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CASE NO.:

Appeal (crl.) 1186 of 1999

PETITIONER:

Ganga Kumar Srivastava

RESPONDENT:

The State of Bihar

DATE OF JUDGMENT: 20/07/2005

BENCH:

B.N.Agrawal & Tarun Chatterjee

JUDGMENT:

JUDGMENT

TARUN CHATTERJEE, J.

This appeal is directed against an order of conviction and

sentence recorded against the appellant under section 161 of the

Indian Penal Code (in short "IPC") and section 5(2) of the Prevention

of Corruption Act ( in short "the Act" ). The appellant was tried by

the Special Judge (Vigilance) North Bihar, Patna. For each of the

two offences as indicated above for which the appellant was

convicted, he was sentenced to undergo imprisonment for one year

which will run concurrently. This conviction of the appellant was

maintained by the High Court in appeal.

The only question that arises for our consideration in this appeal

is whether on the evidence and materials on record, the conviction and

sentence recorded against the appellant are justified or they require to

be set aside?

Briefly stated, the facts of the case giving rise to this appeal

before this Court may be enumerated in the following manner:

On 25th of June, 1985, Harendra Kumar Singh, the complainant

(PW6) filed an application (Exhibit 8) alleging that the appellant who

was, at the material point of time, posted as an Assistant Electrical

Engineer, Electric Supply Sub-division No.3, Patna in the State of

Bihar, demanded bribe of Rs.500/- for giving electric supply line for

5 H.P. motor for his agricultural work, and he had, under pressure,

given Rs.100/- on 11.06.1985 to the appellant. The Assistant Sub-

Inspector of Police, Mundrika Choudhary (PW5) was directed on 25th

of June, 1985 to verify the information, and according to the verifier,

the informant again paid Rs.100/- as bribe to the appellant. Thereafter

the accused demanded the balance amount on 28.06.1985 in the

morning and thus, the appellant by demanding bribe for giving

electric supply to the complainant, had committed an offence under

section 161 of the IPC and also under section 5(2) of the Act. The

further prosecution case was that on 28th of June, 1985 in the morning

the informant (PW6) met the raiding party near the inspection

bunglow at Sitamarhi where the informant produced Rs.150/- meant

for giving as bribe (Rs.100/- note and another Rs.50/- note) and a

memorandam was thereafter prepared. It was the case of the

prosecution further that PW6 alongwith the watcher PW5 and others

of the raiding party proceeded towards the residence of the appellant

and the raiding party stayed away and the watcher and the informant

went to the residence of the appellant with instruction to give signal

on payment of bribe on demand by the appellant. The informant and

the watcher on reaching the residence of the appellant enquired about

the appellant from his father and were informed that the appellant was

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asleep, whereupon they sat in the outer room, and the father of the

appellant went inside the house and called the appellant. And

thereafter, the appellant came and sat in the room. The money

demanded (Rs.150/-) was paid to the appellant there, who kept the

same in the pocket of the flying shirt and then the watcher, in the

meantime, went out and signaled the raiding party whereupon the

raiding party caught hold of the appellant and recovered the bribed

money in presence of two independent witnesses, namely, Kaushal

Kishore Singh (PW2) and Ram Dayal Singh (PW12), and search and

seizure list (Exhibit 3) was prepared over which the signature of the

appellant (Exhibit 2) was taken.

The defence case of the appellant was inter alia that because of

the filing of a criminal case against the informant on 11.4.1985 the

false case was lodged. It was the case of the appellant that the electric

connection was already given to the informant on 22nd of June, 1985

and therefore there could not have been any occasion for demand and

acceptance of any bribe on 25.6.1985 and 28.6.1985 for supply of

electric connection to the informant. The further defence of the

appellant was that the amount was planted in the flying shirt of the

appellant and the prosecution case regarding the demand and

acceptance of the bribe was wholly false. Accordingly, the appellant

prayed for dismissal of the case.

After the Bihar State Electricity Board accorded sanction for

prosecution of the appellant under section 6(1)(c) of the Act and after

both the parties adduced evidence in respect of their respective cases

the Special Judge (Vigilance), North Bihar, Patna by his judgment

convicted the appellant under section 161 of the IPC and under

section 5(2) of the Act and sentenced him to undergo rigorous

imprisonment for one year each under each Act while the sentences

were directed to run concurrently.

