Rajasthan High Court - Jodhpur
Dr Rajkumar vs State on 31 May, 2023
Author: Farjand Ali
Bench: Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 565/2017
Dr. Rajkumar Agarwal S/o Sh. Hari Kishan Agarwal, Resident Of
House No. 52 B-Block Sri Karanpur, District Sriganganagar.
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr. B.S. Rathore
For Respondent(s) : Mr. Javed Gauri, PP
HON'BLE MR. JUSTICE FARJAND ALI
Judgment
RESERVED ON ::: 22/03/2023
PRONOUNCED ON ::: 31/05/2023
BY THE COURT:-
1. The instant criminal appeal has been preferred by the appellant under Section 374 Cr.P.C. against the judgment dated 13.04.2017 passed by the learned Session Judge, Special Court, Prevention of Corruption Act Cases, Sri Ganganagar in Sessions Case No. (36/09) 106/2013 whereby the accused-appellant was convicted for the offences under Section 13(1)(d) read with Section 13(2) and Section 7 of Prevention of Corruption Act, 1988 and was sentenced to suffer maximum punishment of two years' simple imprisonment along with fine of Rs. 10,000/- under Section 13(1)(d) read with Section 13(2) and one year simple imprisonment along with fine of Rs. 10,000/- for other offence under Section 7 of Prevention of Corruption Act, 1988. (Downloaded on 12/11/2023 at 01:16:09 AM)
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2. The brief facts of the case are that the complainant PW-14 Sohanlal submitted a written complaint Ex.P-5 before the Additional Superintendent of Police, Anti Corruption Bureau, Sri Ganganagar alleging therein that his mother's so called sister (Not a blood relative), Mrs. Sita Devi had undergone an operation in a government hospital, Suratgarh on 07.12.2007 where she was operated upon by Dr. Rajkumar Agarwal who is the appellant herein. The complainant claimed that Dr. Rajkumar had asked for Rs. 5000/- as illegal gratification, out of which Rs. 2500/- was given to him at the time of operation and then, he demanded the remaining amount from the complainant as his aunt was still admitted in the hospital. However, the complainant did not wish to illegally gratify Dr. Rajkumar and his wish was to ensure that he would be caught red-handed. He filed a complaint with the ACB, Outpost Sri Ganganagar for the same and a trap operation was planned in pursuance thereof.
3. As alleged, upon confidential verification of the facts mentioned in the application through the tape recording, it was revealed that Dr. Rajkumar had received Rs. 1000/- at the time when the alleged recording was made and he further demanded the remaining amount of Rs. 1500/- as illegal gratification. It is alleged that as per the tape recording, the demand of bribe was verified and a transcript of the audio recording was prepared and the cassette was seized & sealed.
4. On the basis of the above-mentioned written complaint, trap proceeding was carried out on 12.12.2007. During the course of (Downloaded on 12/11/2023 at 01:16:09 AM) (3 of 47) [CRLA-565/2017] the trap proceeding, after receiving the agreed signal from the complainant, the Additional Superintendent of Police entered the room of Dr. Rajkumar along with two witnesses. He found a person sitting on a chair and when he asked the person his name, he replied to the officer that he is known as Dr. Rajkumar Agarwal. It is alleged that the hands of the accused were washed by the members of the ACB in a solution of sodium carbonate upon which his hands turned pink. On further search being made, Rs. 1500/- were recovered from the drawer of the table lying there. After conducting usual investigation, a charge-sheet for offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act (hereinafter referred to as the 'Act') was submitted.
5. In order to buttress its case, the prosecution examined fourteen witnesses and produced thirty three documents in evidence. Upon being examined under Section 313 Cr.P.C the accused denied the case of the prosecution and submitted that he neither demanded nor accepted any bribe from the complainant. In respect of his claim, two witnesses were examined in defence. After going through oral and documentary evidence, the learned Judge convicted the appellant vide judgment dated 13.04.2017. Hence, this criminal appeal has been filed before this Court.
6. Learned counsel for the accused-appellant has submitted that the appellant has not committed any offence and a false case has been foisted upon him grudgefully. Further, the recovery was also not proved to have been effected from the appellant as the (Downloaded on 12/11/2023 at 01:16:09 AM) (4 of 47) [CRLA-565/2017] notes were recovered from the drawer of the table and not from the conscious possession of the appellant. It is further submitted that there was no work pending with the appellant doctor on the alleged date of recovery as the operation had been conducted on 07.12.2007 and the trap proceedings were carried out on 12.12.2007. It has been submitted that the appellant had to do nothing as the operation had already been carried out and neither did he have any motive to demand bribe nor was there any occasion for the complainant to give the same. This makes the entire case of the prosecution about the demand extremely doubtful. It is submitted that this version, as put forth by the complainant, has not even been supported by his aunt, DW-02 Sita Devi, who was the patient getting operated BY Dr. Rajkumar. He further submitted that there is no evidence of demand of illegal gratification by the appellant except in the transcript. It is argued that the story set out by the prosecution does not inspire confidence and the case of prosecution was not proved beyond every shadow of reasonable doubt. It is also urged that the proof of demand and gratification of gratification by a public servant is a sine qua non for proving the commission of offences punishable under Sections 7 of the Act.
7. Arguing further, it is submitted that the appellant is liable to be acquitted as the audio transcript relied upon by the prosecution, being copy of the electronic evidence, not admissible in evidence in absence of the certificate under Section 65-B of the Evidence Act and thus, the Trial Court erred in relying upon them. (Downloaded on 12/11/2023 at 01:16:09 AM)
(5 of 47) [CRLA-565/2017] He submits that the prosecution-sanction was not granted in accordance with law, moreover, the evidence on record was not sufficient to establish the facts of demand and acceptance of bribe. Lastly, it is submitted that the finding of the trial Court is based on surmises and conjectures and thus, the same deserves to e quashed and set aside.
8. Per contra, learned Public Prosecutor has opposed the submissions made on behalf of the appellant and submitted that the learned Court below has rightly passed the impugned judgement of conviction after looking into the overall facts and circumstances of the case and the pieces of evidence placed on record before it.
9. Heard learned counsel for both the parties and perused the impugned judgment rendered by the Special Court as well as other evidence available on record.
10. From the fact of framing of charge in this case, it is precisely indicated that the trial began with the allegation that Mrs. Sita Devi was admitted for surgery at the State Hospital, Suratgarh which was done on 07.12.2007 by Dr. Rajkumar who is the accused in the present case and he had asked for a bribe of Rs. 5,000/- for carrying out the operation smoothly; out of which, Rs. 2,500/- were paid at the time of admission of the patient to the hospital; Rs. 1,000 were paid at the time when a tape recording was made by the complainant and Rs. 1,500/- were finally recovered from a drawer in his house when the trap proceedings were conducted in pursuance of the complaint filed by PW-14 (Downloaded on 12/11/2023 at 01:16:09 AM) (6 of 47) [CRLA-565/2017] Sohanlal with the ACB and after verification of the tape recording and thus, a case of commission of offence under Section 7 and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act began against the accused.
