{"id":5751,"date":"2017-07-26T22:22:19","date_gmt":"2017-07-26T16:52:19","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=5751"},"modified":"2017-07-26T22:22:19","modified_gmt":"2017-07-26T16:52:19","slug":"14-2016","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/14-2016\/","title":{"rendered":"How to prove contradiction in evidence of witness in criminal case?"},"content":{"rendered":"

IN THE SUPREME COURT OF INDIA<\/strong><\/p>\n

CRIMINAL APPELLATE JURISDICTION
\nCRIMINAL APPEAL NO. 14 OF 2016
\n(Arising out of SLP (Crl.) No.703 of 2015)<\/p>\n

KRISHAN CHANDER
\nVersus
\nSTATE OF DELHI<\/p>\n

Citation;(2016) 3 SCC 108
\nV. GOPALA GOWDA, J.
\nDated;January 6, 2016<\/p>\n

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 \u201ctrial court\u201d) 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 \u201cthe PC Act\u201d) 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.<\/p>\n

3. Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties:-<\/p>\n

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 \u201cIPC\u201d) 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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).<\/p>\n

8. The complainant-Jai Bhagwan took with him two Government Currency notes (for short the \u201cGC notes\u201d) 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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:<\/p>\n

5 AIR 1976 SC 294
\n\u201c41. The fallacy underlying this view stems
\nfrom the assumption that the only purpose of
\ncross-examination of a witness is to
\ndiscredit him; it ignores the hard truth
\nthat another equally important object of
\ncross-examination is to elicit admissions of
\nfacts which would help build the case of the
\ncross-examiner. When a party with the leave
\nof the court, confronts his witness with his
\nprevious inconsistent statement, he does so
\nin the hope that the witness might revert to
\nwhat he had stated previously. If the
\ndeparture from the prior statement is not
\ndeliberate but is due to faulty memory or a
\nlike cause, there is every possibility of
\nthe witness veering round to his former
\nstatement. Thus, showing faultness of the
\nmemory in the case of such a witness would
\nbe another object of cross-examining and
\ncontradicting him by a party calling the
\nwitness. In short, the rule prohibiting a
\nparty to put questions in the manner of
\ncross-examination or in a leading form to
\nhis own witness is relaxed not because the
\nwitness has already forfeited all right to
\ncredit but because from his antipathetic
\naltitude or otherwise, the court feels that
\nfor doing justice, his evidence will be more
\nfully given, the truth more effectively
\nextricated and his credit more adequately
\ntested by questions put in a more pointed,
\npenetrating and searching way.<\/p>\n

51. From the above conspectus, it emerges
\nclear that even in a criminal prosecution
\nwhen a witness is cross-examined and
\ncontradicted with the leave of the court, by
\nthe party calling him, his evidence cannot,
\nas a matter of law, be treated as washed off
\nthe record altogether. It is for the Judge
\nof fact to consider in each case whether as
\na result of such cross-examination and
\ncontradiction, the witness stands thoroughly
\ndiscredited or can still be believed in
\nregard to a part of his testimony. If the
\nJudge finds that in the process, the credit
\nof the witness has not been completely
\nshaken, he may, after reading and
\nconsidering the evidence of the witness, as
\na whole, with due caution and care, accept,
\nin the light of the other evidence on the
\nrecord, that part of his testimony which he
\nfinds to be creditworthy and act upon it. If
\nin a given case, the whole of the testimony
\nof the witness is impugned, and in the
\nprocess, the witness stands squarely and
\ntotally discredited, the Judge should, as a
\nmatter of prudence, discard his evidence in
\ntoto.\u201d<\/p>\n

22. It was further submitted that the trial court by placing reliance upon the Sat Paul\u2019s case (supra) found a part of the complainant-Jai Bhagwan\u2019s 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:<\/p>\n

