Orissa High Court
From The Judgment And Order Dated ... vs State Of Odisha (Vig.) on 30 May, 2018
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL APPEAL No. 379 Of 2008
From the judgment and order dated 26.08.2008 passed by the
Special Judge (Vigilance), Sambalpur in T.R. Case No. 20 of
2002.
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Dr. Sushil Kumar Pati ......... Appellant
-Versus-
State of Odisha (Vig.) ......... Respondent
For Appellant: - Mr. Hemanta Kumar Mund
For Respondent: - Mr. Sanjay Kumar Das
Standing Counsel (Vig.)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 10.05.2018 Date of Judgment: 30.05.2018
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S. K. SAHOO, J. The appellant Dr. Sushil Kumar Pati faced trial in the
Court of learned Special Judge (Vigilance), Sambalpur in T.R.
Case No. 20 of 2002 for offences punishable under section 7 and
section 13(2) read with section 13(1)(d) of the Prevention of
Corruption Act, 1988 (hereafter '1988 Act') on the accusation
that on 12.11.2000 being a public servant employed as
2
Orthopaedic Specialist in Rourkela Government Hospital,
Rourkela, he demanded and accepted an amount of Rs.150/-
from P.W.3 Surendranath Mohanty as gratification other than
legal remuneration as a motive or reward for doing an official
act, viz. issuing fitness certificate in favour of P.W.3 and thereby
committed criminal misconduct by corrupt means by obtaining
for himself pecuniary advantage of Rs.150/-.
The learned trial Court vide impugned judgment and
order dated 26.08.2008 found the appellant guilty of the offences
charged and sentenced him to undergo rigorous imprisonment
for one year and to pay a fine of Rs.1000/-, in default, to
undergo rigorous imprisonment for three months on each count
under section 7 and section 13(2) read with section 13(1)(d) of
the 1988 Act and the substantive sentences of imprisonment
were directed to run concurrently.
2. The factual matrix of the prosecution case, as per the
written report (Ext.3) presented by P.W.3 Surendranath Mohanty
before the Superintendent of Police, Vigilance, Sambalpur on
11.11.2000 is that he was working in the P.H.D. Office at
Rourkela and on 05.06.2000 he fell down and sustained fracture
injury on his leg. He was treated at Life Line Clinic, Rourkela
from 06.06.2000 to 11.06.2000 and was discharged. On
3
13.07.2000 he felt severe pain for which he met the appellant in
Rourkela Govt. Hospital for treatment. After checking P.W.3, the
appellant advised him to take rest for a period of six months.
P.W.3 felt better after a few months. He was transferred to
Keonjhar Town and in that connection he met the appellant on
10.11.2000 and requested him to issue a medical fitness
certificate. The appellant checked P.W.3 and told him that the
condition of his leg is better and he asked Rs.150/- for his
treatment. When P.W.3 expressed his reluctance to pay such
amount, the appellant told him that unless the demand amount
of Rs.150/- is fulfilled, medical fitness certificate would not be
granted in his favour and no further medicine would be
prescribed. Even after much persuasion by P.W.3, the appellant
sticked to his demand. As his joining at Keonjhar was necessary,
P.W.3 agreed on compulsion to pay the demanded amount. The
appellant told P.W.3 to come on 12.11.2000 which was a Sunday
and there would be less number of patients on that day and he
would issue medical fitness certificate on that day after receipt of
Rs.150/-. Finding no way out, P.W.3 lodged the first information
report as he was compelled to give bribe money of Rs.150/- on
12.11.2000 to the appellant for getting the medical fitness
certificate as well as for medicine prescription.
4
P.W.6 Nabakishore Pattnaik, D.S.P. (Vigilance),
Rourkela received the written report from P.W.3 and sent it to
Superintendent of Police, Vigilance, Sambalpur who directed the
officer in charge of Vigilance police station, Sambalpur to register
the case and accordingly, Sambalpur Vigilance P.S. Case No. 57
dated 11.11.2000 was registered under section 7 and section
13(2) read with section 13(1)(d) of the 1988 Act.
P.W.6 was directed by the Superintendent of Police,
Vigilance, Sambalpur to detect the case by laying a trap and to
investigate the case.
On 12.11.2000 a preparation for the trap was held at
Vigilance Unit Office, Rourkela. In presence of all the witnesses
and Vigilance Officers, P.W.3 was introduced to the trap party
members and he narrated his grievance as mentioned in the
F.I.R. P.W.3 produced three nos. of fifty rupees G.C. notes to be
used in the trap. The numbers of the G.C. notes were noted
down by P.W.1 in a piece of paper and kept it with him for
comparison after detection. A demonstration relating to the
reaction of phenolphthalein powder with sodium carbonate
solution was made and the sample chemical liquid was collected
in two bottles and those were labeled and sealed. The G.C. notes
were smeared with phenolphthalein powder and it was kept in
5
the left side shirt pocket of P.W.3 with instruction to give it to the
appellant only on demand. A preparation report (Ext.1) was
made and the trap party members and P.W.3 signed thereon.
