REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 630 OF 2003

Banarsi Dass Appellant

Vs.

State of Haryana Respondent

JUDGMENT

Swatanter Kumar, J.

1. The present appeal under Article 136 of the

Constitution of India is directed against the final judgment

and order of conviction dated 20.11.2002 passed by the learned

Single Judge of the High Court of Punjab & Haryana at

Chandigarh. Learned counsel appearing for the appellant has

raised challenge to the impugned judgment, inter alia, but

primarily on the following grounds:

(a)There is no evidence to prove demand and voluntary

acceptance of the alleged bribe so as to attract the

offence under Section 5(2) of the Prevention of Cor-

ruption Act, 1947 (For short, ‘the Act’). Reliance

has been placed by the judgment of this Court in the

case of C.M. Girish Babu vs. CBI, Cochin, High Court

of Kerala, [2009 (3) SCC 779].

(b)The High Court as well as the trial Court have passed

an order of conviction despite the fact that there

was serious contradiction between the statements of

the prosecution witnesses. And in fact, there was

no cogent and reliable evidence to support the

charge against the appellant. Even the recovery has

not been proved in accordance with law. These fac-

tors clearly justify the benefit of doubt in favour

of the appellant and thus entitling the accused of

judgment of acquittal.

(c)The punishment awarded to the appellant is unreason-

ably excessive. The appellant has faced the agony

of trial and thereafter other proceedings arising

therefrom for the last 20 years. In these circum-

stances, the appellant has even faced great hardship

having lost his livelihood which adversely affected

the future of his family members. While relying upon

the judgment of this Court in the case of Aditya

Nath Pandey v. State of U.P. [2000 (9) SCC 206], it

is contended that the sentence undergone would suf-

fice and meet the ends of justice. Of course, this

argument has been advanced without prejudice to the

above contentions.

2. On behalf of the State, it has been argued that the

judgment of conviction and sentence is duly supported by the

oral and documentary evidence produced by the prosecution. The

prosecution has been able to bring home the charge against the

accused. The ingredients of Section 5(2) of the Act as well

as Section 161 of the Indian Penal Code (for short, ‘the IPC‘)

are duly satisfied. The appellant being a public servant has

not to indulge in demanding bribe. Thus, no leniency is

called for in favour of the accused. In order to examine the

merit or otherwise the contentions raised, it is important for

us to refer to the basic facts as emerged from the records,

giving rise to the present appeal.

3. The appellant was newly posted as patwari in Village

Piruwala. One Pritam Kaur had agricultural land at Village

Piruwala. Her daughter, namely, Sat Pal Kaur was informed

during 1986 that Khasra Girdawaris of Pritam Kaur’s land had

been recorded in the name of Jit Singh and others as tenants

by the previous Patwari. Smt. Sat Pal Kaur took up the matter

with those tenants who admitted that the Khasra Girdawaris has

been wrongly recorded by the Ex-Patwari in their favour.

She also obtained no-objection on the application moved by her

mother which was submitted to the Tehsildar Chachhrauli. The

application was moved for the purposes of incorporating the

necessary changes at the time of the next Khasra Girdawaris in

the coming season. Smt. Sat Pal Kaur contacted the village

Patwari (appellant herein) in the Kharif season for recording

Khasra Girdawaris in favour of her mother during the period of

October, 1986. It is further the case of the prosecution that

the appellant demanded illegal gratification of Rs. 900/-

(rupees nine hundred) but that deal was struck at Rs. 400/-

(rupees four hundred) for making the requisite changes, in the

presence of Gurmej Singh, a taxi driver, whose taxi had been

engaged by Sat Pal Kaur while visiting the appellant. Sat Pal

Kaur contacted Shri Hari Singh, Deputy Superintendent of

Police, Jagadhri at Bilaspur where Shri S.K. Joshi, Sub-

Divisional Executive Magistrar, Jagadhri, was also present.

She reported the matter. Her statement was recorded. She

also produced four currency notes of the denomination of Rs.