11. This court, being the first appellate court, is supposed to re- appreciate the judgment of conviction and thus, the evidence brought on record by the prosecution in the trial has been carefully scanned so as to examine both legal and factual aspects of the matter.
12. After wading through the material available on record, a few points worth discussing can be culled out through which it is to be seen whether the prosecution has succeeded in proving the offences under Section 7 and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act beyond reasonable doubt. These points have been discussed in the succeeding paragraphs:
A) Relationship between the complainant PW-14 Sohanlal and the patient DW-2 Mrs. Sita Devi:
13. A relationship exists between two persons and it is a two-way concern. It is not a relationship if only one person is invested in it. PW-14 stated in his testimony that he is the son of the so-called sister of DW-2, however, DW-2 sharply denied this fact and stated that she did not even know any person named Sohanlal. She was very clear about the fact that neither did she have any such sister nor did she know the complainant rather she asserted that her family and her sons were competent to look after her which connotes that she did not have any reason to seek help from the (Downloaded on 12/11/2023 at 01:16:09 AM) (7 of 47) [CRLA-565/2017] complainant. If one of the persons is refusing from even knowing the other, it is common wit that no relationship between the two was existing. In such a scenario, the person asserting the fact of existence of relationship has to produce evidence in support of his claim that they actually had a relationship which PW-14 has not done in the present case.
14. If a person is a relative of the other, then the other should have acknowledged it and if the other denies such relations, then the onus would be upon the first person to establish the fact by placing appropriate oral or documentary evidence in this regard, however, no such task has been undertaken in this case. No document or any other piece of evidence endorsing the same has been adduced by the complainant. Although DW-2 has stated, in unambiguous terms, that she did not know the complainant yet for the purpose of satisfaction, this Court carefully scanned the record of the case and it is emanating that there is not even a single paper where the name of the complainant has been shown as the relative of Mrs. Sita Devi. DW-2 also deposed that the complainant belongs to a different caste (Kumhar) and she belongs to a different caste (Brahmin), thus, the fact of relationship does not stand proved in the instant case form any angle and the beginning of the case itself is marred by falsehood. The untrue statement made by the star witness in this regard carries with it an undercurrent of either malice or prejudice so as to wreak vengeance upon the appellant.
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15. The very fact that the patient herself and her husband DW - 1 did not know any person named Sohanlal rather DW-1 has explicitly expressed that his family was very well capable of looking after his wife destroys the premise that the complainant was someone who was concerned with the operation of DW-2 and who had to pay a certain amount of bribe to the doctor for the operation of DW2. If the case of the prosecution is to be believed, then it is highly suspicious that the husband of the patient did not know about the fact of exchange of bribe as well as about the fact that the complainant had filed a complaint against the doctor operating on his wife for the offence of taking bribe. The cluelessness of this witness as well as his wife cast a shadow of grave uncertainty, that engulfed the entire stance of the prosecution. It is not comprehensible as to why an individual who is not even known to the patient is concerned with her operation to the extent that he would pay an amount of bribe to the doctor operating on her, file a complaint and be a part of trap proceedings against the said doctor in view of the fact that it has been made clear by this witness in his deposition that he and his family were capable and well-equipped to take care of his wife. B) Demand of Rs. 2,500/- at the time of admission of the patient:
16. At the outset, there are certain question marks apparent in the story of the prosecution, namely, when did Sohanlal pay the amount of Rs. 2,500/- to the doctor (date and time); where was the said payment made; whether the payment was made in the (Downloaded on 12/11/2023 at 01:16:09 AM) (9 of 47) [CRLA-565/2017] outdoors or indoors, in the hospital or at his residence or someplace else; who gave the money to the complainant to make the payment of Rs. 2,500/- to the doctor at the time of admission;
whether it was the husband of the patient who supplied the complainant with the money allegedly paid to the doctor or he paid the same out of his own pocket.
17. If it is assumed for a moment that the demand of Rs. 5,000 was made and the complainant paid half of the amount to the doctor already, then the question arises as to why was he unwilling to pay the rest of the amount. It is ordinary human conduct that if a certain amount of bribe has been agreed to be paid between two parties in exchange for committing an act or abstaining from committing an act and part payment has already been made, then the rest of the payment would also follow. It leads this court to wonder what changed in the circumstances that led the complainant to cop out from the original deal and make a complaint against the appellant.
18. Sohanlal made material improvement with regard to demand of bribe. In the written complaint submitted on the first occasion to the Additional Superintendent of Police, ACB (Ex. P-5) on 11.12.2007, he stated that Dr. Rajkumar had demanded Rs. 5,000/- for conducting the operation and for good treatment of the patient out of which he had paid Rs. 2,500/- and no reason was mentioned that would have compelled him to make the rest of the payment or the time when the rest of the payment was to be made, howbeit, in his testimony before the court on 04.05.2016, (Downloaded on 12/11/2023 at 01:16:09 AM) (10 of 47) [CRLA-565/2017] he stated that the rest of the money, i.e. Rs. 2,500/-, was demanded in lieu of discharging the patient from the hospital. This modification was made at a later stage of the case and the same does not find place in the first document submitted by the complainant to the ACB. A doubt arises on the testimony of Sohanlal as to why he changed his stance at a later stage and did not reveal the proper facts with the details that were intrinsic to the matter from the very beginning and the fact of demand of bribe by Dr. Rajkumar as well as the fact of part payment do not stand proved beyond reasonable doubt. Usually, when an agreement to make a payment is made in respect of any work, the amount, time and mode of payment are pre-decided. In this case, it was not mentioned that when was the rest of the payment of Rs. 2,500/- was to be made by the complainant.
19. It can be understood in common parlance that if any amount for treatment and due care by the doctor is to be given then certainly the amount would be paid by the patient and his/her/their family members. Here, in this case, both the patient and her husband were examined as DW-1 and DW-2 and they did not verify the fact of paying of Rs. 2,500/- and on the contrary, they have specifically denied the fact of demand of bribe altogether by the appellant.
C) Demand and acceptance of illegal gratification:
20. From a bare reading of the entire evidence, oral or documentary, it is nowhere emanating that the demand of illegal gratification was made by the appellant except from the (Downloaded on 12/11/2023 at 01:16:09 AM) (11 of 47) [CRLA-565/2017] statements of PW-14 Sohanlal who is the complainant of the case and the recording of the alleged conversation and the transcript placed on record.
