Sidramappa S/O Shankreppa Anegundi vs The State Through on 15 September, 2020

[Cites 45, Cited by 0]

Karnataka High Court

Sidramappa S/O Shankreppa Anegundi vs The State Through on 15 September, 2020

Bench: Hanchate Sanjeevkumar

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

   DATED THIS THE 15TH DAY OF SEPTEMBER, 2020

                       PRESENT

  THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

          CRIMINAL APPEAL NO.3607/2012

BETWEEN:

Sidramappa
S/o Shankareppa Anegundi,
Age 56 years,
Occ. Gram Panchayat Secretary,
Kavalaga (B) Village,
Gulbarga District,
R/o Maharaja Layout,
Behind Sai Temple, Gulbarga.
                                            ... Appellant

(By Sri Chaitanyakumar C.M., Advocate)

AND

The State Through
Lokayukta Station Gulbarga,
Represented by S.P.P.,
High Court of Karnataka
Circuit Bench at Gulbarga.
                                          ... Respondent
(By Sri Subhash Mallapur, Spl.PP)

     This Appeal filed under Section 374 of the Criminal
Procedure Code praying to set aside judgment dated
                                2


06.07.2012 passed by the Principal Sessions Judge,
Gulbarga in Special Case No.140/2009 and to acquit the
appellant.

      This appeal coming on for further argument, this
day the Court delivered the following;


                         JUDGMENT

The above criminal appeal is filed challenging the legality, propriety and correctness of the judgment of conviction and order on sentence dated 06.07.2012 passed in Special Case No.140/2009 by the court of the Principal Sessions Judge, Gulbarga (hereinafter referred to as the 'Special Court' for brevity).

2. The brief facts of the case are as follows ;- The appellant/accused was working as Gram Panchayat Secretary of Kavalaga (B) Village. It is stated that the wife of the complainant (PW.2) was selected under Ashraya Scheme during the year 2006-07, for sanction of construction of house and as such the Government has sanctioned a sum of Rs.35,000/- to his wife and the said 3 amount was ordered to be disbursed in four installments and accordingly, two installments amount has been given to him and at the time of disbursing third installment amount, the appellant demanded Rs.500/- in order to give cheque in favour of wife of the complainant but being reluctant of giving the bribe amount, complainant had approached the Lokayukta Police and lodged complaint as per Ex.P.16 and accordingly a crime is registered against the appellant/accused in Crime No.4/2008 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short 'P.C.Act').

Further it is stated that upon receipt of the complaint the respondent/police have led trap and accordingly prepared Demonstration Panchanama by following the procedures and then the appellant/accused was successfully trapped while caught hold read-handedly and then Trap Panchanama was recorded after following the procedure and then after obtaining records pertaining 4 to the appellant/accused which are towards the work pending and service particulars of the appellant/appellant that at the relevant point of time, he was Gram Panchayat Secretary and then after obtaining sanction of prosecution from the competent authority, charge sheet was filed against the appellant/accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C.Act.

3. After receipt of the charge sheet filed against the appellant/accused the Special Court has taken the cognizance of the said offences as per Section 190 of Code of Criminal Procedure (Cr.P.C) and copy of the charge sheet is furnished to the appellant/accused as per Section 207 of Cr.P.C and then proceeded with the trial. The Special Court has framed charge against the appellant/accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C.Act and upon reading over and explained in the language known to him the appellant/accused pleaded not guilty 5 and claims to be tried and accordingly, by recording the plea proceeded with the evidence.

4. The prosecution in order to prove its case has got examined totally 11 witnesses as PWs.1 to 11 and got marked documentary evidences as Exs.P.1 to P.31 and got marked material objects M.Os.1 to 11. After completion of the prosecution side evidences, the incriminating evidences and circumstances were put to the appellant/ accused by examining the appellant/accused under Section 313 of Cr.P.C and he has denied all the incriminating evidences and circumstances and he did not choose to lead defence evidence and also has not submitted any documents/explanations during the course of recording statement under Section 313 of Cr.P.C and it is simply denial of the case by the appellant/accused.

5. After completion of trial as stated above the learned Special Court after evaluating and assessing the evidences on record had come to the conclusion that the 6 appellant/accused is guilty of the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the P.C.Act and accordingly, sentenced the appellant/accused to undergo simple imprisonment for a period of six months with fine of Rs.1,000/- for the offence punishable under Section 7 of the P.C.Act with default clause. Further sentenced to undergo simple imprisonment for a period of two years with fine of Rs.2,000/- for the offence punishable under Section 13(1)(d) read with Section 13(2) of P.C.Act with default clause and it was ordered that all the substantive sentences shall run concurrently. The Special Court has assigned the reasons that the prosecution is able to prove the guilt of the appellant/accused beyond reasonable doubt from the evidence of PWs.1, 2 and 3, who are panch witnesses and the complainant and also from the evidence of PWs.11 and 12, who are the police official witnesses and it is proved the demand of bribe amount and acceptance in respect of the work of the PW.2 and hence convicted the 7 appellant/accused and also relied on the circumstantial witnesses and formed an opinion which supports the case of the prosecution that the appellant/accused has committed the alleged offence, therefore, recorded the conviction order as above stated.

6. Being aggrieved by the judgment of conviction and order on sentence recorded by the Special Court the appellant/accused has preferred the present appeal raising various grounds inter alia contending that the Special Court has not appreciated the evidence on record properly.

7. The learned counsel for the appellant/accused vehemently argued that the appellant/accused has never demanded bribe amount from the PW.2 but the PW.2 had received hand loan of Rs.500/- from the appellant/ accused and the same loan was repaid by the PW.2 to the appellant/accused. Therefore, this evidence is borne-out from the evidence of PW.2 and therefore submitted that 8 PW.2 himself admitted that the appellant/accused had not demanded any bribe amount and also had not accepted the bribe amount. The complainant-PW.2 had taken hand loan from the appellant/accused and when he was returning the said amount to the appellant/accused, the appellant/accused was trapped. Therefore, submitted that when there is no demand proved just possession of currency notes does not prove the case of prosecution and prayed for acquittal of the appellant/accused.

8. Further submitted that the prosecution has failed to prove the aspect of demand of bribe amount made by the appellant/accused and proving this aspect the PW.2 is base witness but he had stated that the appellant/accused never demanded the bribe amount but the PW.2 has repaid the hand loan taken from appellant/accused. Therefore, under these circumstances submitted that the appellant/accused has not made demand of bribe amount and also has not accepted the bribe amount and whatever the acceptance of Rs.500/- by 9 the appellant/accused is not the acceptance of bribe amount but it is the acceptance of hand loan from the PW.2.

9. Further submitted that when it is the case of prosecution that after apprehending the appellant/ accused his shirt packet was dipped into the sodium carbonate solution and the said solution was turned into pink colour, but, in the FSL report Ex.P.30 the said shirt packet of the appellant/accused is tested positive by phenolphthalein powder but tested negative for sodium carbonate solution. Therefore, submitted that this goes to the very core of the prosecution case in rendering the case unbelievable.