P.W.2 Banamali Nayak was asked to accompany P.W.3 to act as
over hearing witness, to see the passing of tainted notes from
P.W.3 to the appellant and then to relay signal to the trap party
members by brushing his head with his hands.
After preparation of the trap, the trap party members
along with P.W.3 proceeded to Rourkela Government Hospital in
a jeep and parked their vehicle at a reasonable distance from the
hospital. P.W.3 followed by P.W.2 proceeded to the hospital and
P.W.3 met the appellant in room no.34 in the upstairs of the
hospital. On seeing P.W.3, the appellant asked him whether he
had brought the demanded money. When P.W.3 replied in
affirmative, the appellant asked him to keep the money in the
pen stand kept on the table of that room and accordingly, P.W.3
kept the tainted money in the pen stand. The appellant wrote a
certificate in favour of P.W.3 and then after locking the room, he
along with P.W.3 came to the downstairs of the hospital for
putting the O.P.D. number in the certificate. The appellant put
the O.P.D. number in the fitness certificate written by him and
handed over the same to P.W.3. At about 11.20 a.m. P.W.6 and
6
the other trap party members received pre-arranged signal from
P.W.2 and accordingly they rushed inside the hospital and found
room no.34 of the hospital was under lock and key. They came to
the outdoor of the hospital which was in room no.3 and found the
appellant sitting there. P.W.3 was also found sitting with the
appellant. P.W.6 gave his identity so also that of the other team
members to the appellant and challenged him to have received
Rs.150/- as bribe from P.W.3 to which the appellant denied.
P.W.6 took the hand wash of the appellant in sodium carbonate
solution which did not change its colour. The solution was kept in
a bottle and labeled and sealed. P.W.3 disclosed before P.W.6
that as per the direction of the appellant, he had kept the tainted
money amounting to Rs.150/- in a pen stand on the table of the
appellant in room no.34. On being asked by P.W.6, the appellant
opened the lock of room no.34. The trap party members entered
inside the room and found the tainted G.C. notes were kept
inside the pen stand on the table. On the request of P.W.6, P.W.1
brought out the tainted money and compared the numbers of the
G.C. notes with that already noted in a piece of paper which
tallied. P.W.6 seized the tainted G.C. notes under seizure list
Ext.6. He also seized the pen stand in which the tainted money
was kept and the chit of paper in which P.W.1 had noted down
7
the numbers of G.C. notes at the time of preparation. The O.P.D.
ticket, medical fitness certificate, sealed sample bottles were also
seized under different seizure lists. P.W.6 prepared detection
report vide Ext.2 in which all the trap party members including
the appellant signed. On 12.11.2000 P.W.6 made over the
charge of investigation to P.W.5 Akshaya Kumar Sahoo,
Inspector of Vigilance, Rourkela Unit who examined the
witnesses, sent the exhibits to R.F.S.L., Ainthapali, Sambalpur
for examination and opinion. On 18.12.2000 P.W.5 received the
report of the chemical examiner. He produced all the relevant
documents before the Deputy Secretary to Government of
Odisha who accorded sanction for prosecution of the appellant.
He received the sanction order on 21.12.2001 and on completion
of investigation, he submitted charge sheet on 21.12.2001
against the appellant.
3. The defence plea of the appellant was one of
complete denial of the occurrence and it was pleaded that P.W.3
had come to the hospital for his treatment and the appellant had
given him one advisory certificate and a prescription. On
12.11.2000 P.W.3 collected medical fitness certificate from him
and on that day the appellant noticed some peculiar and
abnormal behaviour of P.W.3 who was trying to touch the hands
8
of the appellant while collecting medical fitness certificate. It was
further pleaded by the appellant that he was not aware as to who
kept the tainted money inside the pen stand and since the room
in question was the duty room, many persons used to come to
that room.
4. In order to prove its case, the prosecution examined
six witnesses.
P.W.1 Prabhas Chandra Rout was the Asst. Engineer,
R.D.A., Rourkela who was a member of the trap party and he
stated about the preparation for the trap as well as preparation
of the detection report after the trap.
P.W.2 Banamali Naik was the Junior Engineer,
National Highway Division and he acted as over hearing witness
and stated about the preparation for the trap as well as
detection.