I. Transcript placed on record:
a) Testimony of PW-11:
21. Taking the tape recording and the transcript of the same first, it is to be ascertained whether these are pieces of evidence that could prove the fact of demand. The testimony of PW-11, who was the then Deputy Superintendent of Police, ACB, Sri Ganganagar and was investigating the case, is important to look at in this regard. He stated in his cross-examination that Ex.P-9 which is the transcript of the alleged conversation did not contain the fact that the accused had asked for a bribe in exchange for operating upon the patient. It was further stated in his cross-examination that neither he investigated who wrote the transcript nor did he listen to the recording contained in the cassette. PW-11 did not even listen to the cassette and did not investigate who wrote the transcript, therefore, the worthiness of this evidence in view of the deficiencies discussed above stands on shabby ground. It is not revealing from the transcript (Ex P-9) that the accused asked for a bribe which is one of the essential ingredients to constitute the offence as envisaged under Section 7 of PoCA.
b) Taking the paraphernalia concerned with conduct of a trap from the malkhana:
22. Karan Singh, who was the Malkhana In-charge of the concerned Police Station on 12.12.2007, was examined as PW-4 in (Downloaded on 12/11/2023 at 01:16:09 AM) (12 of 47) [CRLA-565/2017] the trial and he admitted in his cross-examination that on the day of the trap, the necessary endorsement regarding dispatch or handing over of the trap box to the concerned officer was not mentioned in the Malkhana Register which has been attached to the record as Ex.P-3. He also admitted that it is not even mentioned that whether the trap box was sent along with the trap team or not, thus, the fact that the trap team carried the trap box along with them is not recorded in the Malkhana register, therefore, a question mark is looming over the manner in which the trap proceedings were conducted and it cannot be said with certainty that the trap proceedings were properly carried out without any flaws and latches. As it is mandatory in law to make the entries in the malkhana register which was not done in the present case, a serious doubt is cast on the very fact that whether trap proceedings were conducted on the alleged day or not. The tools like tape recorder, phenolphthalein powder, cassette etc. which are required to conduct the trap proceedings were not taken from the malkhana. In this view of the matter, the fact that the trap proceedings were conducted is not believable as the trap team was not equipped with the material required to conduct the trap.
c) Admissibility of electronic evidence of tape recording:
23. The tape recording is an evidence in electronic form which attracts application of Section 65-B of the Evidence Act. It is the mandate of Section 65-B that any information contained in an electronic record shall be admissible in any proceedings without (Downloaded on 12/11/2023 at 01:16:09 AM) (13 of 47) [CRLA-565/2017] further proof or production of the original if the conditions mentioned in the provision are satisfied and the evidence is accompanied with a certificate as per this provision. It is the case of the prosecution that the appellant demanded Rs.5,000/- from one Sohanlal for the operation of Mrs. Sita Devi; half of the amount was paid to him on the day of the operation and the accused was pressing for the remaining amount. It is the allegation that when the agency went through the tape recording, the aforesaid facts were verified and it was found that the appellant received Rs. 1,000/- at the time of verification and further, an amount of Rs.1,500 was remaining to be paid as illegal gratification. But it is apparent from the record of the file that the prosecution did not submit the certificate required under Section 65-B of Evidence Act along with the original tape recorder which was used to make the voice recording at the relevant time.
24. Section 65-A states that the contents of electronic records are to be proved as per Section 65-B which means that the certificate issued under Section 65-B is required in the present case with regard to the contents of the tape recording on the basis of which the decision to conduct the trap proceedings was taken. Section 65-B is reproduced herein below for ready reference:
65B. Admissibility of electronic records. --
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any (Downloaded on 12/11/2023 at 01:16:09 AM) (14 of 47) [CRLA-565/2017] proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: --
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, (Downloaded on 12/11/2023 at 01:16:09 AM) (15 of 47) [CRLA-565/2017] all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, --
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-
section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, --
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
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(16 of 47) [CRLA-565/2017] Explanation. --For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.
25. Now, it is considered necessary to refer to the judicial pronouncements of Hon'ble the Supreme Court on the subject of admissibility of electronic evidence as envisaged under Section 65- B of the Indian Evidence Act.
26. The requirement of the certificate is mandated by Section 65- B of the Indian Evidence Act as well as the landmark judgement passed by Hon'ble the Apex Court in the case of Anvar P.V. Vs. P.K. Basheer reported in AIR 2015 SC 180. It is stated therein that source and authenticity are the two hallmarks that are to be taken into account when an electronic record is sought to be used as evidence. In order to use an electronic record as proof against an accused, it is necessary that the requirements of Section 65-B are complied with before oral evidence pertaining to electronic record can be considered.
27. In the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors. reported in AIR 2020 SC 4908, Hon'ble the Supreme Court has held that the judgment passed in Anvar P.V. (supra) has been declared to be the law on Section 65-B of the Indian Evidence Act and admissibility takes precedence over relevancy when it comes to consideration of electronic evidence. The relevant part of the judgment has been reproduced herein below:
"75. Documentary evidence, in contrast to oral evidence, is required to pass through certain check posts, such as (i) admissibility (ii) relevancy and (Downloaded on 12/11/2023 at 01:16:09 AM) (17 of 47) [CRLA-565/2017]
(iii) proof, before it is allowed entry into the sanctum. Many times, it is difficult to identify which of these check posts is required to be passed first, which to be passed next and which to be passed later. Sometimes, at least in practice, the sequence in which evidence has to go through these three check posts, changes. Generally and theoretically, admissibility depends on relevancy. Under Section 136 of the Evidence Act, relevancy must be established before admissibility can be dealt with.
Therefore if we go by Section 136, a party should first show relevancy, making it the first check post and admissibility the second one. But some documents, such as those indicated in Section 68 of the Evidence Act, which pass the first check post of relevancy and the second check post of admissibility may be of no value unless the attesting witness is examined. Proof of execution of such documents, in a manner established by law, thus constitutes the third check post. Here again, proof of execution stands on a different footing than proof of contents.
76. It must also be noted that whatever is relevant may not always be admissible, if the law imposes certain conditions. For instance, a document, whose contents are relevant, may not be admissible, if it is a document requiring stamping and registration, but had not been duly stamped and registered. In other words, if admissibility is the cart, relevancy is the horse, under Section 136. But certain provisions of law place the cart before the horse and Section 65B appears to be one of them.
.
.
.
.
81. But Section 65B makes the admissibility of the information contained in the electronic record subject to certain conditions, including certification. The certification is for the purpose of proving that the information which constitutes the computer output was produced by a computer which was used regularly to store or process information and that the information so derived was regularly fed into the computer in the ordinary course of the said activities.
.
83. But Section 65B(1) starts with a non-obstante Clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65A and 65B, if read together, mix-up both proof (Downloaded on 12/11/2023 at 01:16:09 AM) (18 of 47) [CRLA-565/2017] and admissibility, but not talk about relevancy. Section 65A refers to the procedure prescribed in Section 65B, for the purpose of proving the contents of electronic records, but Section 65B speaks entirely about the preconditions for admissibility. As a result, Section 65B places admissibility as the first or the outermost check post, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled.
84. The placement by Section 65B, of admissibility as the first or the border check post, coupled with the fact that a number of 'computer systems' (as defined in Section 2(l) of the Information Technology Act, 2000) owned by different individuals, may get involved in the production of an electronic record, with the 'originator' (as defined in Section 2(za) of the Information Technology Act, 2000) being different from the recipients or the sharers, has created lot of acrimony behind Section 65B, which is evident from the judicial opinion swinging like a pendulum."
