IN THE HIGH COURT OF JUDICATURE AT PATNA
G.APP. (SJ) No. 41 of 1989
Against the judgment of acquittal dated 29th June, 1989, passed by
Shri N.C. Lala, Special Judge (Vigilance), Patna in Spl. Case No.
32/86.
---------------
The State of Bihar ………………………… APPELLANT
VS.
Dr. Jwala Prasad Pandey, son of Late Sadhu Saran Pandey,
Village- Imadpur Karani P.S. Bikramganj, District-Rohtas, at
present- Assistant Key Village Officer, Veterinary Hospital,
Lakhisarai Block, District-Munger – Accused… RESPONDENT
—————
For the appellant:- M/S. Rakesh Kumar, I/C Spl. PP,
Vigilance & Prabhu Narayan Sharma, JC
to I/C Spl. P.P./Vigilance.
For the Respondent: M/S Devendra Prasad Sinha, Sr. Advocate
and Sri Satyendra Kumar Sinha,Advocate
—————
PRESENT
THE HON’BLE MR. JUSTICE RAMESH KUMAR DATTA
R.K.Datta, J. This Criminal Appeal against acquittal has been filed
by the State of Bihar against the judgment dated 29th June, 1989
passed in Special Case No. 32 of 1986 arising out of Vigilance
P.S. Case No. 11/1986 by the Special Judge, Vigilance, Patna by
which he has held the accused not guilty of the charges under
Section 161 of the Indian Penal Code and Section 5(2) read with
2
Section 5(1) (d) of the Prevention of Corruption Act, 1947 and
accordingly, acquitted the accused.
2. The prosecution case is that on 19.3.1986, PW 9,
Rabindra Kumar Singh, submitted a written complaint stating that
his brother’s name is in the Below Poverty Line List of the Block
Office, Lakhisarai. It was alleged that the accused, Dr. Jwala
Prasad Pandey, Block Animal Husbandry Officer said that until he
gives Rs. 400/- as bribe, his application will not be sent to the
Bank. It is further alleged that he stated that, in that money, there
was share of three persons, namely, himself, the Block
Development Officer and the Nazir. Since the complainant did not
want to give the bribe he made the complaint.
3. P.W.4, Jahir Ahmad, the Inspector of Vigilance
was deputed to verify the complaint and in his report dated
24.3.1986 he stated that he went to Lakhisarai on 21.3.1986, met
the complainant and from there they went to the Block Office and
thereafter to his residence which was nearby. He learnt that he had
gone out; since the accused did not return till evening, therefore,
on 22.3.1986 in the morning at 8.00 A.M. he along with the
complainant went and sat in Sheo Bharti Hotel and the
complainant’s brother Shri Ram Sagar Singh went to call the
accused who came with him after some time. Then he repeated his
3
demand and on entreating for decreasing the amount by the
complainant, he stated that he has to give Rs. 200/- out of the
bribe amount to the Block Development Officer and Rs. 50/- to
the Nazir and therefore, there was no question of decreasing the
same. On his demand to pay something immediately, the
complainant gave him two notes of Rs. 50/- each promising to
arrange the rest and pay to him. Thereafter the FIR was registered
and a memorandum of 3 G.C. notes of Rs. 100/- given by the
complainant was prepared and the notes were returned to him to
be given to the accused on his demanding the bribe. On 2.4.1986
the raiding party was constituted under the leadership of
Brijendra Kumar, Deputy Superintendent of Police, PW 6 who
was also made Investigating Officer of the case and on 2.4.1986
the raiding party went from Patna to Lakhisarai. After waiting for
some time when the accused entered his chamber at 3.30 P.M. the
complainant, PW 9 went to his chamber and allegedly on his
demand handed him over the said 3 G.C. notes of Rs. 100/- which
the accused took and kept under a Register on the second rack of
his whatnot on the right side of his chair. On signal from the
verifier, the other members of the raiding party came into the
chamber and in the presence of two independent witnesses the
search was made on the accused upon which nothing was
4
recovered from him but subsequently, on further search, the 3
G.C. notes of Rs. 100/- were recovered from under the Register on
the second rack of the whatnot. After the investigation the
Vigilance police submitted charge sheet against the respondent
and he was put on trial.
