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Monday, March 3, 2014

Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 - vs- sec.313 Cr.P.C.- Bribe case - alleged that the prosecution failed to prove the demand of Bribe - Trial court acquitted - High court convicted as there is no proper explanation under sec.313 Cr.P.C. for the incriminating circumstances of his presence in complainant's house and about phenolphthalein test including his pant pocket turned pink - Apex court confirmed the judgment of High court -No perversity in the judgement of High court - nothing to interfere - Apex court dismissed the criminal appeal = Phula Singh …..Appellant Versus State of Himachal Pradesh ….. Respondent = 2014 (March . Part) judis.nic.in/supremecourt/filename=41279

Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 - vs- sec.313 Cr.P.C.-
Bribe case - alleged that the prosecution failed to prove the demand of Bribe - Trial court acquitted - High court convicted as there is no proper explanation under sec.313 Cr.P.C. for the incriminating circumstances of his presence in complainant's house and about phenolphthalein test including his pant pocket turned pink - Apex court confirmed the judgment of High court -No perversity in the judgement of High court - nothing to interfere - Apex court dismissed the criminal appeal =
   reversing  the
      judgment and order dated  19.2.2009,  passed  by  Ld.  Special  Judge,
      Hamirpur in Corruption Case No.1 of 2008 acquitting the appellant from
      the Charges under Sections 7 and 13(2) of the Prevention of Corruption
      Act, 1988 (hereinafter referred to as ‘the Act’).  The High Court  has
      awarded the appellant sentence of one year RI and a fine of Rs.10,000/-
       and in default of payment of fine to undergo further RI for a  period
      of six months. =

Admitted facts

 The admitted facts remain that the appellant had no relationship
      or acquaintance with the  complainant  whatsoever  and  the  appellant
      failed to furnish any explanation about his visit and staying  in  the
      house of the complainant.   The appellant has not denied visit to  the
      house of the complainant. More so, he did not furnish any  explanation
      in respect of recovery of Rs.1,000/- from the pocket of his  pant  nor
      he could furnish any information as how his  fingers  turned  pink  on
      being washed, with sodium carbonate solution  as  the  currency  notes
      already  found  in  pocket  of  his  pant  had   been   treated   with
      phenolphthalein. 
On being washed, part of his pant also turned pink.
    Explanation under sec.313 Cr.P.C. is crucial
Even in the statement under Section 313 Cr.P.C.,  the  appellant
      answered every question saying “I do not know” or  “it  is  incorrect”
      but when he was asked as to whether he wanted to say anything else, he
      answered as under:-
           “I am innocent and Prabhat Chand had lodged a false case against
           him, because he had encroached the land of Shri Vakil  Chand  as
           per his demarcation”.
The accused  has  a  duty  to  furnish  an  explanation  in  his
      statement  under  Section  313  Cr.P.C.  regarding  any  incriminating
      material that has been produced against him. If the accused  has  been
      given the freedom to remain silent during the investigation as well as
      before the court, then the accused may choose to maintain  silence  or
      even remain in complete denial when his statement  under  Section  313
      Cr.P.C. is being recorded. However, in such an event, the court  would
      be entitled to draw an inference,  including  such  adverse  inference
      against the accused as may be  permissible  in  accordance  with  law.
      (Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR  2012  SC  1357;
      Munish Mubar v. State of Haryana, AIR 2013 SC 912; and Raj Kumar Singh
      alias Raju @ Batya v. State of Rajasthan, AIR 2013 SC 3150).

Interference in acquittal by appellant court 
We are fully aware of limitations  of  the  appellate  court  to
      interfere with an order of acquittal. In exceptional cases where there
      are compelling circumstances and the judgment under appeal is found to
      be perverse, the appellate court  can  interfere  with  the  order  of
      acquittal. The appellate court should bear in mind the presumption  of
      innocence of the accused and further that the trial Court's  acquittal
      bolsters the presumption of his innocence. Interference in  a  routine
      manner where the other view is  possible  should  be  avoided,  unless
      there are good reasons for interference.


      11.   In the instant case, there is no perversity in the  judgment  of
      the High Court as it cannot be said that the judgment is not based  on
      evidence  or  the  evidence  on  record  has  not  properly  been  re-
      appreciated by the appellate court, which may warrant interference  by
      this court.


