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Wednesday, February 3, 2016

demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, = In M.K. Harshan v. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: (SCC pp. 723-24, para 8) ‘8. … It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.’…” (emphasis supplied) In view of the aforesaid reasons, the approach of both the trial court and the High Court in the case is erroneous as both the courts have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification from the complainant-Jai Bhagwan (PW-2) by the appellant though there is no substantive evidence in this regard and the appellant was erroneously convicted for the charges framed against him. The prosecution has failed to prove the factum of demand of bribe money made by the appellant from the complainant-Jai Bhagwan (PW-2), which is the sine qua non for convicting him for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. Thus, the impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside. For the reasons stated supra, the impugned judgment and order of the High Court as well as the trial court are set aside. The appeal is allowed.

Non-                                                              Reportable







               IN THE SUPREME COURT OF INDIA
                    CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 14 OF 2016
            (Arising out of SLP (Crl.) No.703 of 2015)


KRISHAN CHANDER                          …APPELLANT

                            Versus


STATE OF DELHI                          …RESPONDENT

                       J U D G M E N T


V. GOPALA GOWDA, J.


      Leave granted.


This criminal appeal is directed against the  impugned  judgment  and  order
dated 7.11.2014 passed by the High Court of Delhi at New Delhi in       Crl.
Appeal No. 634 of 2008 wherein the  High  Court  has  dismissed  the  appeal
filed by the appellant and upheld  the  order  of  conviction  and  sentence
passed against the appellant by the  court  of  Special  Judge,  Delhi  (for
short the “trial court”) in CC No. 21 of 2005.  The  trial  court  convicted
the appellant vide its judgment dated 14.7.2008 for the offences  punishable
under Sections  7  and  13(1)(d)  read  with  13(2)  of  the  Prevention  of
Corruption Act,  1988  (for  short  “the  PC  Act”)  and  vide  order  dated
15.7.2008 sentenced him to undergo rigorous imprisonment for two years  with
fine of Rs.5,000/- for the offence punishable under Section 7 of the PC  Act
and in default to undergo  simple  imprisonment  for  two  months.  For  the
offences punishable under Section 13(2)  of  the  PC  Act,  he  was  further
sentenced to undergo rigorous  imprisonment  for  two  years  with  fine  of
Rs.5,000/- and in default to undergo simple  imprisonment  for  two  months.
Both the sentences imposed upon him for the above said offences were to  run
concurrently.

Brief facts of the case are stated hereunder to appreciate the  rival  legal
contentions urged on behalf of the parties:-

The prosecution case before the trial court was that on  29.7.2004,  an  FIR
No. 662 of 2004 was registered  at  Police  Station,  Nangloi,  Delhi  under
Sections 279 and 337 of Indian Penal Code  (for  short  “IPC”)  against  one
Krishan Kumar (PW-9), the brother of  the  complainant-Jai  Bhagwan  (PW-2).
Krishan Kumar was arrested on  29.7.2004  in  connection  with  the  alleged
offences referred to in the above said FIR.

The complainant-Jai Bhagwan (PW-2) had  approached  Assistant  Sub-Inspector
(ASI) Ranbir Singh (PW-11), the Investigating Officer of the said  case  for
release of Krishan Kumar on bail. The Investigating  Officer  is  stated  to
have accepted the bail bond for release of Krishan Kumar  and  directed  the
appellant (a constable at the said Police Station) to release  him  on  bail
in connection with the alleged offences referred to supra.

The appellant alleged to  have  demanded  a  bribe  of  Rs.5000/-  from  the
complainant-Jai Bhagwan for releasing his brother Krishan Kumar on bail.  It
is alleged that under duress, complainant-Jai Bhagwan (PW-2) paid Rs.4,000/-
 as bribe to the appellant. Thereafter, Krishan Kumar  (PW-9)  was  released
on bail and the appellant asked the complainant-Jai Bhagwan to pay  him  the
balance amount of Rs.1,000/- on 30.7.2004 between 6.00 p.m.  and  7.00  p.m.
at Ditchau Kalan Bus Stand, Najafgarh.

The complainant-Jai Bhagwan (PW-2) approached the office of Anti  Corruption
Branch on 30.07.2004 and made a written complaint regarding  the  demand  of
bribe by the appellant from him. The said written complaint was recorded  by
Sunder Dev     (PW-12) in presence of Anoop Kumar Verma (PW-6).

The complainant-Jai Bhagwan took with  him  two  Government  Currency  notes
(for short the “GC notes”) in the denomination of Rs.500/- each  and  handed
over the same to Inspector Sunder Dev (PW-12)  who  noted  down  the  serial
numbers of  the  said  GC  notes.  Thereafter,  phenolphthalein  powder  was
applied to the said GC notes and recorded in the  pre-raid  proceedings  and
its effect was  demonstrated.  The  tainted  GC  notes  were  given  to  the
complainant-Jai Bhagwan, who kept the same in the left pocket of his shirt.