10. Further submitted that PW.2 during the course of cross-examination has completely stated that he used to take hand loan from the appellant/accused and used to return the said amount. Therefore, under this process the complainant had stated that he had received the hand 10 loan of Rs.500/- from the appellant/accused and as usual the complainant was returning the said loan amount. Therefore, submitted that when this being the evidence of PW.2 and admission given during the course of cross- examination then the prosecution has miserably failed to prove the guilt of the appellant/accused beyond reasonable doubt. Therefore, submitted that with reference to the admission in his cross-examination that when the theory of demand and acceptance of bribe amount is not proved then it can be said that the prosecution has failed to prove the guilt of the appellant/accused.

11. Further submitted that mere acceptance of amount do not constitute the offence punishable under Sections 7 and 13(1)(d) of P.C.Act. Therefore, submitted that the prosecution does not have cogent evidence to hold that the appellant/accused is guilty of the alleged offence. 11

12. Further the counsel for the appellant/accused submitted that PW.1 is stated to be shadow witness but during the evidence, it is revealed that he has not heard the conversation between the appellant/accused and the PW.2. Therefore, the demand of bribe amount made by the appellant/accused is not proved by this independent witness PW.1. Therefore, submitted that when the PW.2 himself has stated that the appellant/accused has not made demand of bribe amount, then from the evidence of PW.1 revealed that he did not hear the conversation between the appellant/accused and the complainant. Therefore regarding the demand of bribe amount the prosecution does not have cogent and believable evidence, hence prayed to grant benefit of doubt in favour of the appellant/accused.

13. Further submitted that PW.5 is the independent witness and it is the case of the prosecution that from the beginning till trapping the appellant/ accused the PW.5 has accompanied with PW.2 but he 12 turned hostile and has not at all said that the appellant/accused has made demand of bribe amount and has accepted the bribe amount therefore this is one of the important circumstances setting back the prosecution case. Therefore, prayed to allow the appeal and acquit the appellant/accused.

14. Further submitted PW.8 is also another independent witness who has also not stated that the appellant/accused has made demand of bribe amount and same has accepted. Therefore, when all these evidences of important witnesses are taken together cumulatively then the prosecution is not able to prove the guilt of the appellant/accused beyond all reasonable doubt. Then nothing remains for the prosecution from other evidences to prove guilt of the appellant/accused, therefore, prays to allow the appeal and acquit the appellant/accused.

15. Further submitted that just because PWs.10 and 11 are the police official witnesses have stated but in 13 absence of corroborative evidences of PW.2, shadow witness and other two independent witnesses, the evidences of PW.10 and 11 cannot be believable as they are highly interested witnesses being police officials, therefore, their evidence cannot be believed. It is submitted that when the evidences are considered with cumulative effect then the prosecution has miserably failed to prove the guilt of the appellant/accused. Therefore, prays for acquittal of the appellant/accused by setting aside the judgment of conviction and order on sentence.

16. The learned counsel for the appellant/accused has relied on the decision of the Hon'ble Apex Court in the case of M.R.Purushotham v. State of Karnataka [2014 (6) Kar.L.J 32 (SC)] and submitted that in the cited case the complainant (PW.1) himself had disowned what he has stated initially in the complaint and there was no other evidence to prove that accused had made demand for corruption. Therefore, this is not correct in convicting the 14 accused, by holding that mere possession and recovery of currency notes from the accused without proof of demand will not bring home the offence under the provisions of the P.C.Act. Therefore, under those facts and circumstances and evidences revealed, the Hon'ble Apex Court acquitted the accused. Therefore, submitted that in the present case also the PW.2 had turned hostile and has not supported the prosecution case and this is revealed in the course of cross-examination and therefore placing reliance on the said judgment, prays for acquittal of the appellant/accused.

17. On the other hand, the learned Special Public Prosecutor for the respondent-Lokayukta vehemently submitted that from the evidence of PW.2, it is proved that the appellant/accused had made demand of bribe amount and has accepted the sane.

18. Further submitted that PW.2 has supported the prosecution case but after four months when cross- 15 examination was taken place the PW.2 had resiled from his statement from the evidence. Therefore submitted that whatever the portion stated in the cross-examination cannot be accepted as clearly it is amounting to win over the witness.

19. Further submitted that there is time gap regarding examination-in-chief and cross-examination, during that interregnum period there may be a concrete chance of winning over the witnesses as it is done in the present case. Therefore, submitted that whatever the portion of evidence of PW.2 supports the prosecution case which is having corroboration from the other witnesses who are PWs.1 and 3 then the evidence of PW.2 what he has stated during the course of cross-examination that can be accepted and is liable to be convicted.

20. Further submitted that PW.1 is the shadow witness and who had categorically stated that the appellant/accused had demanded bribe amount and the 16 PW.2 has handed over the said currency notes smeared with phenolphthalein powder and upon washing the hands and shirt packet of the appellant/accused then it turned into pink colour. Therefore, it conclusively proved that the appellant/accused has made demand of bribe amount and also accepted in respect of the pending work for issuance of cheque.

21. Further it is submitted that the prosecution has proved all the three ingredients from these materials witnesses and accordingly the Special Court has rightly convicted and passed order on sentence, which need not to be interfered by this court.

22. Further submitted that even though the independent witnesses PWs.5 and 8 have turned hostile that do not discredit the prosecution case but otherwise from the evidence of PWs.10 and 11 and the police witnesses, the prosecution is able to prove the guilt of the appellant/accused beyond reasonable doubt. Therefore, 17 there are no reasons to disbelieve the official witnesses PWs.10 and 11. Further submitted that just because PWs.10 and 11 are being police officials their evidence cannot be denied as they are police officials unless the appellant/accused shows biased investigation or unfair investigation in the case but that element is not raised by the appellant/accused during the course of cross- examination and the investigation by the police officials is completely in a natural way and found to be fair one and their evidence can be believed therefore prayed to dismiss the appeal.

23. The learned Special Public Prosecutor has relied on the judgment of the Hon'ble Apex Court in the case of Vinod Kumar v. State of Punjab [(2015) 3 Supreme court Cases 220] and therefore submitted that in the present case it is elaborately discussed regarding the theory of demand of bribe amount and acceptance and other principle of law where the witnesses turned hostile. Therefore, considering all these factors and the principle of 18 law submitted that the above said judgment is squarely applicable to the case on hand. Therefore, prayed to dismiss the appeal.

24. Before going over to discuss the evidences rendered by the witnesses, it is appropriate to make glance over the role of each witnesses :-

PW.1 is the shadow witness as witnessed by Ex.P1- Demonstration Panchanama and Ex.P.9-Trap Panchanama; PW.2 is the complainant, who has lodged complaint as per Ex.P16; PW.3 is co-pancha to both Entrustment Panchanama and Trap Panchanama; PW.4 is the Manager of Kamakshi Hotel but he has turned hostile to the prosecution case; PW.5 is the Member of Panchayat Member of Kavalaga (B), Village who assisted the complainant; PW.6 is the Asst. Director of Agriculture, who came to know about the trap conducted by the Lokayukta on the appellant/accused and has furnished the service particulars of the appellant and the relevant 19 documents of sanctioning of the grant; PW.7 is the Engineer who prepared spot sketch of the spot wherein the trap was taken place; PW.8 is the Chairman of Kavalaga (B) Village Panchayat and he used to put his signature for delivery of cheque in the cheques maintained in the offence; PW.9 is the Deputy Secretary of Zilla Panchayat, who accorded sanction to prosecute the appellant/accused; PW.10 is the Police Constable who assisted his officer in preparing the Entrustment Panchanama as well as Trap Panchanama and PW.11 is the Police Inspector (Investigating Officer) who had conducted the investigation and filed charge sheet.