Feeling aggrieved by this judgment of the Special Judge

(Vigilance), North Bihar, Patna, the appellant preferred an appeal to

the High Court of Patna which was also dismissed against which the

present appeal has been preferred in this Court by the accused

appellant.

It is now, therefore, an admitted fact that concurrent findings of

fact for conviction of the appellant under section 161 of the IPC read

with section 5(2) of the Act were arrived at by the High Court as well

as by the Special Judge (Vigilance), North Bihar, Patna. Since this

appeal relates to interference by this Court under Article 136 of the

Constitution against the concurrent findings of fact, it would be

appropriate for us to consider the scope of Article 136 of the

Constitution in such a situation before going to the merits of the

appeal. It is now well settled that power under Article 136 of the

Constitution of this Court is exerciseable even in cases of concurrent

findings of fact and such powers are very wide but in criminal appeals

this Court does not interfere with the concurrent findings of the fact

save in exceptional circumstances. This view was expressed by this

Court way back in the year 1958 in the case of State of Madras Vs.

Vaidyanatha Iyer, AIR 1958 SC 61. In this decision this Court held

that in Article 136 the use of the words "Supreme Court may in its

discretion grant special leave to appeal from any judgment, decree,

determination, sentence or order in any cause or matter passed or

made by any court or tribunal in the territory of India" shows that in

criminal matters distinction can be made between a judgment of

conviction or acquittal. This Court further observed that this Court

will not readily interfere with the findings of fact given by the High

Court and the court of first instance but if the High Court acts

perversely or otherwise improperly, interference may be made. In

that decision, this Court had set aside a judgment of acquittal on facts

as salient features of the case were not properly appreciated or given

due weight to by the High Court and its approach to the question

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whether a sum of Rs.800/- was an illegal gratification or a loan was

such that the High Court had acted perversely or otherwise

improperly. From this decision it is, therefore, clear that this Court in

the exercise of its power under Article 136 is entitled to interfere with

findings of fact if the High Court acts perversely or otherwise

improperly that is to say the judgment of the High Court was liable to

be set aside when certain salient features of the case were not properly

appreciated or given due weight by the High Court. Again in

Himachal Pradesh Administration Vs. Shri Om Prakash, 1972 (1)

SCC, 249, this Court, while considering its power under Article 136

to interfere with the findings of the fact observed as follows:

"in appeals against acquittal by special leave under Article

136, this Court has undoubted power to interfere with the

findings of the fact, no distinction being made between

judgments of acquittal and conviction though in the case of

acquittals it will not be ordinarily interfere with the

appreciation of evidence or on findings of fact unless the

High Court "acts perversely or otherwise improperly"."

Again in Balak Ram Vs. State of UP, 1975 (3) SCC 219 this

Court also held that the powers of the Supreme Court under Article

136 of the Constitution are wide but in criminal appeals this Court

does not interfere with the concurrent findings of the fact save in

exceptional circumstances. In Arunachalam Vs. P.S.R.

Sadhanantham, 1979(2) SCC 297 this Court while agreeing with the

views expressed on the aforesaid mentioned decisions of this Court

has thus stated :

"The power is plenary in the sense that there are no words

in Article 136 itself qualifying that power. But, the very

nature of the power has led the court to set limits to itself

within which to exercise such power. It is now the well

established practice of this Court to permit the invocation

of the power under Article 136 only in very exceptional

circumstances, as when a question of law of general public

importance arises or a decision shocks the conscience of

the court. But within the restrictions imposed by itself,

this Court has the undoubted power to interfere even with

findings of fact, making no distinction between judgments

of acquittal and conviction, if the High Court, in arriving

at those findings, has acted "perversely or otherwise

improperly"."