P.W.3 Surendra Nath Mohanty is the informant in the
case and he stated about the demand of bribe made by the
appellant to him for issuance of fitness certificate and further
stated about the preparation for the trap as well as detection.
P.W.4 Dhobei Charan Sahoo was the Deputy
Secretary to Government of Odisha, General Administrative
9
Department and he was the sanctioning authority who proved
the sanction order (Ext.4).
P.W.5 Akshaya Kumar Sahoo was the Inspector of
Vigilance, Rourkela Unit who took over charge of investigation
from P.W.6 and submitted charge sheet.
P.W.6 Naba Kishore Patnaik was the D.S.P.,
Vigilance, Rourkela who was the trap laying officer and he stated
about the preparation for the trap, recovery of tainted money
and preparation of the detection report.
The prosecution exhibited twelve documents. Ext.1 is
the preparation report, Ext.2 is the detection report, Ext.3 is the
first information report, Ext.4 is the sanction order, Ext.5 is the
chemical examination report, Exts.6 to 10 and 12 are the seizure
lists and Ext.11 is a sheet of paper.
The prosecution proved four material objects. M.O.I
is the seal, M.O.II, M.O.III and M.O.IV are the G.C. notes.
The appellant exhibited three documents. Ext.A is the
medical certificate dated 13.07.2000, Ext.B is the fitness
certificate dated 12.11.2000 and Ext.C is the prescription dated
12.11.2000.
5. The learned trial Court after assessing the evidence
on record came to hold that the evidence of P.W.3 is believable
10
and non-seizure of any outdoor ticket dated 10.11.2000 from
P.W.3 and outdoor register relating to that date from the hospital
did not belie the prosecution story and non-examination of any
patient present in the outdoor of the hospital on 10.11.2000 at
the time of demand of bribe by the appellant is no way helpful to
the defence. It is further held that the evidence of P.W.3 finds
corroboration from the evidence of other witnesses in material
particulars. It is further held that there is no evidence on record
showing that P.W.3 had prior enmity or dispute with the
appellant and therefore, the plea taken by the defence that
P.W.3 might have kept the tainted money in the pen stand taking
advantage of temporary absence of the appellant in room no.34
cannot be accepted. It was further held that the fact that
phenolphthalein powder was traced in the hand wash of the
appellant on chemical examination is not a circumstance
appearing against the appellant as there was every possibility of
contamination of phenolphthalein powder to the hands of the
appellant from the hand of P.W.3 while taking and returning
fitness certificate. It was further held that even though the
evidence of P.W.3 about demand and acceptance of bribe by the
appellant from him is not supported from the evidence of P.W.2
but since the evidence of P.W.3 finds corroboration from the
11
evidence of P.W.1 and P.W.5 on material particulars, there is
nothing to disbelieve such evidence.
6. Mr. Hemant Kumar Mund, learned counsel appearing
for the appellant strenuously contended that the learned trial
Court has not assessed the evidence on record in its proper
perspective. He argued that the appellant had not demanded
anything from P.W.3 on 13.07.2000 when he granted advisory
certificate vide Ext.A to him advising him to take rest for six
months and even though P.W.3 visited the hospital on several
occasion for his treatment after 13.07.2000 and before
10.11.2000 but on none of the occasion the appellant demanded
anything from P.W.3. It is contended that in view of such
previous conduct of the appellant, the alleged demand stated to
have been made on 10.11.2000 is a doubtful feature. He
asserted that even though the demand of bribe is stated to have
been made in the outdoor but the outdoor register has not been
seized to show that P.W.3 visited the outdoor on that day. No
prescription relating to the treatment of P.W.3 on 10.11.2000
has been proved and therefore, it is argued that it is very difficult
to accept that P.W.3 visited the appellant on that day in the
outdoor during course of which the demand was made. It is
further contended that the demand is stated to have been made
12
in presence of several patients in the outdoor which is quite
unbelievable. He emphasized on the conduct of P.W.3 in not
reporting the demand of bribe made by the appellant to his
higher authorities which according to Mr. Mund is a suspicious
feature. It is contended that as per the evidence of P.W.3, fitness
certificate was not necessary for his joining and therefore, why
P.W.3 would pursue for such a certificate and would even agree
to pay bribe? It is further contended that P.W.3 seems to have
hatched out a story of demand of bribe to falsely implicate the
appellant for the best reason known to him. He highlighted that
the non-acceptance of bribe money from P.W.3 by the appellant
with his hands and asking P.W.3 to keep the money in the pen
stand is another suspicious feature as there was nobody inside
the room at that point of time. It is further contended that there
was every opportunity on the part of P.W.3 to plant the tainted
money inside the pen stand without the knowledge of the
appellant. It is further contended that the explanation given by
the appellant immediately after the trap shows his bonafideness
and it rules out the presentation of an afterthought story. He
contended that in the facts and circumstances of the case,
benefit of doubt should be extended in favour of the appellant.