25. PW.2 is the complainant, who has lodged the complaint as per Ex.P16 making allegation that the appellant has demanded bribe amount of Rs.500/- in order to give cheque, which is for sanction of construction of house of the complainant under the Ashraya Scheme. Therefore, as aforesaid, the complaint is lodged by PW.2. PW.2 has given evidence before the Court that under the 20 Ashraya Scheme, the Government has sanctioned a sum of Rs.35,000/- to his wife and the said amount was ordered to be disbursed in four installments and accordingly, two installments amount has been given to him and at the time of disbursing third installment amount, the appellant demanded Rs.500/-, but the complainant-PW.2 was reluctant to give the bribe amount and therefore he approached the respondent-Lokayukta Police and the first information statement given by the PW.2 was reduced into writing and also the Lokayukta Police had given a tape recorder to the complainant for recording the conversation between him and the appellant. PW.2 has further deposed that after recording the conversation of the same, he has handed over the said tape recorder to the Lokayukta Police. He has identified the complaint as Ex.P16 and his left hand thumb impression on the complaint as Ex.P16(a). Further, he deposed that he has furnished five currency notes for denomination of Rs.100/- to the police and the Lokayukta 21 Police have applied the powder to the same. Then one pancha had put the said amount into packet of complainant and thereafter when the hands of said pancha were washed in Sodium Carbonate solution, the water turned into pink colour and that was taken and sealed as per M.O.1. Further, the photographs were taken as per Ex.P2 to P77 and regarding this, a panchanama was conducted as per Ex.P1. He further deposed that when he had been to Lokayukta Police, there were two panchas introduced to him and in their presence Ex.P1 panchanama was conducted. Further he deposed that the Lokayukta Police have instructed him and also the shadow panch witness PW.1 to go to the office of the appellant and whenever the appellant demands money, then the same would be given to him and also instructed PW.1 to watch the said events. He further deposed that he and PW.1 went to hotel and therein appellant had received the amount and cheque was handed over to the complainant and he had given signal to the Lokayukta 22 Police and then the police have apprehended the appellant and then appellant was brought to the Lokayukta office and therein the hands of the appellant were washed in Sodium Carbonate solution and the water turned into pink colour. Further, the appellant had handed over the said currency notes to Lokayukta Police and they were put in cover and sealed. Further PW.2 has deposed that he has given the same notes to the Lokayukta Police during Demonstration Panchanama. Further he deposed that the packet of the appellant was also washed in the solution and it was turned into pink colour and the said water was taken in a bottle and sealed as per M.O.8. Further, the photographs were taken as per Exs.P10 to P15 and regarding this, a panchanama was conducted as per Ex.P9.

26. The above said examination-in-chief was conducted on 15.01.2010. But, the cross-examination was not conducted on the same day because of absence of the counsel for the accused. Therefore, later on, on 23 07.04.2010 the cross-examination of PW.2 was conducted by the counsel for the accused.

27. During the course of cross-examination it was revealed that PW.5 Gourishankar is a member of Gram Panchayat, CW.5 Bhimsha is son-in-law and there was cordial relationship between CW.5 and PW.5. Further during the course of cross examination, PW.2 has stated that he used to take hand loan from the appellant and on many occasions he has taken hand loan from the appellant and when this case was registered, there was balance on the part of the PW.2 to return the amount of Rs.500/-. Therefore, the appellant was instigating the PW.2 to repay the amount. Further he stated that PW.5 had taken him to the Lokayukta Office and at his instance he lodged a complaint. Further, PW.2 has stated that he has not stated before the Lokayukta Police that the appellant was demanding money. Therefore, it is the evidence of PW.2 that at the say and instigation of PW.5 Gourishankar, he has lodged the complaint and put his 24 left hand thumb impression on the papers. Further, PW.2 has stated that he has not at all discussed with the appellant regarding issuance of cheque and also had not made any conversation with the appellant regarding issuance of cheque. Further he has stated that, the appellant had stated him that he is in the meeting at Gulbarga Taluka Panchayat and the PW.2 should collect the cheque from there and it is his evidence that the appellant has not at all demanded the bribe amount from him for issuance of cheque. When the PW.2 had completely resiled from his own statement given in examination-in-chief and turned hostile, then the Public Prosecutor had cross-examined the PW.2 and therein he has stated that whatever the evidences he had given on 02.02.2010 in the examination-in-chief are true. The suggestion that at the say of the appellant that whenever he comes to the court he will give Rs.500/- to the PW.2, is denied.

28. Therefore, the evidence of PW.2 both in the examination-in-chief and cross-examination and the date of events of recording these two evidences are to be considered. The examination in-chief of PW.2 was recorded on 15.01.2010 and cross-examination was recorded on 07.04.2010. Therefore, on the very same day when the PW.2 had given examination-in-chief, the cross examination was not done. Therefore, there are two versions of PW.2, one is in favour of the prosecution and another one is in favour of the defence. In his cross- examination, PW.2 has completely deposed in favour of the appellant that the appellant had not demanded the bribe amount and he has not given the bribe amount. Further, PW.2 has stated that he used to take hand loan from the appellant and there was balance on the part of the PW.2 to return the said amount and accordingly, when the PW.2 had given a sum of Rs.500/- to the appellant, at that time he was trapped. But, it was not a bribe amount and it is hand loan received from the appellant. Therefore, 26 upon considering these two exact opposite versions of evidence, which version of evidence of PW.2 is to be accepted is a question before the Court.

29. In this regard, I place reliance on the judgment of the Hon'ble Apex Court in the case of Sat Paul v. Delhi Administration [AIR 1976 SC 294], wherein, at paras 28 to 38, 45, 46, 48, 49, 50 and 51, Their Lordships were pleased to observe as follows ;-

28. Relying on Jagir Singh v. State (AIR 1975 SC 1400) ibid, Mr. Anthony submits that when a prosecution witness, being hostile, is cross- examined by the Public Prosecutor with the leave of the Court, his entire evidence is to be discarded, as a matter of law.

29. Since this vexing question frequently arises, and the observations made by this Court in Jagir Singh's case (ibid) do not appear to have been properly understood, it will be appropriate to clarify the law on the point.

29A. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. At Common Law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to 27 impeach his credit by general evidence of bad character. This rule had its foundation on the theory that by calling the witness, a party represents him to the Court as worthy of credit, and if he afterwards attacks his general character for veracity, this is not only mala fides towards the Court, but, it "would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him" (see Best on Evidence, p. 630, 11th Edn.). This theory or assumption gave rise to a considerable conflict of opinion as to whether it was competent for a party to show that his own witness had made statements out of Court inconsistent with the evidence given by him in court. The weight of the ancient authority was in the negative.

30. In support of the dominant view it was urged that to allow a party directly to discredit or contradict his own witness would tend to multiply issues and enable the party to get the naked statement of a witness before the jury, operating in fact as substantive evidence, that this course would open the door wide open for collusion and dishonest contrivance.