100/- each and the same were signed both by Hari Singh, DSP

and S.K. Joshi, Sub-divisional Executive Magistrate. They

went to Patwari of Chachhrauli. They were told by the

officers that on demand she should hand over the money and

once money was accepted she should inform the Police Station

and the trap was accordingly planned. Sat Pal Kaur

accompanied by Gurmej Singh left for Patwar-khana which was

about one km. from the Police Station, Chachhrauli. She took

Rs. 400/- duly signed by the said officers to pay as

gratification to the Patwari. The money was given to the

appellant and accordingly Gurmej Singh reported the matter to

Shri Hari Singh, DSP and Shri S.K. Joshi at the Police Station.

They rushed to the spot in a jeep that was parked at some

distance from Patwar-khana. On actual search of the appellant,

four currency notes duly signed by the officers were recovered

from the front left pocket of the shirt. Recovery memo for

the same was prepared. The tenants had raised no objection

and that application was also found on the table of the

appellant in Patwar-khana which was taken into possession.

After conclusion of the trap, the appellant was arrested and

a case was registered with the Police Station Chachhrauli.

After completion of the investigation, a challan regarding

commission of offence under Section 161 of the IPC and under

Section 5(2) of the Act was filed before the Court of competent

jurisdiction. The Court framed charges on both these offences

and the appellant was put to trial.

4. The prosecution in support of its case examined Tara

Chand Pawar (PW-1), Smt. Sat Pal Kaur (PW-2), Rajiv Sharma

(PW-3), Gurmej Singh (PW-4), Daya Singh (PW-5), Subhash

Chander Patwari (PW-6), Shiv Dayal Reader (PW-7), Prem Bihari

Lal (PW-8), Ram Chander, ASI(PW-9), Shri S.K. Joshi (PW-10)

and Shri Hari Ram, DSP (PW-11) and closed its evidence. When

the appellant was examined under Section 313 of Criminal

Procedure Code, 1973 (for short ‘the Cr.P.C.’), he denied the

allegations leveled against him and claimed to be innocent.

5. The special Judge, Ambala, by order dated 30.01.1988

convicted and sentenced the appellant under Section 161 of the

IPC to undergo rigorous imprisonment for three years and under

Section 5(2) of the Act to undergo rigorous imprisonment for

four years and to pay a fine of Rs.1,000/-. Feeling

aggrieved by this order, the appellant filed Criminal Appeal

No. 83-SB of 1988 in the High Court of Punjab & Haryana at

Chandigarh. The High Court by order dated 20.11.2002

dismissed the appeal holding that the appellant was rightly

convicted.

6. To establish the charge against the appellant-accused,

the prosecution in relation to the demand and receipt of the

illegal gratification, had examined mainly four witnesses; Sat

Pal Kaur (PW-2), Gurmej Singh (PW-4), S.K. Joshi (PW-10) and

Hari Singh (PW-11). Out of these material witnesses, PW-2 and

PW-4 both were declared hostile and were cross-examined by the

public prosecutor. Leave to that effect was granted by the

Court. PW-2 had stated in her examination-in-chief that she

apprehended that appellant wanted illegal gratification and for

that reason he was not recording the change in Khasra

Girdawaris in favour of her mother. PW-2 further stated that

she had learnt from co-villagers that Rs.300-400/- as reward

was to be given for such a job. She had contacted the police

thereafter. She was confronted with her statement EX.PB

recorded under Section 161 of the IPC wherein she had stated

that Banarsi Dass had demanded illegal gratification of Rs.

400/- from her in the presence of Gumrej Singh. She also

stated that she had signed the memos but she did not read

them as she was quite puzzled. In the cross-examination,

she also stated that “earlier to the day of the raid, Banarsi

Dass has demanded Rs. 900/-. It is correct that accused

Banarsi Dass had apologized to me and I have accepted his

apology”. She further volunteered, “it is my humble request

to the Court that the Court should also accept the apology of

the accused who has got small children to maintain”.