As per the  instructions,  panch  witness-  Anoop  Kumar  Verma  (PW-6)  was
directed  to  remain  close  to  complainant-Jai  Bhagwan  to  overhear  the
conversation between the complainant-Jai Bhagwan and the appellant.  He  was
further instructed to give a signal to the  raiding  party  by  hurling  his
hand over his head  when  bribe  amount  had  actually  been  given  by  the
complainant-Jai Bhagwan.

On 30.07.2004, at around  4.30  p.m.,  the  complainant-Jai  Bhagwan,  panch
witness- Anoop Kumar Verma,  Inspector  Sunder  Dev  (PW-12),  Sub-Inspector
B.S. Yadav (PW-10)  and  Constable  Rajiv  Kumar  (PW-5)  along  with  other
members of the  raiding  party  left  for  Ditchau  Kalan  Bus  Stand  in  a
government vehicle and reached the spot at around 5.45 p.m. At  around  7.00
p.m., appellant reached the spot and had conversation  with  complainant-Jai
Bhagwan. Both the complainant  and  the  appellant  moved  towards  a  water
trolley, had water and again continued their  conversation.  Panch  witness-
Anoop  Kumar  Verma  followed  them.  After  sometime,  the  complainant-Jai
Bhagwan took out the tainted GC notes from the left pocket of his shirt  and
gave them to the appellant which he took with his right hand  and  kept  the
same in the left pocket of his  shirt.  Soon  after  the  said  transaction,
panch witness- Anoop Kumar Verma  gave  the  pre-determined  signal  to  the
raiding team upon which the team rushed to the spot.

Anoop Kumar Verma informed the raiding team that the appellant had  demanded
and accepted the bribe money of Rs.1000/- from the complainant-Jai  Bhagwan.
Inspector Sunder Dev introduced himself as Inspector  from  Anti  Corruption
Branch to the appellant upon which he immediately took out  the  tainted  GC
notes from the pocket of his shirt with his left hand and threw the same  on
the ground. The said GC notes were then picked up from the ground  by  panch
witness-Anoop Kumar Verma on the instructions of Inspector-Sunder  Dev.  The
serial numbers of the recovered GC notes were matched with  those  noted  in
the pre-raid proceedings. The wash of right and left hand of  the  appellant
as well as the wash of left pocket of  his  shirt  was  taken  in  colorless
solution  of  sodium  carbonate  which  turned  pink.   The   solution   was
transferred  into  clean  glass  bottles  which  were  sealed  and  labeled.
Thereafter,  the  appellant  was  arrested  and  FIR  No.  36  of  2004  was
registered against him for the offences  punishable  under  Sections  7  and
13(1)(d) read with 13(2) of the PC Act.

The learned Special Judge after examining the evidence on  record  convicted
the appellant vide its judgment dated 14.7.2008 for the offences  punishable
under Sections 7 and 13(1)(d) read with Section 13(2)  of  the  PC  Act  and
vide order dated 15.7.2008 sentenced him to  undergo  rigorous  imprisonment
for two years with fine of  Rs.5,000/-  for  the  offence  punishable  under
Section 7 of the PC Act and in default to undergo  simple  imprisonment  for
two months. For the offence punishable under Section 13(2) of the PC Act  he
was further sentenced to undergo rigorous imprisonment for  two  years  with
fine of Rs.5,000/- and in default to undergo  simple  imprisonment  for  two
months. Both the sentences imposed upon him  for  the  above  said  offences
were to run concurrently.

Aggrieved by the decision of the learned Special Judge, the appellant  filed
Crl. Appeal No.634 of 2008 before the High  Court  of  Delhi  at  New  Delhi
urging various grounds. The High Court vide its  judgment  and  order  dated
07.11.2014  upheld  the  decision  of  the  learned   Special   Judge.   The
correctness of  the  same  is  questioned  in  this  appeal  urging  various
grounds.

 Mr. Sidharth Luthra, the learned senior counsel on behalf of the  appellant
contended that the High  Court  has  failed  to  appreciate  the  fact  that
Krishan Kumar (PW-9) at the time of occurrence was already released on  bail
in connection with the case registered  in  FIR  No.  662  of  2004  by  the
appellant as per the directions of Ranbir  Singh,  ASI  (PW-11).  Thus,  the
demand of bribe money of Rs.1000/- by the appellant  from  the  complainant-
Jai Bhagwan is highly improbable.