In Nain Singh Vs. State of UP, 1991(2) SCC 432 in which all

the aforesaid decisions as referred to herein above were considered

and after considering the aforesaid decisions on the question of

exercise of power under Article 136 of the Constitution and after

agreeing with the views expressed in the aforesaid decisions finally

laid down the principle that the evidence adduced by the prosecution

in that decision fell short of the test of reliability and acceptability and

therefore, was highly unsafe to act upon it. In State of U.P. Vs. Babul

Nath (1994) 6 SCC 29 this Court, while considering the scope of

Article 136 as to when this Court is entitled to upset the findings of

fact, observed as follows:

"At the very outset we may mention that in an appeal

under Article 136 of the Constitution this Court does not

normally reappraise the evidence by itself and go into the

question of credibility of the witnesses and the assessment

of the evidence by the High Court is accepted by the

Supreme Court as final unless, of course, the appreciation

of evidence and finding is vitiated by any error of law of

procedure or found contrary to the principles of natural

justice, errors of record and misreading of the evidence, or

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where the conclusions of the High Court are manifestly

perverse and unsupportable from the evidence on record."

From the aforesaid series of decisions of this Court on the

exercise of power of the Supreme Court under Article 136 of the

Constitution following principles emerge :

i) The powers of this Court under Article 136 of the

Constitution are very wide but in criminal appeals this Court

does not interfere with the concurrent findings of the fact

save in exceptional circumstances.

ii) It is open to this Court to interfere with the findings of fact

given by the High Court if the High Court has acted

perversely or otherwise improperly.

iii) It is open to this Court to invoke the power under Article 136

only in very exceptional circumstances as and when a

question of law of general public importance arises or a

decision shocks the conscience of the Court.

iv) When the evidence adduced by the prosecution fell short of

the test of reliability and acceptability and as such it is highly

unsafe to act upon it. And

v) The appreciation of evidence and finding is vitiated by any

error of law of procedure or found contrary to the principles

of natural justice, errors of record and misreading of the

evidence, or where the conclusions of the High Court are

manifestly perverse and unsupportable from the evidence on

record. (underlining is ours)

Keeping the above position of law as enunciated and settled by

the aforesaid series of decisions of this Court, we shall now examine

the evidence adduced by the parties and the materials on record and

see in view of the nature of offence alleged to have been committed

by the appellant whether the concurrent findings of fact call for

interference in the facts and circumstances of the case.

Questioning the propriety of the judgment under appeal Mr.

Sanyal, the learned senior counsel appearing for the appellant had

raised two-fold submissions before us. The first submission was that

the absence of a legal sanction under section 6 of the Act would

vitiate the entire proceeding notwithstanding the fact that the absence

of sanction had not resulted or occasioned in failure of justice. The

second submission was that the findings of fact arrived at by the

Special Judge which were confirmed by the High Court were liable to

be set aside on the ground that such findings of fact were not based on

due and proper consideration of the materials on record and proper

appraisal of evidence, and that there was failure on the part of the

High Court as well as of the Special Judge in coming to a proper

conclusion of fact on the question whether the appellant in fact was

liable to be prosecuted under section 161 of the IPC and section 5 of

the Act.

In view of our judgment that we propose to render on the merits

of the appeal, we do not think it necessary to consider the question of

sanction in this appeal. Let us, therefore, examine whether this Court

in the exercise of its power under Article 136 of the Constitution is

entitled to interfere with the findings of fact arrived at by the High

Court and the Special Judge.

In our view the findings of the courts below were vitiated as

due and proper consideration of the materials on record and also

proper appraisal of evidence was not made by them. As noted

hereinearlier, the appellant was Assistant Electrical Engineer at the

material point of time, In-charge of electric supply. The complainant

Harendra Kumar Singh had applied for electric connection on the

ground that he had purchased a motor of 5 H.P. after taking loan from

Central Bank of India which was filed on 21st February 1983. This

application was placed before the appellant and when the said

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application was filed the appellant demanded Rs.500/- as bribe for

giving electric connection. According to the complainant, although

several persons who also applied like the appellant for supply of

electricity later than the complainant were provided the electricity

connection but the supply of electricity so far as appellant was

concerned, was not allowed only because the appellant had failed to

pay bribe of Rs.500/. Under these circumstances the aforesaid

application was filed before the Chairman of Electricity Board stating

the entire facts and on the basis of which show-cause was issued to

the appellant on 1st April 1985. On being enraged, the appellant

implicated the complainant for electrical theft and started a

proceeding against him. However, on payment of Rs.100/- the matter

was compromised by the appellant with the complainant. The said

amount of Rs.100/- bribe was paid to the appellant on 11th June 1985.