4. The defence of the accused during the trial was
that no application was pending with him with respect to the
brother of the complainant nor he ever demanded or accepted any
amount from the complainant and the case was one of plantation
at the behest of one Ramdeo Singh, contractor, who was against
the Block Development Officer and since the accused used to take
the side of the Block Development Officer, hence the complainant
under the influence of said Ramdeo Singh, contractor, falsely
implicated him.
5. In the course of trial, the prosecution examined 9
witnesses among whom, PW 1, Maheshwar Prasad Mishra is the
Special Magistrate, Vigilance who had accompanied the raiding
party and on the recovery of the G.C. notes had signed over them.
P.W.5 Sarjug Prasad and P.W.8 Shekhar are the two seizure list
witnesses among whom PW-8 has been declared hostile. P.W.9 is
the complainant, Rabindra Kumar Singh, P.W.4, Inspector,
Vigilance, Jahir Ahmad who had given the verification report and
5
also accompanied the complainant to the chamber of the accused
at the time of the giving of the bribe. P.W.6 Brijendra Kumar,
Deputy Superintendent of Police, Vigilance was the leader of the
raiding party as well as the Investigating Officer of the case. PW-
2 Ram Nath Prasad and P.W.-7 Lal Bahadur Singh are both
formal witnesses who had proved respectively the sanction order
and the case diary, while P.W.-3 Sarda Nand Singh, Inspector,
Vigilance has been tendered for cross-examination.
6. In the course of trial the prosecution exhibited the
complaint dated 19.3.1986 as Ext-8; Ext. 3 is the verification
report dated 24.3.1986, Ext. 5 is the formal FIR; Ext. 4 is the
memorandum of G.C. notes, Ext. 6 is the seizure list and Ext. 2 is
the sanction order for prosecution.
7. The defence has also examined two witnesses,
namely, Ram Sagar Singh, the cousin of the complainant as
D.W.1 and Ghanshyam Prasad Singh, Branch Manager, Kshetriya
Gramin Bank, Lakhisarai as DW- 2. It has also exhibited the BPL
list as Ext.A, a duplicate loan application dated 11.10.1985 of Jai
Prakash Singh, brother of the complainant as Ext.B and the list of
applications sent by the Block Office to the Kshetriya Gramin
Bank through letter no. 77 dated 28.1.1986 as Ext.C. The pre-
inspection report, with respect to application of Jai Prakash Singh,
6
of the Field Supervisor is Ext. D. Annexure-A document as sent
by the Bank is Ext. E. Annexure-B document relating to subsidy
by DRDA is Ext.F; the loan documents of Jai Prakash Singh is
Ext. G/2 and the purchase schedule dated 31.3.1986 with respect
to loan granted to Jai Prakash Singh is Ext. H.
8. On a consideration of the entire materials on the
record the learned Special Judge, Vigilance came to the
conclusion that the application of Jai Prakash Singh, brother of the
complainant, was forwarded before the filing of the complaint and
Ram Sagar Singh, cousin of the complainant, received his loan in
1983 and therefore no question arises for the complainant to
approach the accused and give bribe either in official capacity or
otherwise. He also held that the prosecution evidence does not
inspire confidence that the accused actually made any demand of
bribe or accepted Rs. 100/- on 22.3.1986. He further held that the
prosecution has been able to prove that Rs. 300/- was recovered
from under a Guard file which was kept by the side of the chair of
the accused but he further came to the conclusion that in the
absence of the use of phenolphthalein power on the G.C. notes, it
cannot be said that the accused had actually handled the said G.C.
notes and as such in the recovery of the notes from below the
guard file kept on the rack in the chamber of the accused, the
7
possibility of plantation cannot be ruled out and therefore held that
the prosecution has not been able to prove by reliable evidence
that actually the accused demanded and received Rs. 300/- as
bribe from the complainant on 2.4.1986. For all the aforesaid
reasons, he held the accused not guilty of the charges and
acquitted him.