It was further contended by him that the demand of illegal gratification  by
the accused is a sine qua non for constitution of an offence under  Sections
7 and 13(1)(d) read with Section 13(2) of the PC Act. A mere  production  of
the tainted money recovered from the appellant along  with  positive  result
of phenolphthalein test, sans the proof of demand of bribe is not enough  to
establish the guilt of the charge made against appellant. In support of  the
above legal submission, he placed reliance upon the judgments of this  Court
in the cases of B. Jayaraj v. State  of  Andhra  Pradesh[1],  A.  Subair  v.
State of Kerala[2] and State of Kerala & Anr. v. C.P. Rao[3],  wherein  this
Court, after interpreting Sections 7 and 13(1)(d) of the PC  Act,  has  held
that the demand of bribe money made by the accused in a corruption  case  is
a sine qua non to punish him  for  the  above  said  offences.  The  learned
senior counsel has also placed reliance upon the three Judge Bench  decision
of this Court in the case of P. Satyanarayana Murthy v. The Dist.  Inspector
of Police, State of Andhra Pradesh & Anr.[4], in which  I  was  one  of  the
companion Judges, wherein this Court, after referring to the  aforesaid  two
Judge Bench judgments on the question of necessity of demand of bribe  money
by the accused, has reiterated the view stated supra.

It was  further  contended  by  him  that  the  High  Court  has  failed  to
appreciate the fact that the complainant-Jai Bhagwan turned  hostile  during
his examination before the trial court and did not support  the  prosecution
case that the demand of Rs.1000/- as illegal gratification was made  by  the
appellant from him for release of Krishna Kumar (PW-2) on bail.



It was further contended by the learned senior counsel that the  High  Court
has failed to re-appreciate the  evidence  on  record  that  Panch  witness-
Anoop Kumar Verma was directed by the official of Anti Corruption Branch  to
remain  close  to  the  complainant-Jai  Bhagwan  in  order  to   hear   the
conversation  and  see  the  transaction  between  the  appellant  and   the
complainant-Jai Bhagwan. He  further  submitted  that  the  learned  Special
Judge as well as the  High  Court  have  arrived  at  an  erroneous  finding
without considering the fact that the  appellant  after  reaching  the  spot
walked with the complainant-Jai Bhagwan for  about  15  to  20  steps  while
conversing with each other. Thereafter, both  moved  towards  water  trolley
and after taking water proceeded ahead. Around that  time  the  complainant-
Jai Bhagwan took out the tainted GC notes from his pocket  and  gave  it  to
the appellant. From the said evidence,  it  is  clear  that  panch  witness-
Anoop Kumar Verma did not hear the conversation between  the  appellant  and
the complainant-Jai Bhagwan. Therefore, there was no occasion to  reach  the
conclusion that the appellant demanded any bribe  from  the  complainant-Jai
Bhagwan.

He further contended that Ranbir Singh, ASI who  was  Investigating  Officer
in the case in which the arrest of Krishan  Kumar  was  made,  accepted  his
bail bond and directed the appellant to release him. It is an admitted  fact
that Krishan Kumar was released on bail in the presence of and  as  per  the
directions of Ranbir Singh, ASI. Therefore, there was no  occasion  for  the
appellant to demand any bribe money from the complainant-Jai Bhagwan.

It was further contended that the High Court has failed  to  appreciate  the
fact that the alleged demand and the acceptance of amount of Rs.  1000/-  is
not corroborated by any  independent  witness  despite  the  fact  that  the
transaction alleged to have taken in a public place.

On the other hand, Mr.  P.S.  Patwalia,  the  learned  Additional  Solicitor
General (ASG), on behalf of  the  respondent-State  sought  to  justify  the
impugned judgment and order passed by the High  Court  which  is  on  proper
appreciation of evidence on record and it is  well  reasoned  and  therefore
not vitiated in law. Hence, he would submit that no  interference  with  the
same is required by this Court in exercise of its appellate jurisdiction.

He has  submitted  that  the  High  Court  has  rightly  re-appreciated  the
evidence of the complainant-Jai Bhagwan and other prosecution witnesses  and
concurred with  the  findings  recorded  on  the  charges.  Further  it  was
submitted by him that the trial court while  appreciating  the  evidence  of
the complainant-Jai Bhagwan relied upon the decision of this  Court  in  the
case of Sat Paul v. Delhi Administration[5], paragraphs 41 and 51  of  which
decision in recording the finding on the charges against the appellant,  are
extracted hereunder:
“41. The fallacy underlying this view stems from  the  assumption  that  the
only purpose of cross-examination of a  witness  is  to  discredit  him;  it
ignores the hard truth that  another  equally  important  object  of  cross-
examination is to elicit admissions of facts  which  would  help  build  the
case of the cross-examiner. When a  party  with  the  leave  of  the  court,
confronts his witness with his previous inconsistent statement, he  does  so
in the hope that the witness might revert to what he had stated  previously.
If the departure from the prior statement is not deliberate but  is  due  to
faulty memory or a like cause, there is every  possibility  of  the  witness
veering round to his  former  statement.  Thus,  showing  faultness  of  the
memory in the case of such a witness  would  be  another  object  of  cross-
examining and contradicting him by a party calling the  witness.  In  short,
the rule prohibiting a party to  put  questions  in  the  manner  of  cross-
examination or in a leading form to his own witness is relaxed  not  because
the witness has already forfeited all right to credit but because  from  his
antipathetic altitude or otherwise, the court feels that for doing  justice,
his  evidence  will  be  more  fully  given,  the  truth  more   effectively
extricated and his credit more adequately tested by questions put in a  more
pointed, penetrating and searching way.
    xx                                 xx               xx