31. As against this, the exponents of the rival view, that a party should be permitted to discredit or contradict his own witness who turns unfavourable to him argued that this course is necessary as a security against the contrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favourable evidence and afterwards by hostile evidence ruin his cause. It was reasoned further "that this is a question in which not only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings, that the ends of justice are best 28 attained by allowing a free and ample scope for scrutinising evidence and estimating its real value, and that in the administration of criminal justice more especially, the exclusion of the proof of contrary statements might be attended with the worst consequences". Besides, it by no means follows that the object of a party in contradicting his own witness is to impeach his veracity, it may be to show the faultiness of his memory" (see Best, page 631, 11th Edn.).

32. The rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable witness" and by attempting to draw a distinction between the two categories. A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him, and an 'unfavourable witness' is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact (see Cross on Evidence, p. 220, 4th Edn., citing Stephen's Digest of the Law of Evidence).

33. In the case of an 'unfavourable witness', the party calling him was allowed to contradict him by producing evidence aliunde but the prohibition against cross-examination by means of leading questions or by contradicting him with his previous inconsistent statements or by asking questions with regard to his discreditable past conduct or previous conviction, continued. But in the case of a 'hostile' witness, the Judge could permit his examination-in- chief to be conducted in the manner of cross- examination to the extent to which he considered necessary in the interests of justice. With the leave of the court, leading questions could be put to a hostile witness to test his memory and perception or 29 his knowledge of the facts to which he was deposing. Even so, the party calling him, could not question him about his bad antecedents or previous convictions, nor could he produce evidence to show that the veracity of the witness was doubtful. But the position as to whether a previous inconsistent statement could be proved against a hostile witness, remained as murky as ever.

34. To settle the law with regard to this matter, Section 22 of the Common Law Procedure Act, 1854 was enacted. It was originally applicable to civil proceedings, but was since re-enacted in Section 3 of the Criminal Procedure Act, 1865 and extended in identical terms to proceedings in criminal courts as well.

35. Section 3 provides:

A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

(Emphasis added)

36. The construction of these provisions, however, continued to cause difficulty, particularly in their application to 'unfavourable' witnesses. In Greenough v. Eccles (1859) 5 CBNS 786 these provisions were found so confusing that Cockburn C. J. said that "there has been a great blunder in 30 the drawing of it, and on the part of those who adopted it.

37. To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witnesse's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.

38. It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. Under the English Act of 1865, a party calling the witness, can "cross-examine" and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse.' As already noticed, no such condition has been laid down in Sections 154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of the English law. The Criminal Law Revision Committee of England in its 11th Report, made recently, has recommended the adoption of a modernised version of Section 3 of the Criminal Procedure Act. 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character."

xxxxxxx xxxxxxx "45. After answering in the negative, the three questions viz., whether the evidence of a witness treated as 'hostile' must be rejected in whole or in part, whether it must be rejected so far it is in favour of the party calling the witness, whether 32 it must be rejected so far as it is in favour of the opposite party, the learned Chief Justice proceeded:

"...the whole of the evidence so far as it affects both parties favourably or unfavourably must go to the jury for what it is worth... ... ... If the previous statement is the deposition before the committing Magistrate and if it is put in under Section 288, Criminal Procedure Code, so as to become evidence for all purposes, the jury may in effect be directed to choose between the two statements because both statements are evidence of the facts stated therein. But in other cases the jury may not be so directed, because prima facie the previous statement of the witness is not evidence at all against the accused of the truth of the facts stated therein. The proper direction to the jury is that before relying on the evidence given by the witness at the trial the jury should take into consideration the fact that he made the previous statement, but they must not treat the previous statement as being any evidence at all against the prisoner of the facta therein alleged.

... ... ... ... In a criminal case, however, the previous unsworn statement of a witness for the prosecution is not evidence against the accused of the truth of the facts stated therein save in very special circumstances, e. g., as corroboration under Section 157 of his testimony in the witness-box on the conditions therein laid down. If the case be put of the previous statement having been made in the presence and hearing of the accused, this fact might under Section 8 alter the position; but the true view even then is not that the statement is evidence of the truth of what it contains, 33 but that if the jury think that the conduct, silence or answer of the prisoner at the time amounted to an acceptance of the statement or some part of it, the jury may consider that acceptance as an admission (The King v. Norton, Percy William Adams, (1910) 2 KB 496 and (1923) 17 Cri App Rep 77). But apart from such special cases, which attract special principles, the unsworn statement, so far as the maker in his evidence does not confirm and repeat it, cannot be used at all against the accused as proof of the truth of what it asserts."

46. We are in respectful agreement with this enunciation. It is a correct exposition of the law on the point."

"48. In the case of an unfavourable witness, even in England the better opinion is that where a party contradicts his own witness on one part of his evidence, he does not thereby throw over all the witness's evidence, though its value may be impaired in the eyes of the court. (Halsbury, 3rd Edn. Vol. 15, Para 805).

49. In Bradley v. Ricardo (1831) 8 Bing 57 when it was urged as an objection that this would be giving credit to the witness on one point after he has been discredited on another, Tindal C. J. brushed it aside with the observation that "difficulties of the same kind occur in every cause where a jury has to decide on conflicting testimony".

50. In Narayan Nathu Naik v. Maharashtra State the court actually used the evidence of the prosecution witnesses who had partly resiled from their previous statements, to the extent they supported the prosecution, for corroborating the other witnesses.

51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.""

30. Further, the Hon'ble Apex Court in the case of Bhagwan Singh vs The State Of Haryana [AIR 1976 Supreme Court 202] wherein, at para 8, Their Lordships were pleased to observe as follows:-

"8. We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the Prosecutor to 35 cross examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately been recorded by the D.S.P., is amply corroborated by other evidence mentioned above to inspire confidence in his testimony. Apart from that the fact of recovery of the gold coins in the pocket of the appellant gave a seal of finality to the truth of the charge against the appellant. If Jagat Singh had accepted the bribe he would have been guilty under Section 161 I.P.C. There is, therefore, clear abetment by the appellant of the offence under Section 161 I.P.C. and the ingredients of Section 165-A I.P.C. are established against him."

31. Further in the case of Arjun And another vs State Of Chhattisgarh [(2017) 3 Supreme Court Cases 247] wherein, at para 16, Their Lordships were pleased to observe as follows :-

"16. In Paramjeet Singh alias Pamma vs. State of Uttarakhand [(2010) 10 SCC 439], it was held as under:-

"16. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has 36 no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. [Vide State of Rajasthan v. Bhawani [(2003) 7 SCC 291]]

17. This Court while deciding the issue in Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450] observed as under: (SCC p. 457, para 7) '7. ... It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.'

18. In Mahesh v. State of Maharashtra [(2008) 13 SCC 271] this Court considered the value of the deposition of a hostile witness and held as under: (SCC p. 289, para 49) '49. ... If PW.1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW.1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution.' 37

19. In Rajendra v. State of U.P. [(2009) 13 SCC 480], this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa v. State of Karnataka [(2010) 6 SCC 533] observing that the deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the prosecution.

20. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."

