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).
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.
-----------------------
8
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 tointerfere 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.
-----------------------
8