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


It was further submitted that the trial court by placing reliance  upon  the
Sat Paul’s case (supra)  found  a  part  of  the  complainant-Jai  Bhagwan’s
testimony reliable and held that the demand of bribe money by the  appellant
from the complainant-Jai Bhagwan to release his brother Krishan  Kumar  (PW-
9) can be said to be  proved.  He  has  placed  reliance  on  the  following
finding and reasons recorded by the  trial  court,  which  relevant  portion
from para 16 reads thus:
“16…It is true that complainant has not testified entirely in terms  of  his
statement recorded u/s 161 Cr.P.C and he was declared hostile and was  cross
examined with the leave of the court. But simply because he did not  testify
strictly as per the prosecution case does not mean  that  his  statement  is
altogether effaced from the record.”

Therefore, he would submit that the decision  of  the  trial  court  on  the
charges framed against the appellant is based on proper  evaluation  of  the
evidence on record which has  been  rightly  accepted  by  the  High  Court.
Therefore, the same cannot be termed as erroneous in law  and  need  not  be
interfered with by this Court in exercise of its appellate jurisdiction.

It was further contended by him  that  though  the  complainant-Jai  Bhagwan
turned hostile witness and he has deposed before the trial court by  stating
that he had inserted the tainted GC notes in the left pocket of  appellant’s
shirt. The trial court has held that  evidence  of  Anoop  Kumar  Verma  and
inspector-Sunder Dev have supported the case of  the  prosecution  who  have
demolished the version given by the complainant-Jai Bhagwan  (PW-2)  in  his
examination-in-chief.

 He has further submitted that as far as proof of  demand  of  Rs.1000/-  as
illegal gratification made by the appellant is concerned,  the  trial  court
has rightly recorded the finding of fact  holding  that  the  appellant  was
caught red-handed accepting the bribe money at the Ditchau Kalan  Bus  Stand
at Najafgarh and this evidence  was  sufficient  enough  to  show  that  the
complainant-Jai Bhagwan (PW-2) was asked by the appellant to bring the  said
amount as illegal gratification for having released Krishan Kumar (PW-9)  on
bail.


 We have carefully heard Mr. Sidhartha Luthra, the  learned  senior  counsel
on behalf of  appellant  and  Mr.  P.S.  Patwalia,  the  learned  Additional
Solicitor General on behalf of respondent-State. On  the  basis  of  factual
and legal aspects of the case and evidence on record produced in  the  case,
it is clear that the High Court has recorded the concurrent findings on  the
charges framed against the Appellant in the impugned judgment and order.  It
has also failed  to  re-appreciate  the  evidence  on  record  properly  and
consider the law on the relevant aspect of the  case.  Therefore,  the  said
findings are not only erroneous in law but also suffer from  error  in  law.
Hence, the same is liable to be set aside.

 We are of the view that as the complainant-Jai Bhagwan in his  examination-
in-chief before the trial court has categorically stated that it was  Ranbir
Singh, ASI (PW-11) who  demanded  Rs.5000/-  for  release  of  his  brother,
Krishan Kumar (PW-9) in connection with the offences registered against  him
in FIR No.662 of 2004, the trial  court  has  wrongly  accepted  a  part  of
testimony of the complainant-Jai Bhagwan while recording  such  findings  on
the charges to convict the appellant when there  is  nothing  on  record  to
show that it is  the  appellant  who  had  demanded  bribe  money  from  the
complainant-Jai  Bhagwan.  In  his  examination-in-chief  before  the  trial
court, he categorically stated thus :-
“……One Police Officer who was in civil uniform,  who  was  the  IO  of  that
case, met me in the Police station told  me  that  I  would  have  to  spend
Rs.5000/- for the bail of my brother……On the directions of that  IO,  I  had
given Rs.4000/- to accused Krishan on account of duress. That  IO  asked  me
that he would send accused Krishan to collect balance  amount  of  Rs.1000/-
to Najafgarh.”


During the trial, the said witness did not support the  prosecution  version
and therefore he was declared as hostile  witness  and  thereafter,  he  was
cross-examined by Mr. Alok Saxena, the learned Additional Public  Prosecutor
to the following effect:
“I did not  mention  in  my  complaint  that  one  ASI  Ranbir  Singh  asked
Constable Krishan Kumar to release my brother and he himself went  for  some
other work and I requested Constable Krishan Kumar  to  release  my  brother
and he demanded  Rs.5000/- from me  for  releasing  my  brother  (confronted
with portion A to A of his complaint Ex. PW2/A……It is incorrect  to  suggest
that accused Krishan Kumar had demanded Rs.5000/- from me  and  today  I  am
giving a false exception that one IO  had  demanded  Rs.5000/-  from  me  in
order to save  the  accused……I  did  not  tell  to  the  police  that  after
receiving signal from the panch witnesses, Raid Officer  came  near  me  and
challenged the accused that he had taken  Rs.1000/-  as  bribe  from  me  on
which accused became perplexed and he took out those treated GC  notes  from
his pocket and threw the same on the ground (confronted with portion B to  B
of his statement-ExPW-2/H recorded).