Thereafter, she proceeded to state that she had paid a sum of

Rs. 400/- to the accused for recording girdwari of the current

crop in favour of the mother. In her cross-examination, it

has also been stated that when she placed Rs. 400/- on his

table, the accused had already recorded girdawari in favour of

Jit Singh and others and the same had been verified by the

Kanungo. She (PW-2) had an altercation with the accused as

to why he had recorded Girdwari in favour of Jit Singh and

others. Then she placed Rs. 400/- on the table wherefrom the

same was picked up by the police. Gumrej Singh (PW-4), the

other witness who was also declared hostile and who was

subjected to cross-examination by the prosecution, stated that

the appellant had not accepted or demanded any money from Sat

Pal Kaur in his presence. He denied that he had made any

statement to the police (Ex.PW-3/A). His statement under

Section 161 of the IPC was completely denied by him. According

to him, he had taken Sat Pal Kaur to Chachhrauli but he

remained sitting in the car, 100 yards away from Patwar-khana

and he did not know the accused as he hailed from Chachhrauli.

7. Witnesses PW-10 and PW-11 are the Senior Officers of

the Administration and the Police. The complainant complained

to them about the appellant demanding bribe from her for

correcting the Khasra Girdawaris in the name of the mother of

PW-2. A trap was planned. In furtherance to which PW-2 had

gone to the Patwar-khana and gave Rs. 400/- (the signed notes

of Rs.100/- each) upon which the Gurmej Singh was supposed to

have informed the police, about the acceptance of money by the

appellant. Thereafter, the police came to the spot and

recovered the money from the front left pocket of the

appellant’s shirt. The search of the appellant was conducted

by the police and money was recovered (Ex.P1 to Ex.P4) for

which memo Ex.PD. was prepared. The tainted notes, shirt

and even the money otherwise recovered from the pocket of the

appellant were taken into custody vide these exhibits.

8. It is apparent that PW-10 and PW-11 were not present in

the Patwar-khana when the money was demanded and accepted by

the appellant. The prosecution primarily relied on the two

witnesses PW-2 and PW-4 respectively who were declared

hostile. Certainly the prosecution can rely upon the statements

of these witnesses and list their depositions made before the

Court by having those statements corroborated or

contradicted, as the case may be, by their earlier statements

recorded under Section 161 of the I.P.C. At this stage, the

finding recorded by the High Court can usefully be referred to:

“PW-2 Smt. Sat Pal Kaur has clearly stated that

accused has informed her that Girdawari of her

mother’s land had been recorded in the name of Jit

Singh and others as tenants. She had contacted Jit

Singh and others and obtained no objection from them.

The said application Ex.PA was forwarded by her

through her servant to the Tehsildar. She had

contacted Banarsi Dass and requested him to change

the said girdawari in her mother’s name, who told

her that he will do so at the time of recording of

khasra girdawari in the next season. She

apprehended that he wanted illegal gratification and

for that reason, he was not recording the change of

girdawari in the name of her mother. She contacted

the Police and informed them about the matter. She

had visited Patwar-khana, where Banarsi Dass was

present and placed Rs. 400/- on his table. In the

meantime, police party came and seized that money.

She was declared a hostile witness. In cross-

examination, she admitted her statement made under

Section 161 IPC. She also admitted that Gurmej

Singh was not present when Banarsi Dass accused had

made a demand of illegal gratification of Rs. 400/-.