The learned counsel relied upon the decisions in the cases of
13
Gulam Mahmood A. Malek -Vrs.- State of Gujarat reported
in A.I.R. 1980 S.C. 1558 and Shankarlal Gyarasilal Dixit
-Vrs.- State of Maharashtra reported in A.I.R. 1981 S.C.
765.
Mr. Sanjay Kumar Das, learned Standing Counsel
appearing for the Vigilance Department on the other hand
contended that there is no infirmity or illegality in the impugned
judgment of the learned trial Court and the prosecution has
proved all the three aspects i.e. demand, acceptance and
recovery of bribe money and the explanation furnished by the
appellant is not acceptable. It is contended that when P.W.3
would have been benefited by the issuance of fitness certificate
by the appellant, there was no earthly reason on his part to bring
false accusation against the appellant had there been no
demand. The learned counsel for the Vigilance Department relied
upon the decisions of the Hon'ble Supreme Court in the cases of
State of A.P. -Vrs.- R. Jeevaratnam reported in A.I.R. 2005
S.C. 4095, State of U.P. -Vrs.- Dr. G.K. Ghosh reported in
A.I.R. 1984 Supreme Court 1453, State of Bihar -Vrs.-
Basawan Singh reported in A.I.R. 1958 S.C. 500, Gurjant
Singh -Vrs.- State of Punjab reported in (2015) 62 Orissa
Criminal Reports (SC) 91, State of West Bengal -Vrs.-
14
Kailash Chandra Pandey reported in A.I.R. 2005 S.C. 119,
Hazari Lal -Vrs.- The State (Delhi Admn.) reported in
A.I.R. 1980 S.C. 873 and contended that the appeal should be
dismissed.
7. Law is well settled that proof of demand of illegal
gratification is the gravamen of the offences under sections 7 and
13(2) read with 13(1)(d)(i) and (ii) of 1988 Act and in absence
thereof, unmistakably the charge would fail. Mere acceptance of
any amount allegedly by way of illegal gratification or recovery
thereof, dehors the proof of demand, ipso facto, would not be
sufficient to bring home the charge under the aforesaid sections
of the Act. As a corollary, failure of the prosecution to prove the
demand for illegal gratification would be fatal and mere recovery
of the amount from the person accused of the offence under
sections 7 or 13 of the Act would not entail his conviction
thereunder. For arriving at the conclusion as to whether all the
ingredients of the offences i.e. demand, acceptance and recovery
of illegal gratification have been satisfied or not, the Court must
take into consideration the facts and circumstances brought on
the record in their entirety. The burden rests on the accused to
displace the statutory presumption raised under section 20 of the
1988 Act by bringing on record evidence, either direct or
15
circumstantial, to establish with reasonable probability, that the
money was accepted by him, other than as a motive or reward
as referred to in section 7 of the 1988 Act. The standard of
burden of proof on the accused vis-à-vis the standard of burden
of proof on the prosecution would differ. The evidence of the
complainant should be corroborated in material particulars and
the complainant cannot be placed on any better footing than that
of an accomplice and corroboration in material particulars
connecting the accused with the crime has to be insisted upon.
Even if the trap witnesses turn hostile or are found not to be
independent, if the evidence of the complainant and the other
circumstantial evidence on record is found to be consistent with
the guilt of the accused and not consistent with his innocence,
there should be no difficulty for the Court in upholding the
prosecution case. (Ref:- B. Jayaraj -Vrs.- State of Andhra
Pradesh reported in (2014) 13 Supreme Court Cases 55,
Bhagirathi Pera -Vrs.- State of Orissa reported in (2014)
58 Orissa Criminal Reports 566, M.R. Purushotham -Vrs.-
State of Karnataka reported in (2015) 3 Supreme Court
Cases 247, State of Punjab -Vrs.- Madan Mohan Lal Verma
reported in A.I.R. 2013 S.C. 3368, State of Maharashtra
-Vrs.- Dnyaneshwar reported in (2009) 44 Orissa Criminal
16
Reports 425, Punjabrao -Vrs.- State of Maharashtra
reported in A.I.R. 2002 S.C. 486, V. Sejappa -Vrs.- State
reported in A.I.R. 2016 S.C. 2045, Panalal Damodar Rathi -
Vrs.- State of Maharashtra reported in A.I.R. 1979 S.C.