\u201c16\u2026It is true that complainant has not
\ntestified entirely in terms of his statement
\nrecorded u\/s 161 Cr.P.C and he was declared
\nhostile and was cross examined with the
\nleave of the court. But simply because he
\ndid not testify strictly as per the
\nprosecution case does not mean that his
\nstatement is altogether effaced from the
\nrecord.\u201d<\/p>\n

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.<\/p>\n

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\u2019s 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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 :-<\/p>\n

\u201c\u2026\u2026One Police Officer who was in civil
\nuniform, who was the IO of that case, met
\nme in the Police station told me that I
\nwould have to spend Rs.5000\/- for the bail
\nof my brother\u2026\u2026On the directions of that
\nIO, I had given Rs.4000\/- to accused
\nKrishan on account of duress. That IO asked
\nme that he would send accused Krishan to
\ncollect balance amount of Rs.1000\/- to
\nNajafgarh.\u201d<\/p>\n

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:<\/p>\n

\u201cI did not mention in my complaint that one
\nASI Ranbir Singh asked Constable Krishan
\nKumar to release my brother and he himself
\nwent for some other work and I requested
\nConstable Krishan Kumar to release my
\nbrother and he demanded Rs.5000\/- from me
\nfor releasing my brother (confronted with
\nportion A to A of his complaint Ex. PW2\/A\u2026\u2026
\nIt is incorrect to suggest that accused
\nKrishan Kumar had demanded Rs.5000\/- from
\nme and today I am giving a false exception
\nthat one IO had demanded Rs.5000\/- from me
\nin order to save the accused\u2026\u2026I did not
\ntell to the police that after receiving
\nsignal from the panch witnesses, Raid
\nOfficer came near me and challenged the
\naccused that he had taken Rs.1000\/- as
\nbribe from me on which accused became
\nperplexed and he took out those treated GC
\nnotes from his pocket and threw the same on
\nthe ground (confronted with portion B to B
\nof his statement-ExPW-2\/H recorded).
\nHe has further stated that:
\n\u201cIt is wrong to suggest that accused
\nKrishan had accepted bribe from me in his
\nright hand and kept the same in his pocket
\nand after seeing raiding party. It is
\nfurther wrong to suggest that I am deposing
\nfalsely.\u201d<\/p>\n

The High Court has also erroneously appreciated the same and held thus:<\/p>\n

\u201c23. \u2026As regards the demand of bribe of
\nRs.1000\/- its conscious acceptance by the
\nappellant, as already noticed, has been
\nproved by PW-6 and fully corroborated by PW-
\n12.\u201d<\/p>\n

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 :-<\/p>\n

\u201c\u2026\u2026After getting Sri Kishan medically
\nexamined, the accused brought him to PS
\nNangloi. No surety of Sri Kishan was
\npresent in the PS at that time. After
\nabout one hour one Jai Bhagwan brother of
\nSri Kishan came to P.S. Nangloi and
\npresented the bail bond of his brother Sri
\nKrishan. I accepted the bail bond of Sri
\nKishan at 10.00 pm and gave instruction to
\nthe accused to release Sri Kishan. I
\nreported back at P.S. Nangloi at 11.55 pm
\nand made the entry vide DD NO. 29\/A dated
\n29.7.2004. I also recorded about the arrest
\nand release of Sri Kishan in this very DD,
\nalthough I accepted the surety bond of Sri
\nKishan in this very DD, although I accepted
\nthe surety bond of Sri Kishan at 10.00 PM
\non 29.7.2004.\u201d<\/p>\n

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:<\/p>\n

\u201c12. It is also clearly well settled that the
\nmere fact that a witness is declared hostile
\nby the party calling him and allowed to be
\ncross-examined does not make him an unreliable
\nwitness so as to exclude his evidence from
\nconsideration altogether. In Bhagwan Singh v.
\nState of Haryana Bhagwati, J., speaking for
\nthis Court observed as follows:<\/p>\n