She admitted that it is correct that Banarsi Dass

accused has apologized from her and she had accepted

his apology. She further volunteered that it is her

humble request to the Court that the Court should

also accept the apology of the accused. The police

party was sitting in the Thana. So. when the

recovery was made by the police from the appellant-

accused, somebody must have informed the police

about the handing of the bribe and Gurmej Singh was

the only person. Shri S.K. Joshi, Sub-Divisional

Magistrate, Kalka has appeared as PW10. He has

searched Smt. Satpal Kaur and her driver. Gurmej

Singh visited the Police Station in the afternoon and

complained that Shri Banarsi Dass Patwari Halqa has

demanded Rs. 900/- for the correction of Khasra

girdawari. Shri Hari Singh recorded the statement

of Sat Pal Kaur and made search of her person and

after the search, Rs.400/-, which were signed by him

and Shri Hari Singh, were given to her. The DSP had

prepared memo Ex-PC which was signed by him. He

along with DSP, Smt. Sat Pal Kaur and Gurmej Singh

went to Police Station Chachrauli and then went to

Patwar-khana. Gurmej Singh was directed to come to

the Police Station in case the accused accepted the

money. After receiving message, they raided Patwar-

khana. Accused was found sitting in the Patwar-khana

and his person was searched by the DSP in his

presence and currency notes Ex.P1 to Ex.P4 were

recovered from the front pocket of the shirt,

which the accused was wearing. These were taken into

possession vide memo Ex.PD. Hari Singh also

supported the same. So, if merely shadow witness

had turned hostile, accused-appellant cannot be

acquitted. Mr. S.K.Joshi ( PW-10) can also be

considered as a witness of recovery as currencynotes

handed over to Smt. Sat Pal Kaur after being signed

by PW-10 and PW-11 vide memo Ex.PC was recovered by

DSP (PW-11) vide memo Ex.PD in the presence of Sat

Pal Kaur PW-2 and Shri S.K. Joshi, PW-10”.

9. The above findings recorded by the High Court show that

the Court relied upon the statements of PW-10 and PW-11. It is

further noticed that recovery of currency notes Ex. P-1 to P-4

from the shirt pocket of the accused, examined in light of Ex.

PC and PD, there was sufficient evidence to record the finding

of guilt against the accused. The Court remained uninfluenced

by the fact that the shadow witness had turned hostile, as it

was the opinion of the Court that recovery witnesses fully

satisfied the requisite ingredients. We must notice that the

High Court has fallen in error in so far as it has drawn the

inference of demand and receipt of the illegal gratification

from the fact that the money was recovered from the accused.

10. It is a settled canon of criminal jurisprudence that

the conviction of an accused cannot be founded on the basis of

inference. The offence should be proved against the accused

beyond reasonable doubt either by direct evidence or even by

circumstancial evidence if each link of the chain of events is

established pointing towards the guilt of the accused. The

prosecution has to lead cogent evidence in that regard. So far

as it satisfies the essentials of a complete chain duly

supported by appropriate evidence. Applying these tests to the

facts of the present case, P-10 and P-11 were neither the eye-

witnesses to the demand nor to the acceptance of money by the

accused from Smt. Sat Pal Kaur (PW-2). It is unfortunate but

true that both PW-2 and PW-4 made statements before the Court

which were quite different from the one made by them before the

police during the investigation under Section 161 of the IPC.

Gurmej Singh (PW-4) completely denied the incident and refused

to acknowledge that the sum of Rs. 900/- only was demanded by

the accused from PW-2 in his presence and that the money was

accepted in the Patwar-khana by the accused. PW-2 obviously

has not stated the complete truth before the Court. Though

after being declared hostile in her cross-examination she has

supported some part of the prosecution case, but she has

virtually denied the essential ingredients to bring home the

guilt of the accused either under Section 5 (2) of the Act or

under Section 161 of the IPC. She seems to have forgiven the

accused for making such a demand and made such a statement

before the Court that the Court should also ignore the offence.

We are not and should not even be taken to have suggested that

PW-10 and PW-11 have not made correct statement before the

Court or that the Court has disbelieved any part of their

statement. But, fact of the matter remains that their

statement with regard to demand and acceptance is based on

hearsay i.e. what was told to them together by PW-2 and even by

PW-4 at that stage. The money was certainly recovered from the

pocket of the accused vide memo Ex. P-D. We, therefore, do not

accept the contention on behalf of the accused that the amount

was not recovered and the recovery is improper in law. Ex. P-D

has duly been attested by witnesses. Thus, it cannot be said

that the recovery from the pocket of the accused is

unsustainable in law and is of no consequence.