According to the prosecution case, the appellant also promised to

hush up the case filed against him and give electrical connection on

payment of Rs.400/-. However, the complainant was confident of

having his work done on further payment of Rs.300/- only. An

application was filed by the complainant on 25th June 1985 before the

Superintendent of Police (Vigilance Department), Patna, Bihar on the

basis of which a watcher of the department Shri Mundrika Choudhary

was deputed to verify the allegation. A report was submitted by the

watcher ( Ext. 6) dated 26th June 1985 to the Superintendent of Police

(Vigilance ) who by his order dated 26th June 1985 directed the

Deputy S.P. (Vigilance ) to institute a case, take up investigation and

organize a raiding party. The report of the watcher also disclosed,

inter-alia, that the amount of Rs.100/- was accepted by the accused as

bribe and he had also asked the appellant in presence of watcher to

manage Rs.400/- more. According to the prosecution case the

complainant had undertaken to pass the aforesaid sum of Rs.200/- on

28th June 1985 at about 8.00 a.m. A raiding party was organized

consisting of 12 persons including Shri Baidahi Sharan Mishra, a

Magistrate and a Deputy Superintendent of Police and Shri Verma

was heading the raiding party. On 27th June 1985 they proceeded

towards Sitamarhi and reached there at night. At Sitamarhi the

aforesaid raiding party met the complainant Harendra Kumar Singh

in the morning of 28th June 1985 who informed them that they should

be ready with Rs.150/- to be given to the accused as bribe. A

memorandum of G.C. notes was then prepared and complainant

instructed to give the money to the appellant on demand. The raiding

party then went near the house of the appellant at about 7.15 a.m. of

the same day i.e. on 28th June 1985. Mundrika Choudhary and the

complainant went to the residence of the appellant, and the other

members of the raiding party however asked to sit in the outer

verandah of the residence of the appellant. The appellant came there

and demanded rupees 150/- and told him to bring an end to his case.

Accordingly, the complainant paid Rs.150/. The watcher then came

out and gave the signal on which the raiding party reached the spot.

According to the prosecution case, the appellant had kept the bribe

amount of Rs.150/- ( one note of Rs.100/- and the other note of

Rs.50/-) in the upper pocket of the flying shirt. The raiding party

searched the accused in presence of two independent witnesses and

recovered the said amount from the said pocket and prepared seizure

list which was made Ext.15.

After investigation, the charge sheet was submitted against the

appellant. Cognizance of the offence was taken and trial proceeded.

In defence, the appellant pleaded not guilty to the charges

framed against him. He sought to allege in defence that he was

falsely implicated in the case on account of filing a case against the

complainant. His further defence was that no delay in fact occurred in

giving electricity connection to the complainant on account of any

lapse on his part.

The prosecution had examined as many as 13 witnesses in

support of its prosecution case. Besides, oral evidence prosecution

also relied on some documents exhibited in this case. Let us now

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examine whether the evidence adduced from the side of the

prosecution oral and documentary could lead the courts below to

come to a conclusion of fact that the appellant should be prosecuted

for taking bribe under section 161 of the IPC and also under section

5(2) of the Act. So far as this payment is concerned, the courts

below however did not rely on the said evidence of complainant

saying a sum of Rs. 100/- as first instalment was paid by him to the

appellant on 11th June 1985. That being the position, we do not

think it necessary to go into the question whether in fact Rs.100/- as

first instalment was paid to the appellant on 11th June 1985, as stated

by the complainant.