\u201cThe prosecution could have even avoided requesting
\nfor permission to cross-examine the
\nwitness under Section 154 of the Evidence Act.
\nBut the fact that the court gave permission to
\nthe prosecutor to cross-examine his own witness,
\nthus characterising him as, what is described
\nas a hostile witness, does not completely
\nefface his evidence. The evidence remains
\nadmissible in the trial and there is no
\nlegal bar to base a conviction upon his testimony
\nif corroborated by other reliable evidence.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

However, in the instant case, from the material on
\nrecord, it is amply clear that the complainant-Jai
\nBhagwan turned hostile on two important aspects
\nnamely, demand and acceptance of bribe by the
\nappellant which is sine qua non for constituting the
\nalleged offence under Sections 7 and 13(1)(d) read
\nwith 13(2) of the PC Act convicting the appellant and
\nsentencing him for the period and fine as mentioned
\nabove.<\/p>\n

29. As far as the evidence of Panch witness- Anoop Kumar Verma (PW-6) is concerned, in his examinationin-chief, he stated thus:<\/p>\n

\u201c\u2026Thereafter, the complainant and the
\naccused walked for 15-20 steps and had some
\ntalk with the complainant and the
\ncomplainant took out those GC notes from his
\npocket and gave in the right hand of accused
\nwhich he kept in the left pocket of his
\nshirt\u2026\u201d<\/p>\n

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 \u201csome talk\u201d 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.<\/p>\n

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.<\/p>\n

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:<\/p>\n

\u201c16. Section 162 CrPC bars use of statement
\nof witnesses recorded by the police except
\nfor the limited purpose of contradiction of
\nsuch witnesses as indicated there. The
\nstatement made by a witness before the
\npolice under Section 161(1) CrPC can be used
\nonly for the purpose of contradicting such
\nwitness on what he has stated at the trial
\nas laid down in the proviso to Section
\n162(1) CrPC. The statements under Section
\n161 CrPC recorded during the investigation
\nare not substantive pieces of evidence but
\ncan be used primarily for the limited
\npurpose: (i) of contradicting such witness
\nby an accused under Section 145 of the
\nEvidence Act; (ii) the contradiction of such
\nwitness also by the prosecution but with the
\nleave of the Court; and (iii) the reexamination
\nof the witness if necessary.<\/p>\n

17. The court cannot suo motu make use of
\nstatements to police not proved and ask
\nquestions with reference to them which are
\ninconsistent with the testimony of the
\nwitness in the court. The words in Section
\n162 CrPC \u201cif duly proved\u201d clearly show that
\nthe record of the statement of witnesses
\ncannot be admitted in evidence straightaway
\nnor can be looked into but they must be duly
\nproved for the purpose of contradiction by
\neliciting admission from the witness during
\ncross-examination and also during the crossexamination
\nof the investigating officer.<\/p>\n

The statement before the investigating
\nofficer can be used for contradiction but
\nonly after strict compliance with Section
\n145 of the Evidence Act that is by drawing
\nattention to the parts intended for
\ncontradiction.<\/p>\n

18. Section 145 of the Evidence Act reads as under:<\/p>\n

\u2018145. Cross-examination as to
\nprevious statements in writing.\u2014A
\nwitness may be cross-examined as to
\nprevious statements made by him in
\nwriting or reduced into writing, and
\nrelevant to matters in question,
\nwithout such writing being shown to
\nhim, or being proved; but, if it is
\nintended to contradict him by the
\nwriting, his attention must, before
\nthe writing can be proved, be called
\nto those parts of it which are to be
\nused for the purpose of contradicting
\nhim.\u2019<\/p>\n

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.\u201d (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.<\/p>\n

32. Further, the appellant in his examination under Section 313 of Code of Criminal Procedure, 1973 has, inter alia, stated thus:<\/p>\n

\u201cQ 4: it is in evidence against you that on
\n28.07.2004 you demanded Rs. 5000\/- as bribe
\nfrom complainant Jai Bhagwan and you
\naccepted Rs. 4000\/- as bribe from him and
\nasked the complainant to bring Rs. 1000\/- on
\n30.07.2004 near Dichau Kalan bus stand,
\nNajafgarh. What you have to say?<\/p>\n