  2014 (March . Part) judis.nic.in/supremecourt/filename=41279
B.S. CHAUHAN, J. CHELAMESWAR

                                                            REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.2271 of 2011




      Phula Singh                                  …..Appellant


                                   Versus




      State of Himachal Pradesh                           ….. Respondent




                                  JUDGMENT


      Dr. B.S. CHAUHAN, J.




      l.    This appeal has been preferred against the impugned judgment and
      order dated 24.8.2011/7.9.2011, passed by the High Court  of  Himachal
      Pradesh at Shimla in Criminal Appeal  No.358  of  2009  reversing  the
      judgment and order dated  19.2.2009,  passed  by  Ld.  Special  Judge,
      Hamirpur in Corruption Case No.1 of 2008 acquitting the appellant from
      the Charges under Sections 7 and 13(2) of the Prevention of Corruption
      Act, 1988 (hereinafter referred to as ‘the Act’).  The High Court  has
      awarded the appellant sentence of one year RI and a fine of Rs.10,000/-
       and in default of payment of fine to undergo further RI for a  period
      of six months.
      2.    Facts and circumstances giving rise to this appeal are:


      A.    That on 20.6.2007, the appellant was working as Kanungo  of  the
      particular area and one Vakil Chand  filed  a  complaint  against  the
      father of the complainant that he encroached upon the land thus, asked
      for demarcation.  The appellant investigated the matter and found that
      one and half kanals of the land of Vikil  Chand  had  been  encroached
      upon by the complainant’s father.


      B.    The complainant raised the objection about this demarcation  and
      at that time the appellant met the complainant at  village  Kheri  and
      demanded “Chai Pani” to cancel the demarcation report.  It was in view
      thereof that the complainant contacted the appellant on  10.7.2007  on
      his mobile and the appellant demanded the bribe of Rs.5,000/- from the
      complainant. The complainant Prabhat Chand  lodged  an  FIR  with  the
      Police Station of  State  Vigilance  and  Anti-Corruption  Department,
      Hamirpur alleging demand of bribe by the appellant.


      C.    The appellant informed the complainant that he would  visit  his
      residence and he should pay the said amount.  In the  negotiation  the
      deal was struck to the tune of Rs.1,000/-.  The appellant came to  the
      residence of the complainant on 10.7.2007 and demanded the  bribe.  In
      view of the complaint already lodged by Prabhat Chand,  the  trap  was
      laid and the appellant was arrested and after investigating the matter
      the chargesheet was filed which ultimately culminated into  Corruption
      Case No.1 of 2008 under Sections 7 and 13(2) of the Act.
      After conclusion of the trial by judgment and  order  dated  19.2.2009
      the Ld. Sessions Judge, Hamirpur acquitted the appellant  of  all  the
      charges.


      D.    Aggrieved, the State of Himachal Pradesh filed an  appeal  which
      has been allowed vide impugned judgment and order.
            Hence, this appeal.




      3.    Shri D.K. Garg, learned counsel appearing for the appellant  has
      submitted that demarcation had already been made and  the  report  had
      been submitted before the Tahsildar, therefore, there was no  occasion
      for the appellant to demand any amount.  As the  complainant’s  father
      had encroached upon the land of Vakil Chand to the  tune  of  one  and
      half kanals and the appellant had shown this fact in  his  report  the
      complainant was having the grudge  against  him.   Therefore,  he  has
      falsely been enroped.   The High Court failed to appreciate that there
      are different parameters to reverse the judgment of acquittal  and  in
      this respect failed to apply the law laid down  by  this  Court  in  a
      catena of judgments.  There is no evidence of demand or acceptance  of
      the bribe.  Hence, the appeal deserves to be allowed.


      4.    Per  contra,  Ms.  Shikha  Bhardwaj,  learned  counsel  for  the
      respondent has opposed the appeal contending that there was sufficient
      material against the appellant on the basis of which  the  High  Court
      has rightly reversed the acquittal though there was no direct evidence
      of  demand  of  bribe.   The  appellant  visited  the  house  of   the
      complainant though there was no  relationship  between  the  two.   He
      removed his shirt and hanged in the house of  the  complainant  though
      the money was recovered from the pocket of the pant.   After  recovery
      when the hands of the appellant were washed,  the  same  turned  pink.
      Therefore, there was a duty cast upon the appellant to explain all the
      circumstances while his statement under Section 313 Cr.P.C. was  being
      recorded.  The appellant kept mum and did not  lead  any  evidence  in
      defence.  The High Court was justified to draw the  adverse  inference
      against the appellant in  view  of  the  presumption  enshrined  under
      Section 20 of the Act. Hence, the appeal is liable to be dismissed.
      5.    We have considered the rival submissions made by learned counsel
      for the parties and perused the record.