The same view is reiterated in Mrinal Das. vs. State of Tripura [(2011) 9 SCC 479] in para (67) and also in Khachar Dipu vs. State of Gujarat [(2013) 4 SCC 322] in para (17)."

32. Further in the present case the PW.2 the complainant while giving evidence in examination-in-chief on 15.01.2010, supported the case of the prosecution, but while conducting cross-examination of PW.2 on 07.04.2010, he had resiled from his evidence in examination-in-chief. Therefore, under these circumstances, the principle of law laid down by the Hon'ble Apex Court in the very similar situation can be relied on the judgment of Vinod Kumar v. State of 38 Punjab [(2015) 3 Supreme Court Cases 220], wherein, at paragraphs 31 and 32, Their Lordships were pleased to observe as follows :-

"31. The next aspect which requires to be adverted to is whether testimony of a hostile evidence that has come on record should be relied upon or not. Mr. Jain, learned senior counsel for the appellant would contend that as PW-7 has totally resiled in his cross-examination, his evidence is to be discarded in toto. On a perusal of the testimony of the said witness, it is evincible that in examination-in-chief, he has supported the prosecution story in entirety and in the cross-examination he has taken the path of prevarication. In Bhagwan Singh V. State of Haryana [(1976) 3 SCC 389], it has been laid down that even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. In Khuji @ Surendra Tiwari V. State of Madhya Pradesh [(1991) 3 SCC 627], the Court after referring to the authorities in Bhagwan Singh (supra), Rabindra Kumar Dey V. State of Orissa [(1976) 4 SCC 233] and Syad Akbar V. State of Karnataka [(1980) 1 SCC 30], opined that the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof.

32. In this context, we think it apt to reproduce some passages from Rammi @ Rameshwar V. State of Madhya Pradesh [(1989) 8 SCC 649], where the Court was dealing with the purpose of re-examination. After referring to Section 138 of the Evidence Act, the Court held thus:

(SCC p.655, paras 17-18) 39 "17. There is an erroneous impression that re-

examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.

18. Even if the Public Prosecutor feels that new matters should be elicited from the witness he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions.""

33. In the very same judgment the Hon'ble Apex Court were pleased to observe by expressing its agony and anguish the manner in which trials in respect of serious offences relating to corruption are being conducted by the 40 trial courts, as in the present case there is a difference of nearly four months in recording evidence in examination- in-chief and cross-examination. Therefore, in the present case even though PW.2 supports the prosecution case in examination-in-chief but completely resiled in the course of cross-examination recorded on 07.04.2010 and in this regard, it is worthwhile to extract the observation of the Hon'ble Apex Court at para 57 and onwards, which are reproduced as under :-

"57. Before parting with the case we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts.

57.1. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross- examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of.

57.2. As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to 41 pressurize the witness and to gain over him by adopting all kinds of tactics.

57.3. There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non- acceptable reasons.

57.4. In fact, it is not all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in- chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial.

57.5. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it 42 appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross- examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute."

34. Therefore, as per the principles of law laid down by the Hon'ble Apex Court stated supra, whichever portion of the evidence of witness supports the prosecution case and it is corroborated by the other evidence, the said evidence can be accepted. In the present case, PW.2 had stated that he had lodged a complaint as per Ex.P16 and admitted his left hand thumb impression as Ex.P16(a). The contents of Ex.P16 is that for giving cheque, the appellant had demanded bribe amount of Rs.500/-. Therefore, being reluctant to give the bribe amount, the complainant-PW.2 had lodged a complaint before the Lokayukta Police. PW.2 has not denied that he has not lodged the compliant before the 43 Lokayukta Police. Therefore, under these circumstances, the evidences of other witnesses are to be appreciated with regard to whether they corroborate the evidence of PW.2 or not and corroborate the each version of PW.2. Therefore, in this regard, the evidences of PWs.1 and 5 are considered and appreciated.

35. PW.1 is the shadow witness, who had stated that on 14.03.2008 as per the orders of his superior officer he went along with Lokayukta Police to the Lokayukta Office afternoon at 1.45 p.m. There, other persons were also present and the Police Inspector had introduced CW.5 and PW.5 Gourishankar to him and the Police Inspector has read over the contents of the complaint given by the PW.2 and also the conversation recorded in a cassette was played through a tape recorder and make them to hear and it is the evidence of PW.1 that as per the said conversation, there was demand of amount of Rs.500/-. Further, PW.1 has stated that the complainant-PW.2 has given five currency notes for denomination of Rs.100/- to 44 the Lokayukta Police and the police have applied Phenolphthalein powder to the same and kept the said notes into the packet of PW.2 and instructed him that the same would be given to appellant whenever he makes demand and it was explained that if anybody accepts bribe, then after washing their hands in the water containing sodium carbonate solution, they will turn into pink colour. Further, PW.1 has stated that in this regard by following the procedure, Demonstration Panchanama was conducted and recorded as per Ex.P1 and he had put his signature on the same and photographs were also taken as per Exs.P2 to P7. Further, PW.2 was instructed to go to the office of the appellant and the said currency notes were to be handed over to the appellant, if he asks and then the PW.1 and PW.5 were instructed to go with PW.2. Thereafter, when PW.5-Gourishankar asked the Secretary of Panchayat that where they should come to give the amount, he told that they may come to bus stand. Therefore, PW.5-Gourishankar, PW.1, the shadow witness 45 and PW.2 went to the bus stand and even after waiting for half an hour, appellant did not come to the said place and then PW.5 had telephoned the appellant and it was stated that the appellant was in meeting in Taluka Panchayat Office and hence, all of them went to the said place. When they went to the said Taluka Panchayat Office, the appellant had come out from the Taluka Panchayat Office and thereafter the PW.2 and CW.5 met the appellant and then went to Kamakshi hotel and PW.1 had followed them. On one table the said three persons namely, appellant, PW.2 and PW.5 sat and on another table the PW.1 sat. Further, it is the evidence of PW.1 that he had witnessed that PW.2 had given said currency notes to the appellant and the appellant had put them into his packet and then the appellant had put his signature on the cheque and handed over it to the PW.2. Then, upon the signal given by the PW.2, the Lokayukta Police have apprehended the appellant. Thereafter, all of them have been taken to the Lokayukta Office and therein a Trap Panchanama was 46 conducted by in detail stating the procedure carried out in the Trap Panchanama.

36. PW.1 had stated that when the hands of the appellant/accused were washed in sodium carbonate solution then it turned into pink colour and then the appellant/accused had handed over the said Rs.500/- currency notes to the Lokayukta Police.

37. Further PW.1 stated that the shirt packet of the appellant/accused was dipped into the sodium carbonate solution then it was turned into pink colour. Therefore, in this regard a Trap Panchanama as per Ex.P.9 was conducted. Further PW.1 stated that appellant/accused has given explanation in writing as per Ex.P.8 and he has put his signature and there is also photographs were taken as per Exs.P.10 to P.15.

38. The PW.1 was put into elaborate cross- examination but nothing is revealed that he is telling lie before the court and also it is not proved that the PW.1 is 47 highly interested witness as against the detrimental to the interest of the appellant/accused for personal reasons.

