the appellant either demanded bribe of Rs. 50/- from Jagdish Rai or that Jagdish Rai paid bribe of Rs. 50/- to the appellant by handing over five marked currency notes to him or that five marked currency notes of Rs. 10/- each were recovered from the pocket of the appellant when his person was searched by the raiding party. We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is sometimes of a dubious character for the purpose of deciding the fate of the public servant. It is but meet that science-oriented detection of crime is made a massive programme of police, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing 18 cruder can retard forensic efficiency than swearing by traditional oral evidence only, thereby discouraging liberal use of scientific research to prove guilt. Vide Som Prakash Vs. State of Delhi, (1974) 3 SCR 200 = (AIR 1974 SC 989 = 1974 Cri L.J. 784)."
19. I have considered the submissions of learned counsels for the parties and the materials on the record. It is evident from the complaint (Ext.8) filed by PW-9 on 19.3.1986 that he speaks of an application on behalf of his brother, and not brothers, who was in the BPL list. The name of the brother is not mentioned but subsequently when PW 4 went for verification on 22.3.1986, it is the complainant's cousin, Ram Sagar Singh who had accompanied the complainant and called the respondent. Again in the report dated 7.4.1986 submitted by PW-6, it is clearly mentioned that the demand of bribe was made with respect to loan application of Ram Sagar Singh. In the examination-in-chief of PW-9 also it was stated that the loan application was of Ram Sagar Singh. Only subsequently in the course of cross- examination the name of Jai Prakash Singh has cropped up as the brother whose application was pending in the Block Office. Again the clear stand in the examination-in-chief of the complainant was that the loan was for the purpose of cattle which was to be 19 accordingly verified by the respondent being the Block Animal Husbandry Officer and for the said purpose he had approached the respondent who thereafter made the demand of bribe. The examination-in-chief of the PW-9 took place on 16.1.1989. Subsequently, in the course of his cross-examination on 30.1.1989 he changed the version and started speaking about the loan application of both Jai Prakash Singh and Ram Sagar Singh and further changed the version that both of them had applied for loan for Shop and not for cattle. The said changing version of the complainant has been correctly noted and referred to by the learned trial court in its judgment. In any case, once the subsequent version is put forward that the loan was for the purpose of grocery shop then there would be no occasion for the respondent to be involved in recommending the said loan. The statements made by the PWs. like the complainant to the contrary has to be treated as false and worthless in the absence of any document brought on the record to show that even in the case of application for loan for shop of grocery the recommendation is required by the Animal Husbandry Officer as on the face of it the same appears to be highly improbable.
20. Similarly, the statement of the Investigating Officer, PW-6 who was also the leader of the raiding party does 20 not inspire any confidence. Firstly, he says that the application was of Ram Sagar Singh, but subsequently he changes his version and says that it was loan application of Jai Prakash Singh.
21. The evidence of DW-1 Ram Sagar Singh, the cousin of the complainant totally demolishes the case of the prosecution that any application for loan with respect to him was pending in the Block Office as he has clearly stated that he had applied and received the loan under the BPL scheme in the year 1983 itself. Nothing has been brought on the record by the prosecution to show that the said statement of DW 1 was false nor any document has been brought on the record by the prosecution to show that any application of Ram Sagar Singh was pending in the Block Office in the year 1986 in support of their stand.
