How to prove contradiction in evidence of witness in criminal case?

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
Versus
STATE OF DELHI

Citation;(2016) 3 SCC 108
V. GOPALA GOWDA, J.
Dated;January 6, 2016

2. 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.

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

4. 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.

5. 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.

6. 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.

7. 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).

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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 Pradesh1, A. Subair v. State of Kerala2 and State of Kerala & Anr. v. C.P. Rao3, 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.

16. 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.

17. It was further contended by the learned senior counsel that the High Court has failed to reappreciate the evidence on record that Panch witnessAnoop 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.

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18. 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.

19. 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.

20. 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.

21. 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 complainantJai Bhagwan relied upon the decision of this Court in the case of Sat Paul v. Delhi Administration5, paragraphs 41 and 51 of which decision in recording the finding on the charges against the appellant, are extracted hereunder:

5 AIR 1976 SC 294
“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.

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.”

22. 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.

23. 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 complainantJai Bhagwan (PW-2) in his examination-in-chief.

24. 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.

25. 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.

26. 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 crossexamined 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.”

27. 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 :-

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“……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 complainantJai Bhagwan as he was already released on bail in the above criminal case by Ranbir Singh, ASI, (PW-11). 28. 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 Orissa6. 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.

29. As far as the evidence of Panch witness- Anoop Kumar Verma (PW-6) is concerned, in his examinationin-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 complainantJai 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.

30. 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.

31. 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 Uttarakhand7. 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 reexamination
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 crossexamination
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 crossexamination. 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 crossexamination 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.

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32. 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 predetermined
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.”

33. 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.

34. 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)

35. Further, in the case of Satvir Singh v. State of Delhi, 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)Page 32
32
“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)
36. 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.

37. 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.

[T.S. THAKUR]
[V. GOPALA GOWDA]
New Delhi,
January 6, 2016

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