So far as the second instalment of Rs.100/- as bribe on 25th June

1985 is concerned, the courts below relied on the evidence of the

watcher Mundrika Choudhary and held that the said amount was

received by the appellant in favour of the watcher Mundrika

Choudhary. The courts below also relied on the report of the watcher

which was Ext.C and also on the evidence of PWs5 and 6 and

therefore concluded that the appellant had accepted bribe to the extent

of Rs.100/- on 25th June 1985. In our view, this alleged payment of

Rs.100/- as bribe on 25th June 1985 could not be satisfactorily proved

by the prosecution in view of the fact that it is an admitted position

that appellant had filed an application for grant of casual leave for

going to Darbanga to see his married ailing sister. It also appears

from the statement made by the appellant under section 313 of the

Cr.P.C. that the appellant also stated categorically that he was not

present in the office on 25th June 1985. In order to prove that he had

taken casual leave the appellant not only produced the application for

casual leave from the record it also examined Shri Satya Narayan Lal

who deposed on his behalf in this case. In his evidence DW1 had

stated categorically that estimates were given to the companion of the

complainant on 25th June 1985 and was so given by him, also stated

categorically in his evidence that on 25th June 1985 the accused was

on casual leave and had gone to Darbanga for seeing his ailing sister.

However, it is not in dispute that the casual leave application was

marked as Ext.E in this case. The fact of his absence from the office

on 25th June 1985 was not accepted by the courts below on the ground

that the casual leave register was not proved nor the officer granting

leave was examined in this case. Therefore, the courts below

discarded the evidence of DW1 Satya Narayan Lal and also the

application for casual leave Ext.E only on the ground that the

appellant had failed to discharge the onus which lay on the appellant

to prove such fact to show that he was not present in the office on 25th

June 1985. We are unable to agree with the aforesaid findings of the

courts below. In our view, even if casual leave register was not

produced, the application made for casual leave on that particular date

admittedly was produced by the appellant in the case. In order to

prove that the leave application and also to prove that he was not in

the office on 25th June 1985 the appellant had examined one of the

officers of the department, who categorically stated in his deposition

that the appellant had taken casual leave on that date and in fact had

gone to Darbanga for seeing his ailing sister. Therefore, the courts

had gone in error manifestly by drawing an adverse inference against

the appellant for not producing the casual leave register in the case.

Was it not also a duty to call upon the authorities to produce or call

for the casual leave register only to show that the appellant was

physically present in the office on that date? In our view, therefore,

there was no reason for the court to discard the application for grant

of casual leave which was supported by the evidence of DW1 Satya

Narayan Lal to show that the appellant was not present on 25th June

1985 when the instalment of Rs.100/- was paid to the appellant in

presence of the watcher. Therefore, we are of the view that the courts

below acted improperly by discarding the application for grant of

casual leave and also by discarding the evidence of DW1, who is an

officer of the Board and thereby the conclusion of fact arrived at by

the courts below that he was present in the office on 25th June 1985

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and accepted bribe for a sum of Rs.100/- from the complainant cannot

be accepted. Accordingly, the courts below had acted improperly to

come to a conclusion of fact on the aforesaid factual aspect of the

matter which shocks the conscience of this Court and which lead us to

hold that the evidence adduced by the prosecution in this respect fell

short of the test of reliability and acceptability and therefore it was

highly unsafe to act upon it.