9. Learned Special Public Prosecutor for the
Vigilance submits that in view of the evidence of the complainant,
P.W. 9 and the verifier, P.W.4, it is clear that a demand was made
by the respondent which was duly verified and thereafter the bribe
of Rs. 300/- was taken and recovery of said Rs. 300/- was made
on search. It is submitted that the same are the only requisites for
coming to a conclusion that an accused had committed the offence
under Section 161 IPC (as it then was) and Section 5(2) read with
Section 5(1)(d) of the Prevention of Corruption Act, 1947. It is
urged by learned counsel that both the P.Ws. have categorically
averred the said facts and, as a matter of fact, on the evidence of
P.W.4, the Inspector, Jahir Ahmad, alone the prosecution was able
to prove the case and the court below ought to have so held. In
this regard, he relies upon a decision of the Supreme Court in the
case of Gian Singh Vs. State of Punjab: AIR 1974 SC 1024, in
relevant part of para-5 of which it has been held as follows:
8
“5. – …….. …………… …………
We see no reason to disbelieve the
evidence of these two constables, and if
their testimony is true, the defence
version has been disproved. Counsel for
the appellant commented on the non-
examination of Buta Singh and his
mother, Dhan Kaur, and feebly
suggested that the evidence of the
prosecution witnesses was discrepant.
He also pleaded that police witnesses in
trap cases are suspect, that person who
have been prosecution witnesses more
than once are stock witnesses, and that a
plausible explanation had been put
forward by the accused, the cumulative
effect of these factors being that the
accused is entitled to acquittal. In a
recent case to which one of us was party
(Som Prakash V. State of Delhi, Cri
Appeal No. 143 of 1970, D/- 25.1.1974
= (reported in AIR 1974 SC 989) this
Court has held that police officials
cannot be discredited in a trap case
merely because they are police officials,
nor can other witnesses be rejected
because on some other occasion they
have been witnesses for the prosecution
in the past. Basically, the Court has to
view the evidence in the light of the
probabilities and the intrinsic credibility
of those who testify. The serious hurdle
in the way of the appellant here is that
the court which has seen the witnesses,
and the appellate Court which has
reviewed the matter over again, have
found no good reason to discard the
prosecution version. We are, therefore,
satisfied that the appellant has failed in
his endeavour to prove that the charge
leveled against him has not been
9satisfactorily made out. We dismiss the
appeal, and if the accused is on bail, he
will surrender in consequence. “10. Learned counsel also submits that earlier also
before the PW 4 the accused had accepted two notes of rupees
fifty from the complainant PW 9 and thus the case of the
prosecution is doubly fortified.
11. Learned counsel also contends that the question
of motive is irrelevant when the prosecution succeeds in
establishing the demand and acceptance and the same would be
sufficient to convict the accused and for the said reason alone the
impugned judgment is liable to be set aside.
12. Learned counsel also relies upon Section 4 of the
Prevention of Corruption Act, 1947 to argue that once the
prosecution has proved the case of demand and acceptance, the
onus was clearly upon the accused to prove that the amount
received was not illegal gratification but neither the accused led
any evidence on the point nor he took any plea as to why he had
received the said amounts. In support of the same learned counsel
relies upon a decision of the Supreme Court in the case of
Chaturdas Bhagwandas Patel Vs. The state of Gujarat: AIR 1976
SC 1497, paras 22 and 23 of which are quoted below:-
10“22.- Indeed, when a public servant,
being a police officer, is charged under
Section 161, Penal Code and it is alleged
that the illegal gratification was taken by
him for doing or procuring an official
act, the question whether there was any
offence against the giver of the
gratification which the accused could
have investigated or not, is not material
for that purpose. If he has used his
official position to extract illegal
gratification, the requirement of the law
is satisfied. It is not necessary in such a
case for the Court to consider whether or
not the public servant was capable of
doing or intended to do any official act
of favour or disfavour (see Bhanuprasad
Hariprasad V. State of Gujarat (1969) 1
SCR 22 = (AIR 1968 SC 1323) and Shiv
Raj Singh V. Delhi Administration,
(1969) 1 SCR 183 = (AIR 1968 SC
1419).23.- In the light of what has been said
above, it is clear that the appellant has
failed to rebut the presumption arising
against him under Section 4(1) of the
Prevention of Corruption Act. It is true
that the burden which rests on an
accused to displace this presumption is
not as onerous as that cast on the
prosecution to prove its case.