He has further stated that:

“It is wrong to suggest that accused Krishan had accepted bribe from  me  in
his right hand and kept the same in his  pocket  and  after  seeing  raiding
party. It is further wrong to suggest that I am deposing falsely.”



The High Court has also erroneously appreciated the same and held thus:
“23. …As regards the demand of bribe of Rs.1000/- its  conscious  acceptance
by the appellant, as already noticed, has been  proved  by  PW-6  and  fully
corroborated by PW-12.”


Adverting  to  the  evidence  of  Ranbir  Singh,  ASI  (PW-11)  who  is  the
Investigation Officer in the above case registered  against  Krishan  Kumar;
in his examination-in-chief before the trial court, he stated as under :-
“……After getting Sri Kishan medically examined, the accused brought  him  to
PS Nangloi. No surety of Sri Kishan was present in  the  PS  at  that  time.
After about one hour one Jai Bhagwan brother of  Sri  Kishan  came  to  P.S.
Nangloi and presented the bail bond of his brother Sri Krishan.  I  accepted
the bail bond of Sri Kishan at 10.00 pm and gave instruction to the  accused
to release Sri Kishan. I reported back at P.S. Nangloi at 11.55 pm and  made
the entry vide DD NO. 29/A  dated  29.7.2004.  I  also  recorded  about  the
arrest and release of Sri Kishan in this very DD, although  I  accepted  the
surety bond of Sri Kishan in this very DD, although I  accepted  the  surety
bond of Sri Kishan at 10.00 PM on 29.7.2004.”

From the aforesaid admitted facts stated in his statement  of  evidence,  it
is very clear that it was Ranbir Singh, ASI, who directed the  appellant  to
release Krishan Kumar. Therefore, at the time  of  his  releasing  on  bail,
there was no occasion for the appellant  to  demand  bribe  money  from  the
complainant-Jai Bhagwan as he was already released  on  bail  in  the  above
criminal case by Ranbir Singh, ASI, (PW-11).

We are unable to agree with the above contentions urged by the  learned  ASG
that the complainant-Jai Bhagwan turned hostile witness in the  case  before
the trial court, however, the statement of evidence  of  Anoop  Kumar  Verma
(PW-6) and inspector-Sunder Dev (PW-12) was sufficient to support  the  case
of the prosecution  with  regard  to  acceptance  of  bribe  amount  by  the
appellant from Jai Bhagwan (PW-2). This Court is of the view  that  whenever
a prosecution witness  turns  hostile  his  testimony  cannot  be  discarded
altogether. In this regard, reliance is placed by the ASG  on  the  decision
of this court in the case of Rabindra Kumar Dey v. State of  Orissa[6].  The
relevant para 12 of the aforesaid case reads thus:

“12. It is also clearly well settled that the mere fact that  a  witness  is
declared hostile by the party calling him and allowed to  be  cross-examined
does not make him an unreliable witness so as to exclude his  evidence  from
consideration altogether. In Bhagwan Singh v.  State  of  Haryana  Bhagwati,
J., speaking for this Court observed as follows:

“The prosecution could have even avoided requesting for permission to cross-
examine the witness under Section 154 of the  Evidence  Act.  But  the  fact
that the court gave permission to the prosecutor to  cross-examine  his  own
witness, thus  characterising  him  as,  what  is  described  as  a  hostile
witness, does not completely  efface  his  evidence.  The  evidence  remains
admissible in the trial and there is no legal bar to base a conviction  upon
his testimony if corroborated by other reliable evidence.”
                          (emphasis supplied)

However, in the instant case, from the  material  on  record,  it  is  amply
clear that the complainant-Jai  Bhagwan  turned  hostile  on  two  important
aspects namely, demand and acceptance of bribe by  the  appellant  which  is
sine qua non for constituting the  alleged  offence  under  Sections  7  and
13(1)(d) read with  13(2)  of  the  PC  Act  convicting  the  appellant  and
sentencing him for the period and fine as mentioned above.

As far as the evidence  of  Panch  witness-  Anoop  Kumar  Verma  (PW-6)  is
concerned, in his examination-in-chief, he stated thus:

“…Thereafter, the complainant and the accused walked  for  15-20  steps  and
had some talk with the complainant and the complainant  took  out  those  GC
notes from his pocket and gave in the right hand of accused  which  he  kept
in the left pocket of his shirt…”

Anoop Kumar Verma (PW-6) in his examination-in-chief has not deposed  as  to
the exact conversation  that  took  place  between  the  appellant  and  the
complainant-Jai Bhagwan at the time when  he  had  approached  him  to  give
bribe money. He has simply mentioned  about  “some  talk”  had  taken  place
between them but has failed to bring to light the factum of demand of  bribe
money by the appellant from the complainant-Jai Bhagwan. Thus, it  is  amply
clear that panch witness- Anoop Kumar Verma did not  hear  the  conversation
between the appellant and the complainant-Jai Bhagwan. Therefore, there  was
no occasion for both the courts below  to  reach  the  conclusion  that  the
appellant demanded any bribe from the complainant-Jai Bhagwan.