1191, Mukhitar Singh -Vrs.- State of Punjab reported in
(2016) 64 Orissa Criminal Reports (S.C.) 1016, Gurjant
Singh -Vrs.- State of Punjab reported in (2015) 62 Orissa
Criminal Reports (SC) 91, State of U.P. -Vrs.- Dr. G.K.
Ghosh reported in A.I.R. 1984 Supreme Court 1453).
In case of Krishan Chander -Vrs.- State of Delhi
reported in (2016) 3 Supreme Court Cases 108, it is held
that the demand for the bribe money is sine qua non to convict
the accused for the offences punishable under sections 7 and
13(1)(d) read with section 13(2) of the 1988 Act. In case of
P. Satyanarayana Murthy -Vrs.- District Inspector of Police
reported in (2015) 10 Supreme Court Cases 152, it is held
that the proof of demand has been held to be an indispensable
essentiality and of permeating mandate for an offence under
sections 7 and 13 of the Act. Qua section 20 of the Act, which
permits a presumption as envisaged therein, it has been held
that while it is extendable only to an offence under section 7 and
not to those under section 13(1)(d)(i) & (ii) of the Act, it is
17
contingent as well on the proof of acceptance of illegal
gratification for doing or forbearing to do any official act. Such
proof of acceptance of illegal gratification, it was emphasized,
could follow only if there was proof of demand. Axiomatically, it
was held that in absence of proof of demand, such legal
presumption under section 20 of the Act would also not arise.
8. According to the prosecution case, the demand of
bribe by the appellant for issuance of fitness certificate in favour
of P.W.3 was made first on 10.11.2000 and again on 12.11.2000.
Demand of bribe on 10.11.2000:-
Adverting to the first demand made on 10.11.2000,
the appellant specifically denied about any meeting with P.W.3
on that day in the hospital and the later requesting him to grant
a fitness certificate in order to enable him to join service at
Keonjhar.
In the first information report (Ext.3), it is mentioned
by P.W.3 that on 10.11.2000 he met the appellant and requested
him to grant fitness certificate. The appellant checked him and
opined that the leg of P.W.3 was in a better condition but he
asked Rs.150/- for his treatment. When P.W.3 expressed his
reluctance to pay such amount, the appellant told him that
unless the demand amount of Rs.150/- is fulfilled, he would
18
neither grant fitness certificate nor write any prescription and in
spite of repeated request of P.W.3, the appellant sticked to his
demand. It is further mentioned that as for joining at his new
place of posting at Keonjhar town, the certificate was necessary,
on compulsion P.W.3 agreed to pay the bribe money. On being
examined during trial, P.W.3 has supported his version made in
the first information report and stated that he requested the
appellant to issue a medical fitness certificate in his favour to
enable him to join at Keonjhar to which place he was transferred.
In the cross-examination, P.W.3 has however stated
that his authorities had not asked him to submit fitness
certificate for joining in the office. If that was the state of affairs,
the conduct of P.W.3 in approaching the appellant on 10.11.2000
for grant of such certificate and insisting him for such certificate
and even getting agreed to pay the bribe money appears to be
unbelievable. When there was no necessity for such a certificate
for the purpose of his joining at the new place of posting, why
P.W.3 would meet the appellant in the hospital and insist him to
issue such certificate.
P.W.3 has further stated that on 13.07.2000 the
appellant had granted him a medical certificate marked as Ext.A
which was seized on his production by Vigilance Police. He
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further stated that he had not produced such certificate in the
office after the same was granted by the appellant and had kept
the same with him. There is no accusation against the appellant
that when he issued the medical certificate (Ext.A) in favour of
P.W.3, he raised any demand. P.W.3 has further stated that in
between 13.07.2000 and 10.11.2000, he had met the appellant
on several dates in connection with his treatment. There is also
no accusation that on any occasion prior to 10.11.2000, the
appellant had raised any demand from P.W.3 for his treatment.
In the background of the case, when on several occasion the
appellant had treated P.W.3 and even issued medical certificate
(Ext.A) without any demand, it appears strange as to why all on
a sudden he would raise the demand on 10.11.2000. The
previous conduct of the appellant in not raising any demand from
P.W.3 and providing the required treatment goes against the
prosecution case of raising demand on 10.11.2000.