28. The prosecution has made the transcript of the tape recording which was the warp and woof of their case yet the same was not sent for FSL and was not even listened to by the investigating officer; even the ASP, ACB who conducted the raid did not verify the fact that whether it was actually Dr. Rajkumar who was the person other than the complainant or it was someone else. There was no one present when the alleged tape recording was being made, only the complainant went and recorded the same and submitted it to the ACB. There is no audio cassette of the said tape recording on the record.
29. As discussed before, demand is the main ingredient using which the whole recipe of the offence of taking bribe under Section 7 of the Prevention of Corruption Act comes together and owing to the lack of fulfillment of requirement of certificate under (Downloaded on 12/11/2023 at 01:16:09 AM) (19 of 47) [CRLA-565/2017] Section 65-B of the Evidence Act, the evidence of the tape recording cannot be made admissible and the fact of demand remains unestablished on this count.
II. Solitary Testimony of PW-14 Sohanlal
30. Now, the fact remains that except Sohanlal, there is no other person to corroborate the fact that demand was ever made by the appellant. The law in this regard is very clear that evidence of a solitary witness can be made basis for a conviction provided that the testimony of the witness is credible and trustworthy and in case it is not reliable enough or some doubt is appearing on his conduct and statement, then it is imperative for the court to look for a corroboration before reaching to a conclusion of guilt. Section 134 of the Indian Evidence Act stipulates that no particular number of witnesses is required to prove any fact which simply means that the quality of evidence is more important than the quantity of evidence. It is crystal clear that the testimony of a single witness cannot be relied upon while passing a judgment of conviction if the same is not of impeccable quality and of sterling worth. There should be no wiggle room for any doubt while assessing the credibility of a sole witness. The testimony of a solitary witness can be considered even if there is no material to corroborate the same but the condition precedent for such consideration would be that his testimony is absolutely reliable, clinching and free from all doubt.
31. Now, it is to be seen that whether he is a reliable witness and whether his testimony is unimpeachable and clinching. In (Downloaded on 12/11/2023 at 01:16:09 AM) (20 of 47) [CRLA-565/2017] furtherance of some of the aspects discussed above, including that Sohanlal lied about the fact of his relationship with the patient and that Ex. P-5 which is the complaint made at the first instance does not mention that the remaining amount of illegal gratification is to be paid in order to get the patient discharged, it is indicated that the testimony of Sohanlal is not worthy of reliance. The subject of the crime is DW-2 for whose operation the demand is alleged to have been made but she refuted and negated the story set out by PW-14 and as stated above, she expressed that the PW-14 does not even belong to her caste. Moreover, nobody saw the exact exchange taking place; it was the complainant himself who pointed at the drawer and told the team that the money was lying therein. It is surprising that after the operation has been conducted and a certain amount has already been paid by the complainant as per the case of the prosecution, then why would the complainant be compelled to pay the rest of the amount as there was no pressure on him to do so.
32. Here, it is important to mention the testimony of DW-1 Navrang Lal who happens to be the husband of the patient. He candidly admitted in his statement recorded before the trial court that he met Dr. Rajkumar around one year ago and started taking treatment for his wife from him; the treatment went on for almost a year. The operation was successful and about four-five days after the operation, when he came to the hospital to meet his wife, she (Sita devi) told him that there was a discussion going on in the hospital that some person has falsely implicated Dr. (Downloaded on 12/11/2023 at 01:16:09 AM) (21 of 47) [CRLA-565/2017] Rajkumar in connection of her operation. The same is reflecting from the statement of the wife as well. After that, they were called by the Anti-Corruption Bureau. They went to the ACB office upon which the officer asked them that how much money did Dr. Rajumar ask for from them to which they replied that neither the doctor had asked them for money nor did they had any complain regarding the services of the doctor. When the officer told him that one Sohanlal persuaded the Bureau by filing a complaint with regard to the surgery of DW-2 and demand of bribe in relation thereto, then in response, he specifically said that he did not know anyone by the name of Sohanlal. It was also mentioned in the statement of DW-1 Navrang Lal that Dr. Rajkumar was well known to him and he never asked for any gratification in lieu of his services. The extended family of this witness has been living in Suratgarh since 1967 and his family was very well capable of taking care of Mrs. Sita Devi. He forthrightly denied the suggestion made in his cross-examination that Mr. Sohanlal was instrumental in getting admission of patient Sita Devi in the concerned hospital, thus, the testimony of the complainant does not inspire confidence in light of the testimonies of DW-1 and DW- 2 who were actually concerned with the issue and were the sufferers.
33. It is considered important to reiterate the law on the point of evidence of solitary witness. As per law, no particular number of witnesses is required to prove any fact; what is, in fact, required to prove any fact is quality of evidence not the quantity, yet, the (Downloaded on 12/11/2023 at 01:16:09 AM) (22 of 47) [CRLA-565/2017] demand of rule of prudence would be that when the entire case of prosecution hinges upon the evidence of a solitary witness then the evidence of that solitary witness must be of stellar worth, free from all doubts, unassailable and of exemplary quality, leaving no leeway to place any doubt upon his credibility and trustworthiness because on the strength of his deposition only, a man may be put into dungeons and his personal liberty may be compromised, therefore, before basing conviction of an accused on the strength of sole testimony of a witness, due care and caution as well as scrutiny and critical appreciation are a must.
34. The deposition of the complainant PW-14 on whose testimony alone the entire case of the prosecution is based; is riddled with so many dents and contraventions that a conviction cannot be based on the testimony of such an unreliable and untrustworthy witness.
35. It has come on record and is apparent from the explanation furnished by the accused under Section 313 CrPC that there was a personal grudge in between the appellant and the complainant Sohanlal. A perusal of the reply given by the accused-appellant to the questions asked by the court under Section 313 CrPC reveals that the witness PW-14 Sohanlal was running an unauthorised medical shop in village Birmana near Suratgarh and upon learning about the same, the appellant took initiative and made a complaint as a consequence of which PW-14 had to shut down the shop, thus, it can safely be inferred that there was an inimical relationship between the appellant and the complainant from (Downloaded on 12/11/2023 at 01:16:09 AM) (23 of 47) [CRLA-565/2017] before. The law in this regard is very much clear that the evidnece of a witness having an inimical relationship or a witness who is highly interested in seeing the opponent getting convicted must be scrutinised with great care and caution.
36. The sum and substance of the caption would be that serious infirmities and contradictions have been noticed in the statement of the sole witness, the persons concerned are not corroborating or supporting his stand on the contrary, they are refuting and outrightly rejecting his allegation, he is belied on the aspect of his relation with the patient and her family, he failed to convince as to when the part payment was made as well as the fact that he was having an inimical relation with the appellant persuading this court not to rely upon his testimony. In light of the above facts, it is felt that basing conviction of the appellant on the solitary testimony of PW-14 would not be safe and just.