39. The learned counsel for the appellant/accused argued that in the course of cross-examination of PW.1 had admitted that when the appellant/accused, PW.2 and PW.5 were going to hotel what was the conservation taken place between them and also when they were in the hotel what was the conversation between them is not heard by PW.1. Therefore, it is the submission made by the counsel for the appellant/accused that PW.1 being shadow witness had not stated what was the conversation between them to say whether the appellant/accused has demanded the bribe amount and what was the conversation, is not revealed. Therefore, submitted that the demand made by the appellant/accused is not proved. But the evidence of PW.1 that he has witnessed that the PW.2 had given currency notes to the appellant/accused and the said currency notes received by the appellant/accused is not impeached in the course of cross-examination. Just 48 because it was not possible for PW.1 to hear what was the conservation between them that cannot be made ground to reject the evidence of PW.1.

40. The PW.2 had stated in his examination-in- chief that the appellant/accused has made demand of Rs.500/- as bribe amount for giving cheque, the same is reflected in the complaint Ex.P.16. The PW.1 had witnessed that the PW.2 has given the said currency notes to the appellant/accused and the appellant/accused had received the same. Therefore, just because it is revealed in the course of cross-examination that PW.1 had not heard what was the conversation taken place between them that cannot be made ground to reject the prosecution case for the reason that quite naturally in a hotel there are many people and what would be the conservation on one table to another table cannot be heard by the persons who sat on another table. It is quite natural phenomena unless they are taking in high pitch voices. Therefore, further it is not the case of the prosecution that the PW.1 also sat on the 49 same table where the PW.2, PW.5 and PW.3 were sat, but, the PW.1 sat on another table and always there is quite some distance. Therefore under these circumstances it is natural phenomena that sometime what was the conversation taken place in one table cannot be heard by the person who is sitting on another table. In this regard an admission is made that cannot go to the core of the prosecution case but the evidence of PW.1 is believable, trustworthy so far as the receipt of the amount.

41. Furthermore in the complaint Ex.P.16 the PW.2 had stated that the appellant/accused had demanded bribe amount the same is also stated by PW.1 in his examination-in-chief. Therefore, in this regard, the admission of PW.1 does not go to the very core of the prosecution to show that the appellant/accused has not at all made any demand of bribe amount. Therefore, the evidence of PW.1 as discussed above corroborates the evidence of PW.2 what he has stated in examination-in- chief. The evidence of PW.1 what he has stated 50 examination-in-chief regarding offence is proved and is also corroborated by the evidence of PW.2 as above discussed.

42. Further upon considering the evidence of PW.3 who is another panch witness and also pancha for Demonstration Panchanama. He had also stated in the same line as that of PW.1. He has stated that on 14.03.2008, he had been to the Lokayukta Police Station therein the PW.2 and other panch witnesses were there and they were introduced to each other and as per the request of the Lokayukta Police the PWs.1 and 3 are ready for acting as panchas. The PW.3 had stated that upon hearing the conversation from the tape recorder the appellant/accused had demanded bribe amount of Rs.500/- from the PW.2, therefore he had heard such conservation.

43. Further stated that the Lokayukta Police have conducted Demonstration Panchanama upon receiving the 51 currency notes from PW.2 and smeared the phenolphthalein powder and then made procedure of washing of hands of the PW.2, which were turned into pink colour and then giving instruction to PW.2 to approach the appellant/accused and if the appellant/ accused demands money then the amount would be given to him and given instruction to PW.1 to act as shadow witness.

44. Further, it is stated that all of them went to the hotel which is infront of the bus stand but therein the appellant/accused did not come and then upon making phone to the appellant/accused, he had been to the Taluk Panchayat Office therein the appellant/accused had come from the office and all have gone to another hotel and there in the hotel the PW.2, appellant/accused and PW.5 sat on one table and the PW.1 and other Lokayukta Police were standing outside the hotel, after 15 minutes the PW.2 had came out from the hotel and gave signal and then Lokayukta police have conducted raid on the 52 appellant/accused and apprehended him and then they have been taken to the Lokayukta office and following the procedures by drawing Trap Panchanama.

45. It is the evidence of PW.3 that when the hands of the appellant/accused were washed in sodium carbonate solution then said sodium carbonate solution turned into pink colour and the shirt packet of the appellant/accused was also washed in sodium carbonate solution it was also turned into pink colour. Therefore, all these phenomena were recorded as per Ex.P.9. Upon considering the cross-examination of PW.3 which is corroborated one nothing is revealed that the PW.3 is telling lie before the court.

46. Further, it is not proved that PW.3 has personal grudge towards the appellant/accused and he has given false evidence before the court and it appears to be natural one that what was he has witnessed he has stated before the court. Therefore, the evidence of PW.3 53 corroborates the evidence of PW.2 what he has given in examination-in-chief. Therefore, from the evidences of PWs.1, 2 and 3 as above discussed and also from the complaint - Ex.P.16 and upon the principle of law laid down by the Hon'ble Apex Court above stated supra, it is proved that the appellant/accused has made a demand of bribe amount of Rs.500/- from the complainant for issuance of cheque and accepted the said bribe amount from the complainant. Therefore all these three factors are proved from the evidence of PWs.1 to 3 as above discussed.

47. Honouring the submission made by the learned counsel for the appellant/accused that with reference to the FSL report Ex.P.30, that the FSL report so far as shirt of the appellant/accused is concerned found testing positive for phenolphthalein powder and found testing negative for sodium carbonate solution, therefore, in this regard he had relied on the admission in the cross- examination of PW.1 that even though the prosecution has 54 shown that shirt packet of the appellant/accused was turned into pink colour, but in the FSL report, it is revealed that the sodium carbonate found negative. When upon analyzing of this evidence shirt packet of the appellant/accused is contained with phenolphthalein powder smeared on the currency notes, it is not the case of the prosecution that the shirt packet of the appellant/accused is contained with the sodium carbonate solution. When the shirt packet of the appellant/accused was come into contact with the sodium carbonate solution then it turned into pink colour. Therefore, when the shirt packet which only contains the contents of phenolphthalein powder was sent for FSL, quite naturally it is tested negative for sodium carbonate solution but tested positive for phenolphthalein powder, quite naturally tested for negative for sodium carbonate solution for the reason that the shirt packet did not contain the sodium carbonate solution. Therefore what was the content in the shirt packet which contained 55 phenolphthalein powder therefore accordingly tested for positive for presence of phenolphthalein powder and tested negative for sodium carbonate solution. Therefore, this do not go to the core of the prosecution case and also I do not find any merit in the submission made by the counsel for the appellant/accused that it goes to very core of the prosecution case. Just because the shirt packet of the appellant/accused is dipped into the sodium carbonate solution that observation cannot be found positive for sodium carbonate solution. Because the contents of the said shirt packet is only on having phenolphthalein powder but not sodium carbonate solution. Just dipping on sodium carbonate solution it does not mean that shirt packet contacts with the sodium carbonate solution for holding together for long time, but shirt packet contains the currency notes of smearing with phenolphthalein powder. Therefore, accordingly the presence of phenolphthalein powder on the shirt packet is found positive and the presence of sodium carbonate 56 solution is found negative. Therefore, in this regard the submission made by the counsel for the appellant/ accused cannot be accepted.