P.W.3 has stated that many patients were present in
the outdoor on 10.11.2000 when he was examined by the
appellant and those patients were present when the demand was
made by the appellant. First of all, raising of demand of bribe in
such a scenario in presence of other patients appears to be an
unbelievable story. The investigating officer (P.W.5) has neither
20
examined any patients who were present at the outdoor of the
hospital on 10.11.2000 nor had he seized the O.P.D. register of
the hospital of the concerned date or any O.P.D. ticket issued to
P.W.3. When specific questions in that respect were put to P.W.5,
he replied that he did not think it to be necessary. The learned
trial Court has also not given any importance to the non-seizure
of those documents or non-examination of any patient. When a
situation in which the alleged demand of bribe is stated to have
been made appears to be doubtful or improbable, it was the duty
of the prosecution to adduce acceptable evidence to show that
the appellant was so fearless and careless that he did not even
hesitate to demand bribe in a public place like outdoor that to in
the presence of other patients. Moreover the seizure of such
documents like O.P.D. register and O.P.D. ticket and examination
of patients would have lent corroboration to the presence of
P.W.3 in the outdoor on 10.11.2000 particularly when the
appellant denied that he had met P.W.3 on 10.11.2000 in the
hospital.
Therefore, in view of the foregoing discussions, it is
very difficult to accept that on 10.11.2000 the appellant
demanded Rs.150/- from P.W.3 for issuance of a medical fitness
certificate.
21
Demand of bribe on 12.11.2000:-
P.W.3 has stated that on 12.11.2000 when he met
the appellant in a room in the upstairs of the hospital, the
appellant asked him whether he had brought the demanded
money and when he replied in the affirmative, the appellant
asked him to keep the money in the pen stand kept on the table
in that room which was in a shape of a glass and after he kept
the money in the pen stand, the appellant caught hold of that
pen stand and wrote a certificate in his favour.
P.W.3 has stated in the cross-examination that he
along with P.W.2 first went to the outdoor of the hospital which is
situated on the ground floor and could not find the appellant
there and then they went to the upstairs of the hospital and met
him in room no.34. P.W.3 has further stated in the cross-
examination that the appellant had not told him on 10.11.2000
specifically to meet him in the outdoor of the hospital on
12.11.2000. Therefore, it appears from the evidence of P.W.3
that even though he was asked by the appellant to come on
12.11.2000 to the hospital for collecting the fitness certificate but
he was not told by the appellant as to where exactly he would be
available and at what time. P.W.3 seems to be searching for the
appellant in the hospital to give him bribe money for obtaining
22
fitness certificate even though such a certificate was not asked
for by his authority for joining his duty.
The over hearing witness (P.W.2) is completely silent
regarding any demand stated to have been made by the
appellant to P.W.3 even though he remained outside the room
near the door of room no.34 which was open and there was a
curtain on the entrance door of the room. P.W.3 has stated that
no patient was present either inside the room or outside. In such
a situation, had there been any demand by the appellant, it
would not have missed the ears of P.W.2 who had accompanied
P.W.3 for a specific purpose. The silence of P.W.2 on such a
material aspect speaks volumes regarding the alleged demand
made inside room no.34 on 12.11.2000.
In case of Gulam Mahmood A. Malek -Vrs.- State
of Gujarat reported in A.I.R. 1980 S.C. 1558, it is held that
the complainant in a trap case is in the nature of an accomplice
and before any Court could act on his testimony, corroboration in
material particulars is necessary.
In case of State of Bihar -Vrs.- Basawan Singh
reported in A.I.R. 1958 S.C. 500, it is held that independent
corroboration does not mean that every detail of what the
witnesses of the raiding party have said must be corroborated by
23
independent witnesses. Corroboration need not be direct
evidence that the accused committed the crime; it is sufficient
even though, it is merely circumstantial evidence of his
connection with the crime.
In view of the foregoing discussions, it is difficult to
accept the evidence of P.W.3 without any corroboration either
from direct evidence or from circumstantial evidence that on
12.11.2000 the appellant reiterated the demand of Rs.150/- from
him for issuance of fitness certificate.
9. Acceptance of bribe money by appellant:-
P.W.3 has stated that on 12.11.2000 when he replied
in affirmative to the query made by the appellant as to whether
he had brought the demanded money, the appellant asked him
to keep the money in the pen stand kept on a table in that room
and accordingly, he kept the money in the pen stand.
It appears from the evidence of P.W.3 that there was
no patient either inside or outside room no.34 by the time he
reached there.
If according to the prosecution case, the appellant
was so fearless two days before that he demanded bribe money
from P.W.3 in the outdoor of the hospital in presence of other
patients, he would not have asked P.W.3 to put the money in the
24
pen stand rather he would have accepted the money in his own
hands from P.W.3 and either kept it in his pant or shirt pocket or
in the drawer of the table as there was nobody to see it. On the
other hand, if the appellant was afraid that there was possibility
of being trapped in case of acceptance of money from P.W.3
directly with his own hands, in ordinary course he would not have
asked P.W.3 to keep the money in the pen stand on the table
which could easily be detected by anybody.