The Investigation Officer (PW-10) in his evidence, has not at all spoken  of
the contents  of  the  statement  of  the  complainant-Jai  Bhagwan  (PW-2),
recorded by him under Section 161 of the Cr.P.C. Further, PW-2 in the  light
of the  answers  elicited  from  him  in  the  cross-examination  by  Public
Prosecutor, with regard to the contents  of  161  statement  which  relevant
portions are marked in his cross-examination and the  said  statements  were
denied by him, the prosecution was required to prove the said statements  of
the PW-2 through the Investigating Officer to show the fact  that  PW-2  Jai
Bhagwan in his evidence has given contrary statements to  the  Investigation
Officer at the  time  of  investigation  and,  therefore,  his  evidence  in
examination-in-chief has no evidentiary value.  The  same  could  have  been
used by the prosecution after it had strictly complied with Section  145  of
the Indian Evidence Act, 1872. Therefore, the I.O.  should  have  spoken  to
the  above  statements  of  PW2  in  his  evidence  to  prove  that  he  has
contradicted in his earlier Section 161  statements  in  his  evidence  and,
therefore, his evidence cannot be discarded to prove the prosecution case.

It becomes amply clear from the perusal of the evidence of  PW-10,  I.O.  in
the case that the same has not been  done  by  the  prosecution.  Thus,  the
statements of PW-2  marked  from  Section  161  of  Cr.P.C.  in  his  cross-
examination cannot be said to be proved in the case to place  reliance  upon
his evidence to record the findings on the charge. The position  of  law  in
this regard is well settled by this Court in the  case  of  V.K.  Mishra  v.
State of Uttarakhand[7]. The relevant paras are extracted hereinbelow:
“16. Section 162 CrPC bars use of statement of  witnesses  recorded  by  the
police except for the limited purpose of contradiction of such witnesses  as
indicated there. The statement made by a witness  before  the  police  under
Section 161(1) CrPC can be used only for the purpose of  contradicting  such
witness on what he has stated at the trial as laid down in  the  proviso  to
Section 162(1) CrPC. The statements under Section 161 CrPC  recorded  during
the investigation are not substantive pieces of evidence  but  can  be  used
primarily for the limited purpose: (i) of contradicting such witness  by  an
accused under Section 145 of the Evidence Act;  (ii)  the  contradiction  of
such witness also by the prosecution but with the leave of  the  Court;  and
(iii) the re-examination of the witness if necessary.

17. The court cannot suo motu make use of statements to  police  not  proved
and ask questions with reference to them which  are  inconsistent  with  the
testimony of the witness in the court. The words in  Section  162  CrPC  “if
duly proved” clearly show that the record  of  the  statement  of  witnesses
cannot be admitted in evidence straightaway nor can be looked into but  they
must be duly proved for the purpose of contradiction by eliciting  admission
from the  witness  during  cross-examination  and  also  during  the  cross-
examination  of  the  investigating  officer.  The  statement   before   the
investigating officer can be used for contradiction but  only  after  strict
compliance with  Section  145  of  the  Evidence  Act  that  is  by  drawing
attention to the parts intended for contradiction.

18. Section 145 of the Evidence Act reads as under:

‘145. Cross-examination as to previous statements in writing.—A witness  may
be cross-examined as to previous  statements  made  by  him  in  writing  or
reduced into writing, and relevant to  matters  in  question,  without  such
writing being shown to him, or being proved;  but,  if  it  is  intended  to
contradict him by the writing, his attention must, before  the  writing  can
be proved, be called to those parts of it which  are  to  be  used  for  the
purpose of contradicting him.’

19. Under Section 145 of the Evidence Act when it is intended to  contradict
the witness by his previous statement reduced into  writing,  the  attention
of such witness must be called to those parts of it which  are  to  be  used
for the purpose of contradicting him, before the writing can be used.  While
recording the deposition of a witness, it becomes  the  duty  of  the  trial
court to ensure that the part of the  police  statement  with  which  it  is
intended to contradict the witness is brought to the notice of  the  witness
in his cross-examination. The attention of witness is  drawn  to  that  part
and this must reflect in his cross-examination by  reproducing  it.  If  the
witness admits the part intended to contradict him,  it  stands  proved  and
there is no need to further proof of  contradiction  and  it  will  be  read
while appreciating the evidence. If he denies having made that part  of  the
statement, his attention must  be  drawn  to  that  statement  and  must  be
mentioned in the deposition. By this process  the  contradiction  is  merely
brought  on  record,  but  it  is  yet  to  be   proved.   Thereafter   when
investigating officer is examined in the  court,  his  attention  should  be
drawn to the passage marked for the purpose of contradiction, it  will  then
be proved in the deposition  of  the  investigating  officer  who  again  by
referring to the police statement will depose about the witness having  made
that  statement.  The  process  again  involves  referring  to  the   police
statement and culling out that part with which the maker  of  the  statement
was intended to be contradicted. If the  witness  was  not  confronted  with
that part of the statement with which the defence wanted to contradict  him,
then the court cannot suo motu make use of statements to police  not  proved
in compliance with Section 145 of the  Evidence  Act  that  is,  by  drawing
attention to the parts intended for contradiction.”
                   (emphasis laid by this Court)