Let us now turn to another aspect of the matter. Let us examine

whether the evidence from the prosecution side conclusively proved

payment of Rs.150/- by the complainant to the appellant on 28th of

June, 1985 in presence of two witnesses and the watcher. On this

also, we are of the view that the High Court and the Special Judge

were in error by holding that the prosecution had been able to prove

its case to the hilt. It is true that in the statement made under section

313 of the Cr.P.C. the appellant admitted the presence of the watcher

and the complainant on 28th June, 1985 but his defence was that as

soon as he put on the flying shirt hanging on the peg he was caught

and was forced to sit in the standing car. The defence case was that

taking advantage of the absence of the appellant the money was kept

in the pocket of the flying shirt of the appellant and he was caught as

soon as he came out and put on the flying shirt. It is also true that it

was not disputed by the appellant that on 28th June 1985 Rs.150/- was

recovered from the flying shirt of the appellant. It was also not

disputed that such recovery was made in presence of the complainant

and the watcher. Therefore, the examination by the courts below was

that whether in fact the money was kept by the complainant in

absence of the appellant in the flying shirt. In this connection

prosecution had sought to prove this case by producing PW5 the

watcher and the complainant PW6. It is true that these two witnesses

fully supported the demand and acceptance of the amount by the

appellant but it is an admitted position that (P.W.10) K.K. Verma,

Dy. S.P. who had investigated the case admitted in his evidence that

the watcher had told him that the appellant had come in ganji and

lungi and had put on the bushshirt hanging in the room where he was

sitting. Evidence on the part of K.K.Verma (PW10) was sought to be

explained by the courts below by saying that the fault in recording

statement of the watcher by the I.O. was acceptable. In view of the

aforesaid admission of the watcher that the appellant came with ganji

and lungi, as admitted by PW5 before PW10 it would be difficult for

us not to accept the version of the appellant that the notes were

planted by the complainant in presence of the watcher before the

appellant had entered the room where the complainant and the

watcher were sitting. There is no dispute in this case that

phenolphthalein powder was not used by the vigilance to prosecute

the case on the alleged recovered notes for the purpose of charging the

appellant for bribe. In Som Prakash Vs. State of Delhi (1974) 4

SCC 84 it was observed "It is but meet that science-oriented detection

of crime is made a massive programme of police, for in our

technological age nothing more primitive can be conceived of than

denying the discoveries of the sciences as aids to crime suppression

and nothing cruder can retard forensic efficiency than swearing by

traditional oral evidence only, thereby discouraging liberal use of

scientific research to prove guilt." In Raghbir Singh Vs. State of

Punjab (1976) 1 SCC 145 while discarding the oral and documentary

evidence laid on behalf of the prosecution is not such as to inspire

confidence in the mind of the court, the Supreme Court observed at

paragraph 11 as follows:

"We may take this opportunity of pointing out that it

would be desirable if in cases of this kind where a trap is

laid for a public servant, the marked current notes, which

are used for the purpose of trap, are treated with

phenolphthalein powder so that the handling of such

marked currency notes by the public servant can be

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detected by chemical process and the court does not have

to depend on oral evidence which is something of a

dubious character for the purpose of deciding the fate of

the public servant." (Emphasis is ours)

We must not forget that in a trap case the duty of the officer to

prove the allegations made against a Government officer for taking

bribe is serious, and therefore, the officers functioning in the

Vigilance Department must seriously endeavour to secure really

independent and respectable witnesses so that the evidence in regard

to raid inspires confidence in the mind of the court and the Court is

not left in any doubt whether or not any money was paid to the public

servant by way of bribe. It is also the duty of the officers in the

Vigilance Department to safeguard for the protection of public

servants against whom a trap case may have been laid.

In view of the discussions made and the decisions of the court

above, we are of the opinion that considering the fact that the present

case was also a case of trap of a public servant a duty was cast upon

the authorities to use phenolphthalein powder for the purpose of

proving the charge of bribe of the appellant without relying only on

the oral and documentary evidence adduced from the side of the

prosecution. Therefore, in our view, where admittedly the recovered

notes were not treated with phenolphthalein powder so that the

handing of such marked notes by the appellant could be detected by

chemical process and the court need not here to depend on the oral

evidence which is something of a dubious character to decide the fate

of a public servant. Keeping the aforesaid in our mind, we are of the

view that the defence was much more probable. Defence case was

that the bushshirt hanging in the peg where the complainant came, the

appellant was at that point of time asleep in the next room and father

of the appellant went to wake him up and at that point of time the

notes were thrust into the pocket of the hanging bushshirt, which the

appellant wore when he came to the outer room as he was in his ganji

and lungi. In view of our discussions made hereinabove, we are of

the view that the defence case must be held to be probable.

Accordingly, we must hold that in the light of the discussions made

hereinabove, the evidence led on behalf of the prosecution was not

such as to inspire confidence in the mind of this Court, and therefore,

we are not at all satisfied that the appellant either demanded Rs.150/-

from the complainant or the complainant paid bribe to the appellant

by handing over two marked currency notes to him.