Nevertheless, this burden on the accused
is to be discharged by bringing on record
evidence, circumstantial or direct, which
establishes with reasonable probability,
that the money was accepted by the
accused, other than as a motive or
reward such as is referred to in Section161. The appellant had hopelessly failed
to show such a balance of probability in
his favour.”11
He further relies upon a decision of the Apex Court
in the case of Trilok Chand Jain Vs. Vs. State of Delhi: AIR 1977
SC 666, in para-8 of which it has been held as follows:
“8.- Section 4 (1) of the Prevention of
Corruption Act reads:“Where in any trial of an offence
punishable under Section 161 or Section
165 of the Indian Penal Code ( or of an
offence referred to in clause (a) or clause(b) of sub-section (1) of Section 5 of this
Act punishable under sub-section (2)
thereof,) it is proved that an accused
person has accepted or obtained, or has
agreed to accept or attempt to obtain, for
himself or for any other person, any
gratification (other than legal
remuneration) or any valuable thing
from any person, it shall be presumed
unless the contrary is proved that he
accepted or obtained, or agreed to accept
or attempted to obtain, that gratification
or that valuable thing, as the case may
be, as a motive or reward such as is
mentioned in the said Section 161, or, as
the case may be, without consideration
or for a consideration which he knows to
be inadequate.”From a reading of the above provision it
is clear that its operation, in terms, is
confined to a trial of an offence
punishable under Section 161 or Section
165, Penal Code or under clause (a) or(b) of Section 5(1) read with sub-section
(2) of that section of the Act. If at such a
trial, the prosecution proves that the
accused has accepted or obtained
gratification other than legal
remuneration, the court has to presume
12the existence of the further fact in
support of the prosecution case, viz., that
the gratification was accepted or
obtained by the accused as a motive or
reward such as mentioned in Section
161, Penal Code. The presumption
however, is not absolute. It is rebuttable.
The accused can prove the contrary. The
quantum and the nature of proof
required to displace this presumption
may vary according to the circumstances
of each case. Such proof may partake the
shape of defence evidence led by the
accused, or it may consist of
circumstances appearing in the
prosecution evidence itself, as a result of
cross-examination or otherwise. But the
degree and the character of the burden of
proof which Section 4(1) casts on an
accused person to rebut the presumption
raised thereunder, cannot be equated
with the degree and character of proof
which under Section 101, Evidence Act
rests on the prosecution. While the mere
plausibility of an explanation given by
the accused in his examination under
Section 342, Cr.P.C. may not be enough,
the burden on him to negate the
presumption may stand discharged, if
the effect of the material brought on the
record, in its totality, renders the
existence of the fact presumed,
improbable. In other words, the accused
may rebut the presumption by showing a
mere preponderance of probability in his
favour; it is not necessary for him to
establish his case beyond a reasonable
doubt- see Mahesh Prasad Gupta V.
State of Rajasthan, AIR 1974 SC 773.”13
13. For the aforesaid reasons the learned Special P.P.
submits that the judgment of the trial court ought to be set aside
and the accused held guilty of the charges against him.
14. Learned counsel for the respondent, on the other
hand, submits that the prosecution has hopelessly failed in proving
the case against the respondent. It is contended that in the first
place the prosecution was not even certain as to for whose loan
application the respondent had allegedly demanded the bribe; the
case of the prosecution from the very beginning as also in the
examination in chief of P.W.9, the complainant was that the loan
application was made for the loan of Ram Sagar Singh for
purchase of cattle which was sent to the respondent for
verification but subsequently in his cross-examination he changed
the version stating that the loan application was with respect to
both his brothers, Jai Prakash Singh and Ram Sagar Singh and that
Ram Sagar Singh had sought loan for a shop and Jai Prakash
Singh has also applied for loan for shop. It is further submitted
that similarly the IO, PW 6 had initially stated in his cross-
examination that the loan application was of Ram Sagar Singh but
subsequently, he changed his version stating that it was for Jai
Prakash Singh. It is thus urged by learned counsel that it is a
serious infirmity as to the very genesis and purpose of the
14
application for loan and the person for whom it was sought.