      6.    The admitted facts remain that the appellant had no relationship
      or acquaintance with the  complainant  whatsoever  and  the  appellant
      failed to furnish any explanation about his visit and staying  in  the
      house of the complainant.   The appellant has not denied visit to  the
      house of the complainant. More so, he did not furnish any  explanation
      in respect of recovery of Rs.1,000/- from the pocket of his  pant  nor
      he could furnish any information as how his  fingers  turned  pink  on
      being washed, with sodium carbonate solution  as  the  currency  notes
      already  found  in  pocket  of  his  pant  had   been   treated   with
      phenolphthalein. On being washed, part of his pant also turned pink.
            Even in the statement under Section 313 Cr.P.C.,  the  appellant
      answered every question saying “I do not know” or  “it  is  incorrect”
      but when he was asked as to whether he wanted to say anything else, he
      answered as under:-
           “I am innocent and Prabhat Chand had lodged a false case against
           him, because he had encroached the land of Shri Vakil  Chand  as
           per his demarcation”.




      7.    We do not find any force in the submission advanced by Shri D.K.
      Garg that it is the prosecution which has to establish each and  every
      fact and the accused has a right only to maintain silence.


      8.    The accused  has  a  duty  to  furnish  an  explanation  in  his
      statement  under  Section  313  Cr.P.C.  regarding  any  incriminating
      material that has been produced against him. If the accused  has  been
      given the freedom to remain silent during the investigation as well as
      before the court, then the accused may choose to maintain  silence  or
      even remain in complete denial when his statement  under  Section  313
      Cr.P.C. is being recorded. However, in such an event, the court  would
      be entitled to draw an inference,  including  such  adverse  inference
      against the accused as may be  permissible  in  accordance  with  law.
      (Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR  2012  SC  1357;
      Munish Mubar v. State of Haryana, AIR 2013 SC 912; and Raj Kumar Singh
      alias Raju @ Batya v. State of Rajasthan, AIR 2013 SC 3150).


      9.    In the instant  case,  we  fail  to  understand  as  under  what
      circumstances  the   appellant   could   maintain   complete   silence
      particularly, in view of the fact that he did not deny  his  visit  to
      the house of the complainant or that his shirt was  found  hanging  on
      the peg in the wall and that his hands turned  pink  on  being  washed
      with sodium carbonate  water.   We  do  not  find  any  force  in  the
      submission advanced by Shri D.K. Garg that it was not a fit case where
      the High Court ought to have reversed the well  reasoned  judgment  of
      acquittal as it was based on evidence on record.


      10.   We are fully aware of limitations  of  the  appellate  court  to
      interfere with an order of acquittal. In exceptional cases where there
      are compelling circumstances and the judgment under appeal is found to
      be perverse, the appellate court  can  interfere  with  the  order  of
      acquittal. The appellate court should bear in mind the presumption  of
      innocence of the accused and further that the trial Court's  acquittal
      bolsters the presumption of his innocence. Interference in  a  routine
      manner where the other view is  possible  should  be  avoided,  unless
      there are good reasons for interference.


      11.   In the instant case, there is no perversity in the  judgment  of
      the High Court as it cannot be said that the judgment is not based  on
      evidence  or  the  evidence  on  record  has  not  properly  been  re-
      appreciated by the appellate court, which may warrant interference  by
      this court.


      12.   In view of the above, the appeal is dismissed. The appellant has
      been enlarged  on  bail.  The  bail  bonds  are  cancelled.   He  must
      surrender before the Ld. Special  Judge,  Hamirpur,  Shimla  within  a
      period of four weeks, failing which the said Court  shall  secure  his
      presence and send him to jail to  serve  the  remaining  part  of  the
      sentence.
            A copy of the judgment be sent to the  aforesaid  learned  Court
      for information and compliance.


                                             ..…………………….J.          (DR.
                                  B.S. CHAUHAN)




                                              ..………………………J.
                                             (J. CHELAMESWAR)
      New Delhi
      March 3, 2014.



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