There is yet another aspect of the matter. Admittedly, supply of

electricity was restored or his house was connected with electric

supply. According to the prosecution case, the supply of electricity

was restored in the month of July 1985 whereas the appellant took a

stand that before the complaint was made by him regarding the

allegation of bribe the electric supply was already given to the

complainant. According to the appellant, such connection was given

to the complainant on 22nd June 1985. If this restoration of electric

connection dated 22nd June 1985 to the complainant can be accepted

to be correct then there could have been no occasion for demand and

acceptance of bribe either on 25th June 1985 and 28th June 1985 for

the supply of electric connection. As noted hereinearlier, according

to the prosecution case and also from the materials on record the

electric connection to the complainant was alleged to have been given

on 8th July 1985. As noted hereinearlier, the appellant however took a

stand that the electric connection was made on 22nd June 1985. The

necessary entry regarding electric connection was proved by the

appellant by relying on Ext.F. Ext.G was also relied on by the

appellant which was an intimation by Shri Bachhu Tiwary bearing

endorsement of the appellant to the effect that connection was given

on 22nd June 1985. However, the complainant refused to give any

certificate and thereby the appellant advised Shri Tiwary to get

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certificate from Local Mukhia which is Ext.C in the present case.

Ext.K is an application of Ram Deo Rai to the Executive Engineer

stating that electric connection had been given to the complainant on

22nd June 1985.

In order to prove that the electric connection was given to the

complainant on 22nd June 1985, a report of Shri Bachu Tiwary was

submitted in which it has been categorically stated that the Junior

Engineer had already given the certificate regarding giving electric

connection to the complainant. Ext.G. was produced to show that the

complainant did not give any certificate and therefore the certificate

was taken from the local Mukhia. An adverse inference was drawn

by the courts below for non-production of Shri Tiwary in the witness

box. It is an admitted position that Ext.F was the document which

clearly shows that electric connection was given to the complainant

on 22nd June 1985. It is also not in dispute that the report was

submitted to that effect by Bachu Tiwary, the then Junior Engineer.

Since Bachu Tiwary was not examined the courts below could not

rely on the report of the Bachu Tiwary. However, electric connection

was sought to be proved by producing a certificate from the local

Mukhia to show that electric connection was given on 22nd June 1985.

The materials on record and also from the Ext.I it is clear that the

work order was signed on 11th June 1985. Ext.I is the letter said to

have been written to the complainant by the Electrical Executive

Engineer, Electricity Division, Sitamarhi. Ext.K is also the report of

the Headline Man to show that electric connection was given on 22nd

June 1985 and it was re-connected on 8th July 1985 when the meter

was brought by the complainant from his residence. The accused-

appellant also sought to explain by Ext.L series to show that he was

making all efforts for giving electric connection to the complainant

and so is Ext.M. From all these documents, we are of the view that

electric connection was given to the complainant on 22nd June 1985

and the same was re-connected on 8th July 1985. Therefore, we are

of the view that the courts below were manifestly in error in

discarding the materials produced by the appellant to show that the

electric connection was given on 22nd June 1985 and not on 8th July

1985 whereafter the vigilance enquiry was started against the

appellant.

Even otherwise, the defence of the accused was more probable

and therefore it should be accepted. It was one of the defence of the

appellant that because of starting a criminal case against the

complainant, the trap case was initiated by the vigilance department at

the instance of the complainant. It is not in dispute that a complaint

at the instance of the appellant was made against the complainant and

another for alleged theft of electricity and the complainant was found

guilty which was however set aside in appeal. In the background of

this fact and other circumstances as noted hereinearlier can it not be

said that the defence case was more probable than that of the

prosecution case and that in the facts and circumstances and evidence

on record the defence case must be accepted The aforesaid dramatic

case was initiated by the vigilance department at the instance of the

complainant. On consideration of the entire materials on record and

in view of our discussion made hereinabove, we are therefore of the

view that courts below including the High Court had acted in a

manner which was not warranted and the defence of the accused-

appellant was probable and therefore no conviction could be made

against the accused-appellant.

We are also of the view that it is more probable that in order to

put the appellant into trouble in his service the trap case was initiated

by the vigilance department at the instance of the complaint filed by

the complainant because of the fact that a criminal case was initiated

by the appellant against the complainant for theft of electricity.

Therefore, we must hold that in view of the discussions made

hereinabove the judgments and orders of the court below are liable to

be set aside on the ground that such findings of fact and appreciation

of evidence are vitiated as the evidence adduced by the prosecution

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fell short of the test of reliability and acceptability,and, as such, it was

highly unsafe on the part of the courts below to act upon it. For the

reasons aforesaid, we set aside the judgment of the High Court as well

as of the Special Judge and exonerate the appellant from the charges

found against him.

The appeal is therefore allowed.