D) No work was pending.
37. After completion of the work and further passing of a period of 4-5 days post completion (post-surgery), it is quite impossible for any person to demand bribe for completion of the same task. For instance, in the present case, when the operation had already been conducted, then, there remains no reason for the doctor to demand bribe on the count that the patient be rest assured that the operation will be conducted with due care and caution. The patient herself and her husband distinctly stated that no demand of bribe was made from them, thus, it is another ground that (Downloaded on 12/11/2023 at 01:16:09 AM) (24 of 47) [CRLA-565/2017] supports the unworthiness of the testimony of Sohanlal as well as puts the case of the prosecution under a cloud of doubt.
38. Dr. Indra Kumar, PW-10, who was Medical Officer, State Hospital, Suratgarh, apprised to the learned trial court that the operation of Ms. Sita Devi was conducted on 07.12.2207 and after that there was no work pending related to her operation. He further deposed that if a patient is seeking counsel from the doctor at his residence/clinic, then the doctor can charge fees for the same. Thus, in addition to the testimonies of the defence witnesses, this witness also confirms that there was no work pending with the doctor.
E) Payment/ acceptance of bribe by the accused-appellant and its recovery:
39. There is not even a single witness who stated that PW-14 Sohanlal made the payment of the bribe amount to the accused appellant at the time of trap proceeding except Sohanlal himself whose testimony cannot be considered reliable in view of the observations made above. Now, for evaluating this aspect, this Court went through the facts stated by the witness Sohanlal in his examination-in-chief and the part where he described the point when the recovery was effected from the drawer during the trap proceedings is reproduced below for emphasis:
"मैंने डॉक्टर साहब से बातचीत की। डॉक्टर साहब से मैंने कहा कि मौसी को छु ट्टी दे दो तो डॉक्टर साहब ने कहा कि बाकी पैसे दे दो तो मैंने पंद्रह सौ रुपये दे दिये। डॉक्टर साहब ने पैसे दराज मे रख दिए । फिर मैंने बाहर आकर इशारा कर दिया और सारी टीम अंदर आ गयी । मैंने साहब को साहब को डॉक्टर राजकुमार यही हैं और मैंने बताया कि पैसे दराज में हैं । फिर डॉक्टर साहब से दराज पैसे निकलवाए ।" (Downloaded on 12/11/2023 at 01:16:09 AM)
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40. It is reflecting from his testimony that he went inside the room, stayed there for some time, came out and signalled the police to come inside, told the police that the person standing inside was Dr. Rajkumar and that the amount of illegal gratification paid to Dr. Rajkumar was kept in the drawer of the table lying in the room. It is Sohanlal who made the disclosure regarding where the money was kept inside the room. It has not been told by any one that the appellant accepted the amount and after taking the notes, put the same in the drawer of the table. The reliability of this witness, as stated above, is tainted with doubts, thus, the whole process of recovery also comes under a veil of uncertainty.
41. Additionally, the appellant has explained in his statement under Section 313 CrPC that the money might have been put into the drawer by the complainant himself or he managed to put it in the drawer through someone else in his absence or behind his back. When it comes to the recovery of certain things, it has to be made from the exclusive and conscious possession of the accused as the same has not been done in the instant case, the fact of recovery is not proved.
42. It would be worthwhile to mention here that none of the prosecution witnesses have deposed that they saw the appellant accepting the money and putting the same in the drawer and as such, the fact of vital importance depends upon the worth of solitary testimony of Sohanlal PW-14.
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43. When the discussion is being made on the explanation under Section 313 of CrPC, it is considered necessary to address another thing which drew the attention of this court. It is further stated in the explanation that the complainant used to run a medical shop at the village Birmana in Suratgarh but as he did not have the requisite drug license for running the medical store, a complaint was made by Dr. Rajkumar, upon which his license was cancelled and he had to close the medical shop and as a consequence of which, he started harbouring ill feelings towards the accused. This reveals that there was a cause based out of malicious intention due to which the complainant instituted a false case against the accused. The explanation under Section 313 is not sought to fulfil a mere formality and it cannot be ignored. The law in this regard has been discussed and summarised well in a recent ruling passed by Hon'ble the Apex Court in Premchand Vs. State of Maharashtra in Criminal Appeal No. 211 of 2023 vide judgment dated 03.03.2023. The relevant paragraphs of the same are reproduced below:
"15. What follows from these authorities may briefly be summarized thus:
a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable safeguard in the trial process for the accused to establish his innocence;
b. section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him;
c. when questioned, the accused may not admit his involvement at all and choose to flatly deny or (Downloaded on 12/11/2023 at 01:16:09 AM) (27 of 47) [CRLA-565/2017] outrightly repudiate whatever is put to him by the court;
d. the accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized defences;
e. an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him;
f. the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 statement(s);
g. statements of the accused in course of examination under section 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case;
h. statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission; and i. if the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements;
j. any failure to consider the accused's explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.
16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the (Downloaded on 12/11/2023 at 01:16:09 AM) (28 of 47) [CRLA-565/2017] accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like 'false', 'I don't know', 'incorrect', etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. A proper explanation of one's conduct or a version different from the prosecution version, without being obliged to face cross- examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. The exercise under section 313 instead of being ritualistic ought to be realistic in the sense that it should be the means for securing the ends of justice; instead of an aimless effort, the means towards the end should be purposeful. Indeed, it is optional for the accused to explain the circumstances put to him under section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility.
17. Once a written statement is filed by the accused under sub- section (5) of section 313, Cr. P.C. and the court marks it as an exhibit, such statement must be treated as part of the accused's statement under sub-section (1) read with sub-section (4) thereof.
In view of the latter sub-section, the written statement has to be considered in the light of the evidence led by the prosecution to (Downloaded on 12/11/2023 at 01:16:09 AM) (29 of 47) [CRLA-565/2017] appreciate the truthfulness or otherwise of such case and the contents of such statement weighed with the probabilities of the case either in favour of the accused or against him."