48. Further upon considering the evidence of PWs.5 and 8, who are stated to be independent witnesses have turned hostile. Upon considering the evidences of PWs.1 to 3 above discussed and the hostility of the witnesses PWs.5 and 8 do not discredit the prosecution case. Because the prosecution case is that the appellant/accused demanded bribe amount and accepted the said bribe amount in respect of the work of issuance of cheque is proved by the evidence of PWs.1 to 3. Therefore, just because the PWs.5 and 8 have turned hostile, it does not take away the entire prosecution case showing that the appellant/accused did not commit offence as alleged. Therefore, the hostility of PWs.5 and 8 do not impeach the prosecution case in toto, to say that the prosecution case is false one.

49. Therefore, when upon considering the evidence of PW.2 as he has stated exactly opposite version in his evidence one in examination-in-chief and another one is in cross-examination. But the evidence of PW.2 what he has stated in examination-in-chief is corroborated by the evidence of PWs.2 and 3 and also the contents of Ex.P.16 that the PW.2 had stated in his evidence that he has lodged such complaint Ex.P.16 making allegation against the appellant/accused that he has demanded bribe amount. Therefore, whatever the evidence of PW.2 stated in examination-in-chief is the demand and acceptance made by the appellant/accused in respect of the work of his issuance of cheque but it is corroborated by the evidence of PWs.1 and 3. Therefore, the cross-examination of PW.2 recorded on 07.04.2010 is proved to be having won over the PW.2 at the time of cross-examination of him. Therefore, upon following the principle of law that "falsus in uno falsus in omnibus" is not applicable in India. Therefore, based on the principle of law laid down 58 by the Hon'ble Apex Court stated supra the portion of evidence of PW.2 what he has deposed in examination-in- chief supporting the prosecution case which is corroborated by the evidence of PWs.1 and 3 can be accepted in favour of the prosecution and accordingly the said evidence is accepted.

50. Then upon considering the evidence of PWs.10 and 11 who are the police officials. PW.10 is the Police Constable accompanied the raid and stated that the Demonstration Panchanama was conducted on 14.03.2008, based on the complaint lodged by PW.2 and in detail stating the procedures of conducting Demonstration Panchanama, then going over for conducting raid on the appellant/accused and the appellant/accused was caught hold read handedly along with said currency notes, which were handed over by the PW.2 to the appellant/accused and after apprehension of the appellant/accused, washing of the hands of the appellant/accused and the shirt packet of the appellant/ 59 accused in sodium carbonate solution and then it turning into pink colour, all is stated and is tested with the cross- examination but in the cross-examination the evidence of PW.10 is not impeached to say that PW.10 is telling lie before the court. The evidence of PW.10 - Police Constable is found be natural and what he has witnessed has stated before the court.

51. Further upon considering the evidence of PW.11 who has conducted investigation and he had participated even from the beginning when the PW.2 had approached him for lodging complaint till filing of such charge sheet. The PW.11 has narrated the sequence of events during the course of investigation and in brief it can be summarized as below :-

That the PW.2 had approached him on 12.03.2008, making allegation against the appellant/accused that the appellant/accused was demanding bribe amount then making for preliminary assessment before the court 60 recording first information statement into writing and recording of conversation in cassette and after recording the same once again approached on 14.03.2008 and which was reduced into writing as per Ex.P.16 and case was registered and then summoning two witnesses PWs.1 and 3 and the complaint was given to them for reading and understanding the contents therein.

Further he deposed that the complainant had handed over 5 currency notes of Rs.100/- denomination and noted down such currency notes and accordingly the PW.3 had noted the said currency notes and same were mentioned in Demonstration Panchanama. Further submitted that the procedure of smearing phenolphthalein powder on the currency notes and when dipped into sodium carbonate solution then turning into pink colour all is explained.

Further stated that he has given instruction to PWs.1 and 2 to go to the office of the appellant/accused 61 and is specifically instructed the PW.2 if the appellant/accused asked the money then only the amount would be given and same should be witnessed by PW.1 as shadow witness. Further stated that in this regard the Demonstration Panchanama was prepared as per Ex.P.1 and photographs were taken as per Exs.P.2 to P.7.

Further the PW.11 had deposed that they had been to the office of the appellant/accused but he was not in the office but after making information that the appellant/accused was in the Taluk Panchayat Office and further went there and then the appellant/accused had come out from the Taluk Panchayat Office and PW.2 and appellant/accused went to the Kamakshi Restaurant and PW.1 had followed them as shadow witness and thereafter the PW.2 had given signal then raid was conducted on the appellant/accused and apprehended and then taken to the Lokayukta Office therein hands of the appellant/ accused were washed with sodium carbonate solution the same had turned into pink colour and then upon seizure 62 of currency notes and the shirt packet of the appellant/accused was dipped into sodium carbonate solution the same also turned into pink colour. Therefore, he had narrated all the procedures of Trap Panchanama by stating that the Trap Panchanama was prepared as per Ex.P.9.

Further the PW.11 had stated that during the course of this procedure the appellant/accused had submitted his explanation as per Ex.P.8, then conducted investigation regarding work of the appellant/accused and service particulars of the appellant/accused and made arrangement for handing over cheque of the wife of the complainant as per Ex.P.28 and after obtaining sanction from the competent authority and after completion of investigation, he filed charge sheet.

52. Therefore upon considering the evidence of PW.11 with reference to cross-examination nothing is revealed that the PW.11 is telling falsehoodness before the 63 court. PW.11 had deposed what the sequence of events in the course of investigation from beginning to till filing of the charge sheet. It is not revealed during the course of cross-examination that since PW.11 is having animosity with the appellant/accused therefore a false charge sheet is laid against him. Therefore, upon considering the evidence of PW.11, it inspires confidence of the court that what has been transpired in the present case. Therefore, evidence of PWs.10 and 11 as above discussed inspires confidence of the court as they are telling truth before the court whatever have transpired in the present case the same is deposed before the court. Therefore, from the evidence of PWs.10 and 11, it is revealed that which are having nature of corroboration to the evidence of PW.2 what the PW.2 had stated in his examination-in-chief. Therefore, the prosecution is able to prove the guilt of the appellant/accused from the evidence of PWs.10 and 11 as above stated.

53. Upon considering the voluntary explanation offered by the appellant/accused as per Ex.P.8. In Ex.P.8 appellant/accused had stated that PW.2 had demanded hand loan from him of Rs.500/- since it was not returned and therefore he has withheld the cheque and then the appellant/accused stated that after repaying the said hand loan amount he would give the cheque. Therefore this is the explanation by the appellant/accused that for wreaking vengeance PW.2 has lodged false complaint against him.

54. Upon considering the voluntary explanation of the appellant/accused as per Ex.P.8, it is not disputed by the appellant/accused that he has not given said statement. The appellant/accused had submitted that he has given such statement during the course of investigation soon after the apprehending the appellant/ accused. Upon considering the explanation in Ex.P.8 that it is an admitted fact of Rs.500/- is received from the PW.2. But it is the explanation of the appellant/accused 65 that since the PW.2 had taken hand loan of Rs.500/- on previously but did not return the same, therefore, when this being the fact the cheque was withheld. This is the explanation offered by the appellant.