Ans. It is incorrect.
\nXXX XXX XXX<\/p>\n

Q 14: It is evidence against you that at
\nabout 7:00 p.m. you came and you met with
\ncomplainant and moved towards one water
\nrairi and you demanded and accepted Rs.
\n1000\/- as bribe from the complainant in the
\npresence of panch witness with your right
\nhand and kept the same in left pocket of
\nyour shirt. What you have to say?<\/p>\n

Ans. It is incorrect.<\/p>\n

Q 15: It is in further evidence against you
\nthat in the meantime panch witness gave predetermined
\nsignal and thereafter the members
\nof raiding party came and you were
\napprehended and panch witness told the
\nraiding officer that you had demanded and
\naccepted the bribe of Rs. 1000\/- from the
\ncomplainant (PW-2) with your right hand and
\nkept the same in your left pocket of your
\nshirt. What you have to say?<\/p>\n

Ans. It is incorrect.\u201d<\/p>\n

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.<\/p>\n

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:<\/p>\n

\u201c7. Insofar as the offence under Section 7 is
\nconcerned, it is a settled position in law
\nthat demand of illegal gratification is sine
\nqua non to constitute the said offence and
\nmere recovery of currency notes cannot
\nconstitute the offence under Section 7 unless
\nit is proved beyond all reasonable doubt that
\nthe accused voluntarily accepted the money
\nknowing it to be a bribe. The above position
\nhas been succinctly laid down in several
\njudgments of this Court. By way of
\nillustration reference may be made to the
\ndecision in C.M. Sharma v. State of A.P. and
\nC.M. Girish Babu v. CBI.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under:<\/p>\n

\u201c21. In State of Kerala and another vs. C.P.
\nRao, this Court, reiterating its earlier
\ndictum, vis-\u00e0-vis the same offences, held
\nthat mere recovery by itself, would not prove
\nthe charge against the accused and in absence
\nof any evidence to prove payment of bribe or
\nto show that the accused had voluntarily
\naccepted the money knowing it to be bribe,
\nconviction cannot be sustained.<\/p>\n

22. In a recent enunciation by this Court to
\ndiscern the imperative pre-requisites of
\nSections 7 and 13 of the Act, it has been
\nunderlined in B. Jayaraj in unequivocal
\nterms, that mere possession and recovery of
\ncurrency notes from an accused without proof
\nof demand would not establish an offence
\nunder Sections 7 as well as 13(1)(d)(i)&(ii)
\nof the Act. It has been propounded that in
\nthe absence of any proof of demand for
\nillegal gratification, the use of corrupt or
\nillegal means or abuse of position as a
\npublic servant to obtain any valuable thing
\nor pecuniary advantage cannot be held to be
\nproved. The proof of demand, thus, has been
\nheld to be an indispensable essentiality and
\nof permeating mandate for an offence under
\nSections 7 and 13 of the Act. Qua Section 20
\nof the Act, which permits a presumption as
\nenvisaged therein, it has been held that
\nwhile it is extendable only to an offence
\nunder Section 7 and not to those under
\nSection 13(1)(d) (i)&(ii) of the Act, it is
\ncontingent as well on the proof of acceptance
\nof illegal gratification for doing or
\nforbearing to do any official act. Such proof
\nof acceptance of illegal gratification, it
\nwas emphasized, could follow only if there
\nwas proof of demand. Axiomatically, it was
\nheld that in absence of proof of demand, such
\nlegal presumption under Section 20 of the Act
\nwould also not arise.<\/p>\n

23. The proof of demand of illegal
\ngratification, thus, is the gravamen of the
\noffence under Sections 7 and 13(1) (d)
\n(i)&(ii) of the Act and in absence thereof,
\nunmistakably the charge therefore, would
\nfail. Mere acceptance of any amount allegedly
\nby way of illegal gratification or recovery
\nthereof, dehors the proof of demand, ipso
\nfacto, would thus not be sufficient to bring
\nhome the charge under these two sections of
\nthe Act. As a corollary, failure of the
\nprosecution to prove the demand for illegal
\ngratification would be fatal and mere
\nrecovery of the amount from the person
\naccused of the offence under Sections 7 or 13
\nof the Act would not entail his conviction
\nthereunder.\u201d<\/p>\n