(Emphasis Supplied)
44. The statement of appellant under Section 313 of CrPC seems to be more closer to the truth than the testimony of the star witness PW-14. As held in Premchand (supra), if the contents of the statement of the accused are considered in light of the evidence led by the prosecution and an attempt is made to ascertain the truthfulness or untruthfulness of the case, it is revealed that the probabilities of the case are in favour of the accused and not against him. Since the intention of the complainant is malicious, thus, it becomes the reason for the complainant to file a false case against the accused and the stance of the accused seems to be more probable and nearer to what must have actually happened than the allegations levelled by the complainant. Although this is not such a situation but for the sake of justification, it is deemed appropriate to note down that as a settled principle of law, when two views are possible, the court should tend to accept the view favourable to the accused. F) Dissociation of phenolphthalein:
45. Phenolphthalein renders a pink hue upon dissociation and is an important tool in bribe trap cases. In the case at hand, the fingers of the accused turned pink and thus, it was concluded that he had indeed accepted the payment of bribe. But a key point is noticed in the statement of PW-14 Sohanlal which reveals a (Downloaded on 12/11/2023 at 01:16:09 AM) (30 of 47) [CRLA-565/2017] completely opposite fact. The relevant portion of his statement is reproduced again for ease of reference:
"फिर मैंने बाहर आकर इशारा कर दिया और सारी टीम अंदर आ गयी। मैंने साहब को साहब को डॉक्टर राजकुमार यही हैं और मैंने बताया कि पैसे दराज में हैं । फिर डॉक्टर साहब से दराज पैसे निकलवाए ।"
(Emphasis Supplied)
46. In light of the above lines deposed by the star witness PW-14, it is more than obvious that his hands would turn pink as he was asked to take out the tainted money from the drawer. It cannot be said with certainty whether the fingers of the accused turned pink because he accepted the bribe and kept the tainted money in the drawer or they turned pink because he took out the tainted money from the drawer upon insistence by complainant and the trap team. It is also worth considering that neither did the I.O. take out the money himself nor did he ask the independent witnesses to do so rather the accused was asked to take out the money from the drawer. Hence, the fact is not proved beyond reasonable doubt that the recovery was effected from the conscious and exclusive possession of the appellant. In this regard, the testimony of another witness is also contradictory to the testimony of the complainant as it is stated therein that he took out the money from the drawer at the time of recovery. These defects do not inspire the confidence of this court with regard to the fact of recovery and as a necessary corollary, the fact of the fingers of the accused turning pink is also not found proved.
47. The only evidence that goes against the accused is the fact that his fingers turned pink which is reflective of the fact that he (Downloaded on 12/11/2023 at 01:16:09 AM) (31 of 47) [CRLA-565/2017] held the tainted money in his hands upon instruction of the Trap Leading Officer but the same does not help the case of the prosecution so as to bring home the guilt of the accused in the backdrop of the fact that the complainant himself deposed that the doctor was asked to take out the money from the drawer at the time of recovery and thus, the recovery stands impaired. G) Deficiencies in the Investigation
48. As mentioned in the preceding paragraph, the accused was asked to take out the tainted money from the drawer and the I.O. allowed for the same to happen as a result of which the whole point of recovery gets vitiated.
49. Another shortcoming in the investigation is that PW-11 admitted the fact that the patient and her husband had told him during the investigation that they did not know Sohanlal at all; that Sohanlal did not help them in any way during the whole period of her treatment and operation; that the accused did not ask for any illegal gratification for the operation from them; that they were undergoing treatment with him for a period of four years; that their caste and the caste of the complainant were different and they were not related, thus, I.O. was well aware of all these aspects from the time of investigation and yet, he failed to conduct a proper inquiry into the facts of the case. The above- mentioned facts were not first-hand information, on the contrary, the I.O. knew these facts right from the point of investigation.
50. Yet another defect in the investigation was that the I.O. did not even listen to the cassette and did not investigate who wrote (Downloaded on 12/11/2023 at 01:16:09 AM) (32 of 47) [CRLA-565/2017] the transcript. It is not revealing from the transcript (Ex P-9) that the accused asked for a bribe which is one of the essential ingredients to constitute the offence as envisaged under Section 7 of PC Act, therefore, if the officer would have paid attention to the transcript then the investigation might have taken a different turn. Coming to the testimony of PW-6 Darshan Singh, an independent witness, it is emanating therefrom that it was he who took out the money from the drawer. Firstly, there is contradiction between the testimonies of Darshan Singh and Sohanlal on this point and as per Sohanlal, it was the accused who had taken out the money form the drawer. Secondly, if Darshan Singh claimed that he took out the money, as is done in bribe trap cases generally that the independent witness is made to recover the tainted money, then his hands should have also been tested for verifying if what he was deposing was actually true and to tighten the case of the prosecution.
51. It was never investigated that when, where and how was the payment of Rs. 2,500/- was made to the doctor.
52. As per the testimony of the Malkhana-in-charge PW-4, it is clear that there was no entry in the malkhana register regarding the box as well as the tools required to conduct the trap and it is not clear who took the trap box and on which date was the trap box taken. In such a situation, there is a serious doubt cast over the entire trap proceedings but this point was not investigated by the police.
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53. The worthiness of the whole investigation stands on shabby ground in view of the deficiencies discussed above. Owing to the material contradiction between the deposition of team members of the ACB, the decoy and the independent witnesses, it cannot be said that the investigation was conducted in a fair and honest manner.
H) Prosecution Sanction
54. The prosecution sanction (Ex. P-24) is not in accordance with law. It is not mentioned in Ex.P-24 about who perused the record of investigation and thereafter, applied mind for issuance of prosecution sanction. It is vaguely written in Ex.P-24 that after perusal, it was found by the government of Rajasthan that the offence was committed. Shiv Kumar Sharma, who was the Deputy Secretary to the government, was examined as PW-12 in the trial and he stated before the court that the Chief Minister granted the sanction and the perusal of the investigation report and other material was made by the Secretary to the State, however, no such fact is mentioned in Ex.P-24. There is a serious incongruency between Ex.P-24 and the statement of PW-12 given before the court. There is apparent difference between what was deposed and what was actually written on the sanction document. PW-12 did not depose that he had gone through the record, applied his mind and then issued the prosecution sanction. He admitted that he was the Deputy Secretary of the government and the removing authority of the appellant was not him but the Secretary to the State. He candidly admitted in his cross-examination that he (Downloaded on 12/11/2023 at 01:16:09 AM) (34 of 47) [CRLA-565/2017] didn't make any discussion with the ACB officers rather the same was done by the Secretary to the State and it was admitted that he personally didn't exercise his mind and use his discretion before issuance of prosecution sanction.
55. A bizarre factual situation is seen in this case where prosecution produced PW-12 Shiv Kumar Sharma who happens to be the Deputy Secretary to the government to prove the fact of issuance of prosecution sanction. He stated that the investigation and other material was perused by the then Secretary to the state, sanction was granted by the Chief Minister and he came to tender the document in evidence which means that neither he perused the record nor did he apply his mind. The signature of this witness is appended on the prosecution sanction but in fact, he never applied his mind and in the view of the above, the sanction Ex. P-24 cannot be termed as a valid sanction.
56. It is the mandate of law that before issuance of prosecution sanction, the person who is the issuing authority is required to peruse and minutely go through the record of the case, the investigation report, opinion of I.O., apply his mind and then, pass an order whether sanction to prosecute should be accorded or not. It is required that the authority who applied his mind as to whether prosecution sanction should be granted or not should depose before the court regarding his satisfaction. Simply tendering a document in evidence does not ipso facto prove the contents of the document. The contents are required to be proved by the person who pondered over the issue for the purpose of (Downloaded on 12/11/2023 at 01:16:09 AM) (35 of 47) [CRLA-565/2017] issuing the sanction against a public servant and who examined as to whether the case was fit to accord sanction against a public servant for his prosecution. Thus, it is the requirement of the law that the authority who perused the record and applied his mind as to whether sanction should be granted or not should have issued the sanction and these facts are to be reiterated before the court so as to convert the document into a legally admissible evidence. As the same was not done in this case, it cannot be a fit scenario in which the prosecution sanction was passed with due observance of the law and after due application of mind.