Thus, the contradiction of evidence of the  complainant-Jai  Bhagwan  (PW-2)
does not prove the factum of demand of  bribe  by  the  appellant  from  the
complainant-Jai Bhagwan as the  statement  recorded  under  Section  161  of
Cr.P.C. put to him in his cross-examination was not  proved  by  B.S.  Yadav
(PW-10) by speaking to those statements in his evidence and  therefore,  the
evidence of PW-2 is not contradicted and proved his  Section  161  statement
in the case.

Further, the appellant in his examination  under  Section  313  of  Code  of
Criminal Procedure, 1973  has, inter alia, stated thus:

“Q 4: it is in evidence against you that  on  28.07.2004  you  demanded  Rs.
5000/- as bribe from complainant Jai Bhagwan and you accepted Rs. 4000/-  as
bribe from him and asked the complainant to bring Rs. 1000/-  on  30.07.2004
near Dichau Kalan bus stand, Najafgarh. What you have to say?

Ans. It is incorrect.

      XXX        XXX          XXX

Q 14: It is evidence against you that at about 7:00 p.m. you  came  and  you
met with complainant and moved towards one water rairi and you demanded  and
accepted Rs. 1000/- as bribe from the complainant in the presence  of  panch
witness with your right hand and kept  the  same  in  left  pocket  of  your
shirt. What you have to say?

Ans. It is incorrect.

Q 15: It is in further evidence against  you  that  in  the  meantime  panch
witness gave pre-determined signal and thereafter  the  members  of  raiding
party came and you were apprehended  and  panch  witness  told  the  raiding
officer that you had demanded and accepted the bribe of Rs. 1000/- from  the
complainant (PW-2) with your right hand and  kept  the  same  in  your  left
pocket of your shirt. What you have to say?

Ans. It is incorrect.”


After a careful reading of the evidence of the complainant-Jai Bhagwan  (PW-
2), statements made by the appellant in his examination  under  Section  313
of Cr.P.C. as  well  as  the  evidence  of  Anoop  Kumar  Verma  (PW-6)  and
inspector-Sunder Dev (PW-12), it is clear that there was no demand of  bribe
money by the appellant from the complainant-Jai Bhagwan.

It is well settled position of law 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  PC  Act.  The  same
legal principle has been held by this  Court  in  the  case  of  B.  Jayaraj
(supra), A. Subair (supra) and P. Satyanarayana Murthy  (supra)  upon  which
reliance is rightly placed by the learned senior counsel on  behalf  of  the
appellant. The relevant paragraph 7  from  B.  Jayaraj  case  (supra)  reads
thus:
“7. Insofar as the offence under Section 7 is concerned,  it  is  a  settled
position in law that demand of illegal gratification  is  sine  qua  non  to
constitute the said offence and  mere  recovery  of  currency  notes  cannot
constitute the offence under Section  7  unless  it  is  proved  beyond  all
reasonable doubt that the accused voluntarily accepted the money knowing  it
to be a bribe. The above position has been succinctly laid down  in  several
judgments of this Court. By way of illustration reference  may  be  made  to
the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI.”
                          (emphasis supplied)
In the case of P. Satyanarayana Murthy (supra), it was held  by  this  Court
as under:
“21. In State of Kerala and another vs. C.P. Rao,  this  Court,  reiterating
its earlier dictum, vis-à-vis the same offences, held that mere recovery  by
itself, would not prove the charge against the accused  and  in  absence  of
any evidence to prove payment of bribe or  to  show  that  the  accused  had
voluntarily accepted the money knowing it to be bribe, conviction cannot  be
sustained.

22. In a recent enunciation by this Court to  discern  the  imperative  pre-
requisites of Sections 7 and 13 of the Act, it has  been  underlined  in  B.
Jayaraj in unequivocal terms, that mere possession and recovery of  currency
notes from an accused  without  proof  of  demand  would  not  establish  an
offence under Sections 7 as well as 13(1)(d)(i)&(ii)  of  the  Act.  It  has
been propounded that in the absence of  any  proof  of  demand  for  illegal
gratification, the use of corrupt or illegal means or abuse of  position  as
a public servant to obtain any valuable thing or pecuniary advantage  cannot
be held to be proved. The proof of demand, thus, 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 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.