P.W.3 admitted to have stated before the Vigilance
Police that the appellant went inside another room to boil water
before he came to the downstairs and further admitted that the
said statement is correct. Similarly P.W.2 has stated in the cross-
examination that adjacent to room no.34, there was an indoor
room and that the doctor came out of room no.34 followed by
P.W.3 after some time. Therefore, there was ample opportunity
for P.W.3 to plant the tainted money in the pen stand in the
temporary absence of the appellant which would have taken a
few seconds.
The learned Standing Counsel for the Vigilance
Department placed reliance in case of State of A.P. -Vrs.- R.
Jeevaratnam reported in A.I.R. 2005 S.C. 4095 wherein the
Hon'ble Court disbelieved the explanation furnished by the
25
respondent that the tainted money must have been put into his
brief case when he had gone to the bath room as both P.Ws.1
and 2 denied that the respondent went to the bath room.
The case in hand is distinguishable from the facts of
R. Jeevaratnam (supra) inasmuch as here P.W.3 admitted that
in between his entry to room no.34 and exit, the appellant had
been to the adjoining room to boil water. The appellant himself
has stated before the trap laying officer (P.W.6) that while P.W.3
was sitting in front of him in a stool, he left to the dressing room
for some work. Therefore, P.W.3 had scope and opportunity to
plant money in the pen stand unlike the case of R. Jeevaratnam
(supra).
Conduct of the appellant:-
The conduct of the appellant immediately after P.W.6
challenged him to have received bribe money from P.W.3 is very
relevant. P.W.1 has stated that on examination, the appellant
stated that he had not accepted any money from P.W.3 and that
he had not demanded bribe from P.W.3 either on the previous
day or on that day and that on that day at about 11.00 a.m.
P.W.3 came to him and wanted to take a fitness medical
certificate from him though he was not treated at R.G. Hospital
and that he denied to issue the same but on repeated request,
26
he issued the certificate. P.W.1 has further stated that the
appellant stated that he left the room to the dressing room for
some work while P.W.3 was sitting in front of him in a stool and
after returning to room no.34, he called P.W.3 to outside and
locked the room. P.W.2 has stated that when the Vigilance D.S.P.
challenged the appellant to have demanded and accepted the
bribe, he denied to have demanded or accepted any money.
P.W.6, the trap laying officer has stated that he had mentioned
the explanation given by the appellant in the detection report
Ext.2. On perusal of the detection report (Ext.2), it reveals that
on examination of the appellant, he not only denied to have
demanded or accepted any bribe money but further stated that
on that day at about 11.00 a.m. P.W.3 came to him and wanted
to take a medical fitness certificate from him though he was not
treated at R.G. Hospital and he denied to issue the same but on
repeated request of P.W.3, he issued the certificate and that he
left to the dressing room for some work while P.W.3 was sitting
in front of him on a stool and after returning to the room, he
called P.W.3 to outside and locked the room.
When the appellant on being confronted by the trap
laying officer (P.W.6) about the acceptance of bribe money,
without fumbling or getting panicked gave a spontaneous
27
explanation right at the moment when the crime is allegedly
committed and there was no opportunity to fabricate such
explanation or concoct a story, the explanation becomes
admissible as res gestae within the meaning of section 6 of the
Evidence Act.
P.W.1 has stated that the hand washes of both the
hands of the appellant were taken in colourless sodium carbonate
solution and there was no change in colour. P.W.6 has also
stated that he took the washes of both the hands of the appellant
in sodium carbonate solution and the colour of the solution did
not change. The hand wash of the appellant collected in a bottle
and marked as 'C' was sent for chemical examination and it was
found to be faintly pink and phenolphthalein was detected in the
sodium carbonate solution. The learned trial Court has not given
any importance to the finding of phenolphthalein in the hand
wash of the appellant as there was every possibility of
contamination of phenolphthalein powder to the hands of the
appellant from the hand of P.W.3 while taking and returning the
medical fitness certificate.
A Court has to be more careful, cautious and
meticulous in scrutinizing the evidence on record when the
accused has not touched the tainted money nor such money was
28
recovered from his personal belongings. If the money is
recovered from inside any object even from the room where the
accused was present, the Court has to keep in mind whether
there was any possibility of tainted money being planted by the
decoy witness cunningly without the notice of the accused.
Situation may so arise where the accused may not be in a
position to say as to how the tainted money was recovered from
his room or from inside any object in his room. In absence of his
knowledge, he may not take a specific plea except pleading
ignorance. In such a situation, the Court is not absolved of its
responsibility to scan the evidence with eagle eyes so that an
innocent person gets justice and frees himself from unnecessary
harassment and victimization.