55. Further it is made allegation that PW.2 had wreaking the vengeance such false complaint is filed. Therefore, on careful analysis of this explanation and also the deposition of PW.2 in the course of cross-examination recorded on 07.04.2010, both these are found to be false one. Except the receipt of Rs.500/- from the PW.2. the appellant/accused in his explanation had also stated that he has withheld the cheque but stating that the PW.2 had not repaid the hand loan to him. Therefore, where there are two versions when the appellant/accused had received the repayment of hand loan from PW.2 and another version that the appellant/accsued has received the bribe amount of Rs.500/- but the common factor is that the appellant/accsued had received Rs.500/- but reason assigned by the appellant/accsued in his explanation and 66 also the deposition of PW.2 in the course of cross- examination that this repayment of hand loan amount cannot be believed and it is only cooked up story by the PW.2 and the appellant/accused in the explanation. Where the prosecution is able to prove the guilt by other evidences as discussed above from the evidence of PWs.1 to 3 and also from the police officials PWs.10 and 11 that the appellant/accused has made demand of bribe amount of Rs.500/- and in this regard complaint Ex.P.16 was lodged and PWs.1 and 2 they have stated that appellant/accused had demanded bribe amount what is recorded in the tape recorder conversation and then PW.1 has witnessed that the appellant/accused has received the amount from PW.2 in the hotel. Therefore, all these carries more weightage than explanation offered by the appellant/accused as per Ex.P.8 and simultaneously the deposition in the course of cross-examination of PW.2 recorded on 07.04.2010 is found to be false one as PW.2 was won over as it can be inferred from analysing the 67 entire evidences on record and the entire evidences are taken into consideration with cumulatively. Therefore, in this regard, the prosecution is able to prove the guilt of the appellant/accused that the appellant/accused has committed the offence as alleged and accordingly the Special Court has rightly convicted the appellant/accused and which is found to be justifiable, there is no need to interfere with the judgment of conviction and order on sentence.

56. Considering the judgment relied upon by the learned counsel for the appellant/accused in M.R.Purushotham's case stated supra, in the above cited case the fact is that complainant (PW1) had completely turned hostile towards the prosecution case. Therefore, there was no corroboration from other evidence also that the accused therein had demanded bribe amount and just mere acceptance of amount cannot be constitute the offence under the P.C.Act. Therefore, in those factual matrix and evidence the accused was acquitted. But in 68 the present case, the PW.2 had not turned hostile towards the prosecution case. PW.2 had completely supported the case of the prosecution in examination-in-chief then after more than two months when the cross-examination was conducted the PW.2 had completely resiled. Therefore, when these two versions are there exactly opposite to each other and the portion of the evidence of PW.2 what is deposed in the examination-in-chief is found to be corroborated by the evidence of PWs.1 and 3 and also from the evidence of PWs.10 and 11. Therefore, it makes difference in the factual matrix involved in the present case as that of the factual matrix in the above cited judgment. Therefore, with great honour the judgment relied upon by the learned counsel for the appellant/accused it is to be said that it is not helpful in favour of the appellant.

57. Furthermore, a presumption as per Section 20 of the PC Act can be raised against the public servant who accepts any undue advantage. Section 20 reads as follows: 69

"20. Presumption where public servant accepts any undue advantage. - Where, in any trial of an offence punishable under section 7 or section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary to proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11."

58. The frame used in Section 20 is, 'it shall be presumed'. It means, the Court is bound to take the fact as proved for such and such offence is committed under this Act until a particular evidence is adduced to disprove the same and the party interested in disproving the case of the prosecution, then the party disproving must produce such evidence to disprove the fact as stated by the prosecution. Therefore, initially it is the burden on the prosecution to prove the theory of demand, acceptance and such demand and acceptance is in respect of the 70 pending work of the complainant. When it is so established by the prosecution, then the onus shifts on the accused to disprove the same and in such an event if the accused is able to disprove the same, then the benefit of presumption cannot be given in favour of the prosecution. This rebuttal of presumption can be made at any stage of the case even during the course of investigation and during the trial. During the course of investigation, appellant/accused has admitted saying by giving explanation as per Ex.P8, but it does not disprove the case of the prosecution rather than the said explanation fortify the case of the prosecution. Further, during the course of trial when incriminating circumstances put to appellant/accused after completion of evidence of the prosecution, appellant/accused has not placed any documents disproving the case of the prosecution and simply denied the prosecution case. Therefore, for rebutting said prosecution case, he has not made any attempt to produce probable evidence before the 71 Court. Therefore, rightly a presumption can be attributed in favour of the prosecution as per Section 20 of the PC Act.

59. Therefore, upon overhauling the prosecution side evidences and upon making proper analysis and appreciation of the evidences as discussed above, the prosecution is able to prove the guilt of the appellant/accused beyond reasonable doubt for the offences charge levelled against him and therefore, the appeal is found to be devoid of merits, accepting the judgment of conviction. Hence, the appeal is liable to be dismissed, except on quantum of sentence.

60. Considering the submission made by the counsel for the appellant/accused that as on the date of lodging complaint (Ex.P16) the appellant/accused was 56 years old now as on this day 12 years have been lapsed therefore now the appellant/accused is running more than 68 years. Therefore submitted that the appellant/accused is now crossing more than 68 years and is at advanced 72 age therefore the imprisonment awarded by the Special Court is lengthy one and requested to reduce the same.

61. Further submitted that the appellant/accused is old age, suffering from old age ailments of arthritis, diabetic and blood pressure. Therefore, prayed to show leniency while awarding sentence. The Special Court has awarded maximum sentence of two years, has ordered the imprisonment shall run concurrently and therefore considering the factors that the appellant/accused is now aged 68 years and quite naturally he is suffering old age ailments as above stated. Therefore, I deem it fit to appropriate to reduce quantum of sentence and accordingly it is reduced to one and half years. The relief to the extent of quantum of sentence is liable to be allowed.

62. Therefore, it is ordered that the appellant/accused shall undergo simple imprisonment for a period of one and half year for the offence punishable 73 under Section 13(1)(d) read with Section 13(2) of the P.C.Act and since it is ordered the sentences awarded for the offence punishable under Section 7 of the P.C.Act is confirmed also shall run concurrently with the above said modified sentence. Hence, I proceed to pass the following:-

ORDER The Appeal is hereby allowed in part.

The judgment of conviction dated 06.07.2012 passed in Special Case No.140/2009 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988, by the Principal Sessions Judge, Gulbarga is hereby confirmed.

The order on sentence recorded against the appellant/accused to undergo simple imprisonment for a period of six months for the offence punishable under Section 7 of the Prevention of Corruption Act along with imposing fine with default clause is hereby confirmed.

Further the order on sentence imposing simple imprisonment for the offence punishable under 74 Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act is hereby modified and the quantum of sentence is reduced to one and half year from two years of simple imprisonment, to this extent the order of sentence is modified.

The modified sentence as above stated the appellant/accused to undergo simple imprisonment for a period of one and half year for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and sentence of imprisonment for a period of six months for the offence punishable under Section 7 of the Prevention of Corruption Act, shall run concurrently.

The other part of sentences, are kept intact.

SD/-

JUDGE sn/LG

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Karnataka High Court