(emphasis supplied)<\/p>\n

35. Further, in the case of Satvir Singh v. State of Delhi, this Court has held thus:<\/p>\n

\u201c34. This Court, in K.S. Panduranga case has
\nheld that the demand and acceptance of the
\namount of illegal gratification by the
\naccused is a condition precedent to
\nconstitute an offence, the relevant
\nparagraph in this regard from the abovesaid
\ndecision is extracted hereunder: (SCC pp.
\n740-41, para 39)
\n\u201c39. Keeping in view that the demand and
\nacceptance of the amount as illegal
\ngratification is a condition precedent
\nfor constituting an offence under the
\nAct, it is to be noted that there is a
\nstatutory presumption under Section 20 of
\nthe Act which can be dislodged by the
\naccused by bringing on record some
\nevidence, either direct or
\ncircumstantial, that money was accepted
\nother than for the motive or the reward
\nas stipulated under Section 7 of the Act.
\nWhen some explanation is offered, the
\ncourt is obliged to consider the
\nexplanation under Section 20 of the Act
\nand the consideration of the explanation
\nhas to be on the touchstone of
\npreponderance of probability. It is not
\nto be proven beyond all reasonable doubt.
\nIn the case at hand, we are disposed to
\nthink that the explanation offered by the
\naccused does not deserve any acceptance
\nand, accordingly, we find that the
\nfinding recorded on that score by the
\nlearned trial Judge and the stamp of
\napproval given to the same by the High
\nCourt cannot be faulted.\u201d
\n(emphasis supplied)
\n35. The learned Senior Counsel for the
\nappellant has also placed reliance upon the
\ncase of Banarsi Dass referred to supra
\nwherein it was held that: (SCC pp. 456-57,
\npara 24)Page 32
\n32
\n\u201c24. In M.K. Harshan v. State of Kerala
\nthis Court in somewhat similar
\ncircumstances, where the tainted money
\nwas kept in the drawer of the accused
\nwho denied the same and said that it
\nwas put in the drawer without his
\nknowledge, held as under: (SCC pp. 723-
\n24, para 8)
\n\u20188. \u2026 It is in this context the
\ncourts have cautioned that as a
\nrule of prudence, some
\ncorroboration is necessary. In all
\nsuch type of cases of bribery, two
\naspects are important. Firstly,
\nthere must be a demand and
\nsecondly, there must be acceptance
\nin the sense that the accused has
\nobtained the illegal gratification.
\nMere demand by itself is not
\nsufficient to establish the
\noffence. Therefore, the other
\naspect, namely, acceptance is very
\nimportant and when the accused has
\ncome forward with a plea that the
\ncurrency notes were put in the
\ndrawer without his knowledge, then
\nthere must be clinching evidence to
\nshow that it was with the tacit
\napproval of the accused that the
\nmoney had been put in the drawer as
\nan illegal gratification.\u2019\u2026\u201d<\/p>\n

(emphasis supplied)
\n36. 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.<\/p>\n

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.<\/p>\n

[T.S. THAKUR]
\n[V. GOPALA GOWDA]
\nNew Delhi,
\nJanuary 6, 2016<\/p>\n","protected":false},"excerpt":{"rendered":"

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…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[44149,1060,53192,13301,13300,14886,28218,53191],"class_list":["post-5751","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-contradiction-in-evidence","tag-criminal-case","tag-krishan-chander","tag-prevention-of-corruption-act","tag-section-132","tag-t-s-thakur","tag-v-gopala-gowda","tag-witness-in-criminal-case"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/5751","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=5751"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/5751\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=5751"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=5751"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=5751"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}