10. Recovery of bribe money:-
Even though recovery of the tainted money from the
pen stand is not disputed by the appellant but since there was
possibility of planting the money by P.W.3 without the notice of
the appellant, mere recovery of the tainted money is not
sufficient to fasten his guilt in the absence of any clinching
evidence with regard to demand and acceptance of the amount
as illegal gratification.
29
In case of Sita Ram -Vrs.- The State of Rajasthan
reported in 1975 Criminal Law Journal 1224, the evidence
of the complainant was rejected and it was held that there was
no evidence to establish that the accused had received any
gratification from any person. On that finding the presumption
under Section 4(1) of the Prevention of Corruption Act was not
drawn. All that was taken as established was the recovery of
certain money from the person of the accused and it was held
that mere recovery of money was not enough to entitle the
drawing of the presumption under Section 4(1) of the Prevention
of Corruption Act. In case of Suraj Mal -Vrs.- The State (Delhi
Administration) reported in 1979 Criminal Law Journal
1087, it was held that mere recovery of money divorced from
the circumstances under which it was paid was not sufficient
when the substantive evidence in the case was not reliable to
prove payment of bribe or to show that the accused voluntarily
accepted the money.
Therefore recovery of tainted money from the pen
stand kept on the table in room no.34 is in itself not such an
incriminating circumstance basing on which a verdict of guilt can
be passed against the appellant.
30
11. The submission of the learned counsel for the
Vigilance Department that there was no earthly reason on the
part of P.W.3 to bring false accusation against the appellant had
there been no demand, is not convincing.
Motive behind false implication operates in the mind
of the informant and it is very often not within the reach of the
accused. The appellant may not be in a position to know the
motive of P.W.3 in implicating him falsely. In case of Shankarlal
Gyarasilal Dixit (supra), it was held that different motives
operate on the mind of different persons in making of unfounded
accusations.
When the evidence of P.W.3 regarding demand of
bribe money by the appellant and instruction given by the
appellant to him to keep the money in the pen stand is not
acceptable in view of the discussions above made, merely
because the appellant fails to say what was the specific motive
on the part of P.W.3 to falsely implicate him in the crime, the
evidence of P.W.3 would not be automatically accepted.
12. Learned counsel for the Vigilance Department placed
reliance in the case of State of West Bengal -Vrs.- Kailash
Chandra Pandey reported in A.I.R. 2005 S.C. 119 wherein it
is held that the Appellate Court should be slow in re-appreciating
31
the evidence as the trial Court has the occasion to see the
demeanour of the witnesses and it is in a better position to
appreciate the evidence and the Appellate Court should not
lightly brush aside the appreciation done by the trial Court except
for cogent reasons.
I am of the humble view that it is the duty of the
Appellate Court to see if there is any error in the appreciation of
evidence by the trial Court. The sustainability of the judgment of
the trial Court depends upon the soundness of the reasons given
in support of the findings and the conclusion. An Appellate Court
should not adopt the reasoning given by the trial Court without
evaluating the evidence at all otherwise it would not be a legal
judgment in the eye of law. As a first Court of appeal, the High
Court must apply its independent mind and record its own
findings on the basis of its own assessment of evidence.
13. In view of the foregoing discussions of the evidence,
it is apparent that the prosecution case suffers from serious
infirmities. The reasoning assigned by the learned trial Court is
faulty and genuine material evidence available on record in
favour of the appellant has been overlooked and it appears that
the impugned judgment is one sided in favour of the
prosecution. I am fully satisfied that sufficient, cogent and
32
reliable evidence is not available on record which established the
guilt of the appellant. Once the story of demand falls through,
the authenticity of trap becomes highly doubtful because
acceptance of bribe germinates through demand. In the absence
of any clinching evidence relating to the demand and acceptance
of the bribe money by the appellant and the fact that there is
possibility of planting the tainted money, I am of the view that
the guilt of the appellant has not been established beyond all
reasonable doubt and therefore, I am constrained to give benefit
of doubt to the appellant.
In the result, the criminal appeal is allowed. The
impugned judgment and order of conviction of the appellant
under section 7 and section 13(2) read with section 13(1)(d) of
the 1988 Act and the sentence passed thereunder is hereby set
aside and the appellant is acquitted of all the charges. The
appellant is on bail by virtue of the order of this Court. He is
discharged from liability of his bail bond. The personal bond and
the surety bond stand cancelled.
.................................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 30th May 2018/Sisir/Sukanta