57. Moving on to the concept of standard of legal proof, the well- entrenched principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt is required to be considered here. Having regard to the gaping holes in the evidence, it becomes difficult to rely on the testimonies of prosecution witnesses unless corroborated by independent circumstances or other impeccable, corroborative evidence. The prosecution has miserably failed to prove its case beyond reasonable doubt.
58. Evidence produced in defence cannot be thrown away casually; both the evidence, that of prosecution and that of the defence, are weighed and measured and if the story set up by the defence is foolproof and appears to be more probable than the case of the prosecution then the court should tend to accept it. It is imperative upon the prosecution to prove its case beyond every (Downloaded on 12/11/2023 at 01:16:09 AM) (36 of 47) [CRLA-565/2017] shadow of reasonable doubt. The quality of evidence must be impeccable and unimpeachable.
59. Section 3 of the Evidence Act which is the interpretation clause provides the definitions of 'proved', 'disproved' and 'not proved'. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Lastly, a fact is said to be not proved when it is neither proved nor disproved.
60. In the present case, the existence of the facts alleged by the complainant upon which the entire case of the prosecution rests, cannot be considered to be probable and any reasonable prudent man cannot believe the supposition that these facts exist rather their non-existence is more probable in light of the discussion made above, thus, the testimony of star witness Sohanlal PW-14 falls in the category of evidence that is not proved. Failure of a party to prove any fact is equivalent to fact not proved.
61. When the theory of reverse burden is not applicable, the accused has to prove nothing; a duty is not cast upon him to disprove the charge rather the burden always lies upon the (Downloaded on 12/11/2023 at 01:16:09 AM) (37 of 47) [CRLA-565/2017] prosecution to establish the fact beyond reasonable doubt. Here, in this case, at one hand, the prosecution has miserably failed to prove the alleged charge beyond reasonable doubt and on the contrary, the defence has disproved the alleged charge. The onus on the accused, if any, is to prove the case according to the principle of preponderance of probability but the defence evidence in the present case is such that it went a step ahead and disproved the facts alleged by the prosecution.
62. The general burden never shifts and it always rests on the prosecution except when an accused is taking refuge under any General Exceptions in the Penal Code or any specific exceptions or under any law defining the offence or as per any proviso or rider contained in the Code and even in these scenarios, the standard of proof is limited to the preponderance of probability and the burden is not required to be shed beyond any reasonable doubt.
63. In the backdrop of the factual matrix of the present matter, the testimonies of the defence witnesses as highlighted in the preceding paragraphs and the facts that there are several loopholes in the story of the prosecution that cannot be plugged with logical reasoning from any perspective lead this Court to draw a safe inference that the prosecution has not proved its case beyond every shadow of reasonable doubt and at the same time, the defence was able to prove its case to the extent of satisfying the proof of preponderance of probability.
64. Further discussing the theory of proof, it is well-known that the prosecution always has the burden of proving the case beyond (Downloaded on 12/11/2023 at 01:16:09 AM) (38 of 47) [CRLA-565/2017] every shadow of reasonable doubt. When the burden of proof shifted upon the accused then he does not have to prove it beyond a reasonable doubt when it comes to his general or special exception, as the case may be but only upto the mark of preponderance of probability. The accused may adduce evidence in his support that would stand accepted by a reasonable, prudent person in common parlance. It might be considered that the accused has discharged his burden of proof if the evidence adduced before the court passes the 'prudent man' standard. The judge should acquit the accused if there is such a reasonable doubt on the point of his guilt.
65. The Evidence Act does not contemplate that the accused should prove the case with the same strictness and rigor as the prosecution is required to prove a criminal charge and it is sufficient if the accused is able to prove his case by standard of preponderance of probabilities as envisaged under Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt.
66. Once the accused gives a reasonable and probable explanation, it is for the prosecution to prove affirmatively that the explanation is false. In criminal trial, it is not at all obligatory on an accused in every case to produce evidence in support of its defence and for the purpose of proving his version, he can rely on (Downloaded on 12/11/2023 at 01:16:09 AM) (39 of 47) [CRLA-565/2017] the admissions given by prosecution witness or documents filed by the prosecution. The prosecution has to stand on its own legs, and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution case would crumble down.
67. Though the aspects discussed under the above captions are sufficient to belie the testimony of the star witness, yet, certain other aspects were also observed while perusing the testimonies of the prosecution witnesses.
68. Apropos of the same, this court is starting the discussion with the testimony of the SHO, Gore Lal, who was examined as PW-1 in the trial. In his on-oath statement, he stated that when the sample from the place where the bribe money was kept was taken, a colorless solution of Sodium Carbonate was prepared in a clean glass tumbler and after pouring it in the drawer of the table, the color of the drawer was found to be beige. He also admitted in his cross examination that as per the site plan, there is direct entry from the main road, i.e., the Modi cinema road to the concerned room.
69. If the bribe money had been kept in the drawer from where it has allegedly been recovered, then the color of the drawer would have turned pink rather than beige and in light of this fact, the recovery of the alleged bribe money stands vitiated. The fact that there is direct entry from the main road to the room from where the recovery has been affected also casts a pall of doubt over the fact of recovery as well as on the legitimacy of the trap proceedings.
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70. PW-13, who was the Additional Superintendent of Police, ACB, Sri Ganganagar and allegedly conducted the trap proceedings, admitted in his cross-examination that the constable Jagdish Rai did not accompany the complainant to the house of the accused which is also corroborated by the cross-examination of PW-11. He also stated that after complainant had gone inside the house of the accused, he was standing about 45 feet away from the residence of the accused in the south direction and another witness Kripal Singh was standing also with him. The other witnesses, namely Darshan Singh and Gore Lal, were standing in the north direction and the other members of the trap team were standing 25 feet behind him.
71. It is not discernible as to how the ASP, who was standing 45 feet away from the place where the trap proceedings were going on and the rest of the members of the trap team who were standing at an even further distance, could possibly view/see/observe what was, in fact, unfolding between the complainant and the accused. Additionally, the constable Jagdish Rai did not accompany the complainant when he had gone inside so there is no one to verify what actually transpired between PW- 14 and the appellant in the confines of the room.