22. Even if it is accepted that the application in question was of Jai Prakash Singh and not Ram Sagar Singh in that event also while no document has been brought on the record by the prosecution in support of the said stand, on the other hand, a large number of documents have been produced by the defence which go to show that on the basis of the procedure as stated by the said Bank Manager, and it has also been admitted by the IO, PW-6, the said application of Jai Prakash Singh was for purchase of articles for shop and had been sent by the Block 21 Office as early as on 28.1.1986 itself, which letter in fact was sent on behalf of the Block Development Officer by the respondent himself. Thereafter on no defect being found in the application, it was not required to be and never returned to the Block Office rather the further verification of the same was made by the Field Officer of the Bank who after interviewing the said Jai Prakash Singh on 28.2.1986 recommended the case for loan. Thereafter, the Bank forwarded the application for grant of subsidy to the DRDA which granted him subsidy on 6.3.1986, after which the loan agreement was executed by Jai Prakash Singh on 31.3.1986 and cheque was also issued by the Bank on the same date and articles were also purchased on the said date and handed over to him. It is thus unimpeachably clear from the said evidence brought on the record that even on the date when the complaint was filed on 19.3.1986, the matter of Jai Prakash Singh was not pending in the Block Office rather it had already been forwarded to the Bank and the Bank had already recommended much prior to that date to the knowledge of said Jai Prakash Singh and the DRDA much before had already granted subsidy to Jai Prakash Singh. Further, even before the raid was organized, Jai Prakash Singh had received the articles for the shop and nothing remained to be done. In the said circumstances, the entire case of the respondent 22 demanding money for forwarding the application of Jai Prakash Singh clearly appears to be false and cooked up one. The learned trial court in this regard has rightly come to the conclusion that t at the relevant time there was no occasion for the complainant to approach the accused for forwarding the application of the brother of the complainant and there was no motive for the accused either in discharge of his official duty or otherwise to demand or accept any bribe, as alleged. The court below has rightly concluded that the said circumstance weakens the foundation of the prosecution story and introduces the element of infirmity in it.
23. The submission of learned Spl. P.P., Vigilance that the motive would not be relevant in view of the clear evidence of demand and acceptance of bribe, can have no force in the facts and circumstances of the case. The clear story of the complainant from the very beginning was that the bribe was demanded by the respondent for forwarding the application of his brother and if the very basis of the complaint disappears then holding the respondent guilty of having demanded and accepted the bribe merely on the evidence of the complainant and the verifier would be unjustified. The absence of any substance in the complaint throws serious doubt on the entire case of the prosecution and the same could thereafter be accepted only on the basis of unimpeachable 23 evidence of demand and acceptance of bribe which is not the case herein. There are only two eye witnesses, the complainant PW-9 and the verifier, PW-4. It has been clearly held by the Apex Court in Raghbir Singh's case (supra) that if the prosecution case rests solely on the evidence of witnesses who are either interested or police witnesses then it ought to be held to be suffering from serious infirmity. So far as the seizure witnesses are concerned, apart from the fact that PW-8 has turned hostile, even assuming that the other seizure list witness P.W.5 is independent and reliable, then he has only witnessed the recovery of Rs. 300/- from under a guard file from a rack of the Whatnot and there is no recovery from the person of the respondent. Hence, at best, it is a case of recovery of Rs. 300/- from the office room of the respondent. In view of the evidence that the door of the office of the respondent used to remain open when he went out of the office room, as also the existence of a window not very far from the Whatnot, in such circumstances, the defence version that it is a case of plantation, cannot be easily brushed aside particularly keeping into consideration the complete failure of the prosecution to support the factum of the demand of bribe.
24. The failure of the Vigilance Department to apply phenolphthalein power to the G.C. notes also makes it difficult for 24 this Court to accept the prosecution version that the respondent had personally accepted the notes and handled them before keeping them under the guard file.
25. Thus on a consideration of the entire facts and circumstances and the evidence of the witnesses, it is difficult for this Court to reach a different conclusion than that recorded by the learned Special Judge in his judgment. Moreover, it is an appeal against acquittal. Once the court below, on a detailed examination of the evidence on the record, has come to the conclusion that the prosecution has failed to establish either on the point of motive or demand and acceptance of bribe, this Court would not come to a different conclusion unless the appellants could have satisfied this Court on cogent material that the findings recorded by the trial court are contrary to the weight of the evidence on record and perverse. In an appeal against acquittal the presumption of innocence of the accused is certainly not weakened and the burden upon the prosecution becomes much more onerous. In such a case the conviction cannot be recorded merely because this Court is of the view that another conclusion is possible on the basis of evidence. If the view taken by the trial court is reasonable then the judgment of acquittal ought not to be set aside. In the present matter, not only the appellant has failed to show that the case 25 against the respondent is proved beyond all reasonable doubt on the evidence on the record, it has hopelessly failed to show that any view could reasonably be taken in the matter contrary to what has been held by the court below.
26. Thus on a consideration of the entire facts and circumstances, this Court does not find any merit in the appeal. It is accordingly dismissed.
(Ramesh Kumar Datta,J.) Patna High Court Dated 5th August, 2010 NAFR/ S.Pandey.