Thereafter, it is submitted by him that Ram Sagar Singh has
himself deposed as DW 1 and stated that he had applied and got
the loan for Shop in the year 1983 itself; and further that even with
respect to Jai Prakash Singh, it has clearly come out in the
evidence that his loan application was sent from the Block Office
to Kshetriya Gramin Bank as early as on 28.1.1986 and thereafter
no further action was required by the Block Office. This fact was
known to the applicant and the complainant as well and thus on
the date of complaint or verification, no application was pending
in the Block Office to the knowledge of the complainant and his
brothers. That being the situation, there was no occasion for the
respondent to demand from the complainant any bribe for the
purpose of forwarding the application from the Block Office to the
Bank, which is the earliest stand taken in the complaint filed by
him on 19.3.1986.
15. Learned counsel also submits that the
complainant himself was not personally an applicant for the loan
and only one of his brothers was stated to be the applicant, and
even with respect to them he has failed to take an unequivocal
stand as to which brother’s case was to be forwarded and for
what type of loan. It is urged that originally the stand was that the
15
loan application was for cattle, for which loan, for the purpose of
verification, the respondent would come into the picture as the
Block Animal Husbandry Officer. Ultimately since the stand was
changed and the application was stated to be for the purpose of
shop, there would be no occasion at all for the respondent to be
involved in the process of grant of loan for the shop, he being the
Animal Husbandry Officer only of the Block. It is thus submitted
by learned counsel that the respondent would have absolutely no
motive to make any demand of bribe as he had no authority to
make any recommendation for the purpose of grant of loan for a
shop.
16. Learned counsel also relies upon the fact that at
the time when the search was made the eye witnesses, P.Ws. 4 and
5 did not tell the IO that the money taken by the accused was kept
under the file of the Whatnot rather it has come in evidence that
on finding nothing on the person of the accused, further search
was made and the money was recovered from under the guard file
lying on the rack of the Whatnot. This, according to learned
counsel, further disproves the prosecution story of the accused
having received the bribe and kept the same under the guard file
and clearly shows that the present one is a case of plantation
considering the fact that it has come in the evidence that the
16
respondent used to leave his chamber for work, the same was not
locked and further there was a window also in the chamber, 2 ½
feet away from the Whatnot.
17. Learned counsel further relies upon the fact that
admittedly no phenolphthalein power was used on the G.C. notes
and thus it cannot be conclusively proved that the accused had
ever handled the said 3 G.C. notes. Considering the over all fact
situation of the motive for demand of bribe, not having been
established and both the eye witnesses being interested witnesses,
it is urged by learned counsel that it would not be safe to rely the
conclusion that the accused had demanded and accepted the bribe
in the absence of use of the phenolphthalein power on the G.C.
notes.
18. In support of the aforesaid submission learned
counsel for the respondent relies upon a decision of the Supreme
Court in the case of Raghbir Singh Vs. State of Punjab: AIR
1976 SC 91, in the relevant parts of paragraphs 8 and 9 and in
para-11 of which it has been observed as follows:-
“8.- The prosecution case also suffers
from another serious infirmity and it is
that it rests entirely on the evidence of
witnesses who are either interested
witnesses or police witnesses
……….. ………………. ………
17
9.-………. …… ………
The evidence in regard to the search of
the person of the appellant and the
seizure of five marked currency notes
from him is, in the contest of the other
facts and circumstances of the case, not
such as to inspire confidence and cannot
be implicitly accepted.
11.- It is clear from the aforesaid
discussion that the evidence led on
behalf of the prosecution is not such as
to inspire confidence in the mind of the
court and we must say that we are not at
all satisfied that the appellant either
demanded bribe of Rs. 50/- from Jagdish
Rai or that Jagdish Rai paid bribe of Rs.
50/- to the appellant by handing over
five marked currency notes to him or
that five marked currency notes of Rs.