23. The proof of demand of illegal gratification, thus, is the  gravamen  of
the offence under Sections 7  and  13(1)  (d)(i)&(ii)  of  the  Act  and  in
absence  thereof,  unmistakably  the  charge  therefore,  would  fail.  Mere
acceptance of any amount  allegedly  by  way  of  illegal  gratification  or
recovery thereof, dehors the proof of demand, ipso facto, would thus not  be
sufficient to bring home the charge under these two 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.”
                        (emphasis supplied)








Further, in the case of Satvir Singh v. State of Delhi[8],  this  Court  has
held thus:

“34. This Court, in K.S. Panduranga  case  has  held  that  the  demand  and
acceptance of the amount of  illegal  gratification  by  the  accused  is  a
condition precedent to constitute an  offence,  the  relevant  paragraph  in
this regard from the abovesaid decision is  extracted  hereunder:  (SCC  pp.
740-41, para 39)

“39. Keeping in view that  the  demand  and  acceptance  of  the  amount  as
illegal gratification is a condition precedent for constituting  an  offence
under the Act, it is to be noted  that  there  is  a  statutory  presumption
under Section 20 of the Act  which  can  be  dislodged  by  the  accused  by
bringing on record some evidence,  either  direct  or  circumstantial,  that
money was accepted other than for the motive or  the  reward  as  stipulated
under Section 7 of the Act. When some explanation is offered, the  court  is
obliged to consider the explanation under Section 20  of  the  Act  and  the
consideration  of  the  explanation  has  to  be  on   the   touchstone   of
preponderance of probability. It is not to be proven beyond  all  reasonable
doubt. In the case at hand, we are disposed to think  that  the  explanation
offered by the accused does not deserve any acceptance and, accordingly,  we
find that the finding recorded on that score by the learned trial Judge  and
the stamp of approval given  to  the  same  by  the  High  Court  cannot  be
faulted.”
                                            (emphasis supplied)

35. The learned Senior Counsel for the appellant has  also  placed  reliance
upon the case of Banarsi Dass referred to supra wherein it  was  held  that:
(SCC pp. 456-57, para 24)

“24. In M.K. Harshan v. State of  Kerala  this  Court  in  somewhat  similar
circumstances, where the tainted  money  was  kept  in  the  drawer  of  the
accused who denied the same and said that it was put in the  drawer  without
his knowledge, held as under: (SCC pp. 723-24, para 8)

‘8. … It is in this context the courts have cautioned  that  as  a  rule  of
prudence, some corroboration is necessary. In all  such  type  of  cases  of
bribery, two aspects are important. Firstly, there  must  be  a  demand  and
secondly, there must be  acceptance  in  the  sense  that  the  accused  has
obtained the illegal gratification. Mere demand by itself is not  sufficient
to establish the offence. Therefore, the other  aspect,  namely,  acceptance
is very important and when the accused has come forward  with  a  plea  that
the currency notes were put in the drawer without his knowledge, then  there
must be clinching evidence to show that it was with the  tacit  approval  of
the accused that the money  had  been  put  in  the  drawer  as  an  illegal
gratification.’…”
              (emphasis supplied)


In view of the aforesaid reasons, the approach of both the trial  court  and
the High Court in the case is erroneous as both the courts have relied  upon
the evidence  of  the  prosecution  on  the  aspect  of  demand  of  illegal
gratification from the  complainant-Jai  Bhagwan  (PW-2)  by  the  appellant
though there is no substantive evidence in this  regard  and  the  appellant
was  erroneously  convicted  for  the  charges  framed  against   him.   The
prosecution has failed to prove the factum of demand of bribe money made  by
the appellant from the complainant-Jai Bhagwan (PW-2),  which  is  the  sine
qua non for convicting him for the offences punishable under Sections 7  and
13(1)(d) read with Section 13(2) of the PC Act. Thus, the impugned  judgment
and order of the High Court is not only  erroneous  but  also  suffers  from
error in law and therefore, liable to be set aside.

For the reasons stated supra, the impugned judgment and order  of  the  High
Court as well as the trial court are set aside. The appeal is  allowed.  The
Jail Superintendent is directed to release the appellant forthwith from  the
Jail if he is not required in connection with any other case.  The  Registry
is directed to communicate the above portion of the order to  the  concerned
Jail Superintendent to comply with the directions issued to him.

                       ……………………………………………………CJI.
                       [T.S. THAKUR]



                                …………………………………………………………J.
                                [V. GOPALA GOWDA]

New Delhi,
January 6, 2016
-----------------------
[1]    (2014) 13 SCC 55
[2]    (2009) 6 SCC 587
[3]    (2011) 6 SCC 450
[4]     (2015) 10 SCC 152
[5]    AIR 1976 SC 294
[6]    (1976) 4 SCC 233
[7]     (2015) 9 SCC 588
[8]     (2014) 13 SCC 143

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