11. To constitute an offence under Section 161 of the IPC

it is necessary for the prosecution to prove that there was

demand of money and the same was voluntarily accepted by the

accused. Similarly, in terms of Section 5 (1) (d) of the Act,

the demand and acceptance of the money for doing a favour in

discharge of its official duties is sine qua non to the

conviction of the accused. In the case of M.K. Harshan v.

State of Kerala [1996 (11) SCC 720], 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 :

“.......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. Unfortunately, on

this aspect in the present case we have no other

evidence except that of PW-1. Since PW-1’s evidence

suffers from infirmities, we sought to find some

corroboration but in vain. There is no other witness

or any other circumstance which supports the evidence

of PW-1 that this tainted money as a bribe was put in

the drawer, as directed by the accused. Unless we are

satisfied on this aspect, it is difficult to hold

that the accused tacitly accepted the illegal

gratification or obtained the same within the meaning

of Section 5(1)(d) of the Act, particularly when the

version of the accused appears to be probable”.

12. Reliance on behalf of the appellant was placed upon the

judgment of this Court in the case of C.M. Girish Babu (supra)

where in the facts of the case the Court took the view that

mere recovery of money from the accused by itself is not enough

in absence of substantive evidence for demand and acceptance.

The Court held that there was no voluntary acceptance of the

money knowing it to be a bribe and giving advantage to the

accused of the evidence on record, the Court in para 18 and 20

of the judgment held as under :

“18. In Suraj Mal v. State (Delhi Admn.) [1979 (4)

SCC 725] this Court took the view that (at SCC

p. 727, para 2) mere recovery of tainted money

divorced from the circumstances under which it is

paid is not sufficient to convict the accused when

the substantive evidence in the case is not reliable.

The mere recovery by itself cannot prove the charge

of the prosecution against the accused, in the

absence of any evidence to prove payment of bribe or

to show that the accused voluntarily accepted the

money knowing it to be bribe.

20. A three-Judge Bench in M. Narsinga Rao v. State

of A.P.[2001 (1) SCC 691: SCC (Cri) 258] while

dealing with the contention that it is not enough

that some currency notes were handed over to the

public servant to make it acceptance of gratification

and prosecution has a further duty to prove that what

was paid amounted to gratification, observed: (SCC p.

700, para 24)

“24. … we think it is not necessary to deal with the

matter in detail because in a recent decision

rendered by us the said aspect has been dealt with at

length. (Vide Madhukar Bhaskarrao Joshi v. State of

Maharashtra [2000 (8) SCC 571]).The following

statement made by us in the said decision would be

the answer to the aforesaid contention raised by the

learned counsel: (Madhukar case, SCC p. 577, para 12)

‘12. The premise to be established on the facts for

drawing the presumption is that there was payment or

acceptance of gratification. Once the said premise is

established the inference to be drawn is that the

said gratification was accepted “as motive or reward”

for doing or forbearing to do any official act. So

the word “gratification” need not be stretched to

mean reward because reward is the outcome of the

presumption which the court has to draw on the

factual premise that there was payment of

gratification. This will again be fortified by

looking at the collocation of two expressions

adjacent to each other like “gratification or any

valuable thing”. If acceptance of any valuable thing

can help to draw the presumption that it was accepted

as motive or reward for doing or forbearing to do an

official act, the word “gratification” must be

treated in the context to mean any payment for giving

satisfaction to the public servant who received it.”

13. In fact, the above principle is no way derivative but

is a reiteration of the principle enunciated by this Court in

Suraj Mal case (supra), where the Court had held that mere

recovery by itself cannot prove the charge of prosecution

against the accused in the absence of any evidence to prove

payment of bribe or to show that the accused voluntarily

accepted the money. Reference can also be made to the judgment

of this Court in Sita Ram v. State of Rajasthan [1975 (2) SCC

227], where similar view was taken.