72. Another admission of this witness that drew the attention of this court was that the complainant went to the house of the accused twice on the day when trap proceedings were conducted and the complainant was having the money with him when he went inside for the first time, however, he admitted that he did (Downloaded on 12/11/2023 at 01:16:09 AM) (41 of 47) [CRLA-565/2017] not check or ask from the complainant whether he had the money on him or not when he exited the house of the accused and before he went inside for the second time. It is revealing from the testimonies of P.W.1, P.W.2, P.W.3, P.W.6 and P.W.11. that the complainant talked to PW-13 after exiting the house the first time and PW-13 has categorically denied from having inquired regarding the money, thus, this leads to the safe inference that the fact whether the bribe money was on the complainant when he exited the house for the first time is disputed and the possibility that the same was planted in the drawer which was in the premises of the house of the accused cannot be obviated. When the complainant came back outside from the house for the first time neither did this witness check whether the complainant had the money with him or not nor did he take the money in his possession from him. So, this possibility cannot be ruled out that when he went inside the room for the first time and the doctor was not there, he was having an opportunity to conveniently put the money in the drawer of the table lying there and this matches with the explanation furnished by the accused.
73. This witness further expressed that he was not sure whether the voice recorded in the tape recorder by the complainant belonged to the doctor or not and it was the complainant who told him that the voice belonged to the accused and he did not have any source to verify the same as neither he nor the constable Jagdish were present inside with them.
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74. The manner in which this witness stated the above fact is very evasive and the same is indication of the fact that he cannot ascertain whether the complainant was telling the truth or was falsely implicated the accused based on a concoction of lies.
75. A number of prosecution witnesses have stated in their on oath statements that on the alleged day of trap proceedings they saw the complainant going into and coming out of the house of the appellant and at that time, he was having the tainted money on his person. Thereafter, he again went inside the house of the appellant and on this occasion, he came out and gave a signal upon which the ACB team raided the house and conducted the trap proceedings.
76. Now, it is considered apt to begin with the discussion on the statutory perspective of the offences for which the appellant was convicted by the learned trial court.
77. In order to establish commission of offence under Section 7 of the Act which relates to a public servant taking bribe, it is required that a demand of illegal gratification is made and then, there is acceptance in that respect. The requirement of proof of demand is the most essential ingredient to be proved in order to sustain a conviction under Section 7 of the Act against the accused. Even if there is recovery from the accused or the accused is found to be in possession of the amount of illegal gratification, then too, the element of demand is required to be established in order to book the accused for the offence relating to a public servant taking bribe. In the present facts and circumstances, it is (Downloaded on 12/11/2023 at 01:16:09 AM) (43 of 47) [CRLA-565/2017] very much evident that though there is alleged recovery from the drawer of the public servant, i.e., the appellant, but the same is not preceded by a demand or an attempt to obtain any undue advantage or any acceptance on part of the appellant. There is no material available on record that reflects that the accused communicated the assurance of conducting the operation upon receiving a certain amount and the same is cemented by the testimonies of the patient herself as well as her husband as discussed in the preceding paragraphs of the judgment. The proof of demand of bribe by a public servant and its acceptance by him are sine qua non for establishing the offence under Section 7 of the Act and failure of the prosecution to prove the demand would entitle the accused for acquittal since mere recovery of amount cannot be the sole basis for conviction of an accused under Sections 7 to 13 of this Act.
78. It is deemed appropriate to reproduce Section 7 of the Act for easy reference:
7. Offence relating to public servant being bribed.--
Any public servant who,--
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, (Downloaded on 12/11/2023 at 01:16:09 AM) (44 of 47) [CRLA-565/2017] shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.
Illustration.--A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section. Explanation 2.--For the purpose of this section,--(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.
79. The twin conditions required to be fulfilled so as to constitute an offence under Section 7 of the PC Act have not been satisfied in the facts and circumstances of the instant matter.
80. Coming to the aspect of the alleged recovery of Rs.1,500/- which were recovered from a drawer in the house of the appellant as illegal gratification, it is pertinent to note that it is an admitted fact of the prosecution that the tainted currency has been recovered from the drawer of the appellant and not from his exclusive and conscious possession. As per the statement of PW- 13 Additional SP Mr. Sunil Kumar, it is revealed that the complainant went to the house of the appellant twice on the day of alleged trap proceedings; he was carrying the money on both (Downloaded on 12/11/2023 at 01:16:09 AM) (45 of 47) [CRLA-565/2017] the occasions and the gate of the room from which the tainted money was recovered opens on the main road which was easily accessible to the complainant as well as other individuals, who might/might not have entered the room, thus, it cannot be said with utmost certainty that the tainted money was kept in the drawer by the appellant only and the possibility that the money could have been planted upon him owing to some vengeance cannot be ruled out.
81. The judgment of N. Vijayakumar Vs. State of Tamil Nadu reported in AIR 2021 SC 766 passed by a three-judge bench of Hon'ble the Supreme Court sheds light in this regard and it is considered important to reproduce the relevant paragraph of the said judgment herein below for reference:
"12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the Accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala: (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh: (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case Under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that Accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption Under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved."
(Emphasis Supplied)
82. The charge against the accused cannot be considered proved by the mere recovery of the alleged illegal gratification payment (Downloaded on 12/11/2023 at 01:16:09 AM) (46 of 47) [CRLA-565/2017] alone and conviction cannot stand in the absence of proof of exchange of a bribe or proof that the accused accepted the money knowing it to be a bribe or proof that a demand was, in fact, made in the first place. Furthermore, this Court also finds that the concerned person, i.e. the patient for whose operation the bribe was allegedly taken herself deposed in favour of defence as defence witness no. 2 and therefore, the superstructure upon which the presumption has been drawn against the accused by the learned court below is without any sufficient foundation; since it has neither been proved that a demand of illegal gratification was made by the accused herein nor does there remain any witness whose testimony speaks to the culpability of the accused.
83. The mere fact of recovery of tainted amount from the accused does not ipso facto bring the matter within the scope of Prevention of Corruption Act unless a fact of demand and acceptance of bribe is established and the recovery is effected from the exclusive and conscious possession of the accused.
84. As an upshot of the discussion made herein above, it is observed that sufficient material is not there on record to bring home the guilt of the appellant. The order impugned suffers from serious illegality and gross impropriety and therefore, the same is not sustainable in the eyes of law. There is force in the criminal appeal and therefore, the same deserves acceptance.
85. Accordingly, the appeal succeeds and the same is allowed. The impugned judgment of conviction and order of sentence dated 13.04.2017 passed by the learned Special Judge (Sessions Court), (Downloaded on 12/11/2023 at 01:16:09 AM) (47 of 47) [CRLA-565/2017] Prevention of Corruption Act Cases, Sri Ganganagar in Sessions Case No.(36/09) 106/2013 is hereby quashed and set aside. The accused-appellant is acquitted from the charges under Sections 7, 13(1)(d) and 13(2) of P.C. Act. His bail bonds are canceled.
86. All pending applications, if any, also stand disposed of.
87. Record be sent back.
88. The accused-appellant would be required to execute a bond of a sum of Rs. 50,000/- with surety of like amount before this Court within a period of two months from the date of passing of this judgment to the effect that if an appeal is preferred against this judgment before the Apex Court within a period of six months, he shall appear before the Higher Court as and when such Court issues notice in respect of an appeal.
(FARJAND ALI),J 185-/-
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