14. The case of C.M. Girish Babu (supra) was

registered under the Prevention of Corruption Act, 1988,

Section 7 of which is in pari materia with Section 5 of the

Prevention of Corruption Act, 1947. Section 20 of the 1988 Act

raises a rebuttable presumption where the public servant

accepts gratification other than legal remuneration, which

presumption is absent in the 1947 Act. Despite this, the Court

followed the principle that mere recovery of tainted money

divorced from the circumstances under which it is paid would

not be sufficient to convict the accused despite presumption

and, in fact, acquitted the accused in that case.

15. In light of the above principles enunciated by the

Court now we may examine the evidence on record with specific

emphasis to the demand and acceptance of illegal gratification

for changing Khasra Girdawaris in the name of mother of Smt.

Sat Pal Kaur (PW-2). Besides, the part of her statement which

we have aforenoticed, she also stated that she had never made

the statement Ex. PW-3/A before the police. Even on the memos

which have been signed by her she stated that she had signed

them without reading the same. She was educated up to 4th

Class only. In her cross-examination she does support a few

facts of the prosecution but on the material circumstance/fact

she has completely taken a somersault while making a statement

before the Court. Gurmej Singh, besides disowning his

statement under Section 161 of the IPC in its entirety, stated

that he was not present either when the bribe was demanded or

when the same was accepted. The accused, when was put to

incriminating evidence against him in terms of Section 313 of

the Cr.P.C., did admit that PW-2 (complainant) had come to the

office of Patwar-khana with the police but stated that no other

persons had accompanied them. PW-2 insisted on chaning the

Khasra Girdawaris and after she got annoyed, she got him

falsely implicated. Money alleged to have been recovered from

him, in fact, was lying on the table without his knowledge or

demand. PW-2 has also stated in her statement that she kept

the money on the table after some altercation with the accused.

In these circumstances, it is difficult for the Court to hold

that the prosecution has established the offence against the

accused, that he accepted the money voluntarily as illegal

gratification. The effect of the statement of PW-2 and PW-4

has a substantial adverse effect on the case of the

prosecution. There are other witnesses examined by the

prosecution which are formal witnesses and in the absence of

support of PW-2 and PW-4, the prosecution has not been able to

establish the charge (demand and acceptance of illegal

gratification by the accused), thus entitling him to some

benefit on the technical ground of two witnesses i.e. PW-2 and

PW-4, turning hostile.

16. In light of the statement of two hostile witnesses PW-2

and PW-4, the demand and the acceptance of illegal

gratification alleged to have been received by the accused for

favouring PW-2 by recording the Khasra Girdawaris in the name

of her mother cannot be said to have been proved by the

prosecution in accordance with law. We make it clear that it

is only for the two witnesses having turned hostile and they

having denied their statement made under Section 161 of the

I.P.C. despite confrontation, that the accused may be entitled

to accquital on technical ground. But, in no way we express

the opinion that the statement of witnesses including official

witnesses PW-10 and PW-11, are not accepted by the Court.

Similarly, we have no reason to disbelieve the recovery of Ex.

P-1 to P-4 vide Ex. P-D.

17. In the light of this we are of the considered view that

the judgment of the High Court convicting the accused for the

offences with which the accused was charged cannot be sustained

in law.

18. For the reasons aforerecorded and particularly in view

of the fact that two witnesses turned hostile, giving the

benefit of doubt on technical ground to the accused, we hereby

set aside the judgement of the High Court and acquit the

accused of both the charges i.e. under Section 161 of the IPC

and under Section 5 (2) of the Act. The appeal is accordingly

allowed leaving the parties to bear their own costs. Bail

bonds, if any, furnished by the appellant be released.

.......................J.

[ AFTAB ALAM ]

.......................J.

[ SWATANTER KUMAR ]

New Delhi

April 5, 2010.