10/- each were recovered from the
pocket of the appellant when his person
was searched by the raiding party. 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 currency 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 detected by chemical process and the
court does not have to depend on oral
evidence which is sometimes of a
dubious character for the purpose of
deciding the fate of the public servant. 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
18cruder can retard forensic efficiency
than swearing by traditional oral
evidence only, thereby discouraging
liberal use of scientific research to prove
guilt. Vide Som Prakash Vs. State of
Delhi, (1974) 3 SCR 200 = (AIR 1974
SC 989 = 1974 Cri L.J. 784).”
19. I have considered the submissions of learned
counsels for the parties and the materials on the record. It is
evident from the complaint (Ext.8) filed by PW-9 on 19.3.1986
that he speaks of an application on behalf of his brother, and not
brothers, who was in the BPL list. The name of the brother is not
mentioned but subsequently when PW 4 went for verification on
22.3.1986, it is the complainant’s cousin, Ram Sagar Singh who
had accompanied the complainant and called the respondent.
Again in the report dated 7.4.1986 submitted by PW-6, it is clearly
mentioned that the demand of bribe was made with respect to loan
application of Ram Sagar Singh. In the examination-in-chief of
PW-9 also it was stated that the loan application was of Ram
Sagar Singh. Only subsequently in the course of cross-
examination the name of Jai Prakash Singh has cropped up as the
brother whose application was pending in the Block Office. Again
the clear stand in the examination-in-chief of the complainant was
that the loan was for the purpose of cattle which was to be
19
accordingly verified by the respondent being the Block Animal
Husbandry Officer and for the said purpose he had approached the
respondent who thereafter made the demand of bribe. The
examination-in-chief of the PW-9 took place on 16.1.1989.
Subsequently, in the course of his cross-examination on 30.1.1989
he changed the version and started speaking about the loan
application of both Jai Prakash Singh and Ram Sagar Singh and
further changed the version that both of them had applied for loan
for Shop and not for cattle. The said changing version of the
complainant has been correctly noted and referred to by the
learned trial court in its judgment. In any case, once the
subsequent version is put forward that the loan was for the
purpose of grocery shop then there would be no occasion for the
respondent to be involved in recommending the said loan. The
statements made by the PWs. like the complainant to the contrary
has to be treated as false and worthless in the absence of any
document brought on the record to show that even in the case of
application for loan for shop of grocery the recommendation is
required by the Animal Husbandry Officer as on the face of it the
same appears to be highly improbable.
20. Similarly, the statement of the Investigating
Officer, PW-6 who was also the leader of the raiding party does
20
not inspire any confidence. Firstly, he says that the application
was of Ram Sagar Singh, but subsequently he changes his version
and says that it was loan application of Jai Prakash Singh.
21. The evidence of DW-1 Ram Sagar Singh, the
cousin of the complainant totally demolishes the case of the
prosecution that any application for loan with respect to him was
pending in the Block Office as he has clearly stated that he had
applied and received the loan under the BPL scheme in the year
1983 itself. Nothing has been brought on the record by the
prosecution to show that the said statement of DW 1 was false nor
any document has been brought on the record by the prosecution
to show that any application of Ram Sagar Singh was pending in
the Block Office in the year 1986 in support of their stand.
22. Even if it is accepted that the application in
question was of Jai Prakash Singh and not Ram Sagar Singh in
that event also while no document has been brought on the
record by the prosecution in support of the said stand, on the other
hand, a large number of documents have been produced by the
defence which go to show that on the basis of the procedure as
stated by the said Bank Manager, and it has also been admitted by
the IO, PW-6, the said application of Jai Prakash Singh was for
purchase of articles for shop and had been sent by the Block
21
Office as early as on 28.1.1986 itself, which letter in fact was sent
on behalf of the Block Development Officer by the respondent
himself. Thereafter on no defect being found in the application, it
was not required to be and never returned to the Block Office
rather the further verification of the same was made by the Field
Officer of the Bank who after interviewing the said Jai Prakash
Singh on 28.2.1986 recommended the case for loan. Thereafter,
the Bank forwarded the application for grant of subsidy to the
DRDA which granted him subsidy on 6.3.1986, after which the
loan agreement was executed by Jai Prakash Singh on 31.3.1986
and cheque was also issued by the Bank on the same date and
articles were also purchased on the said date and handed over to
him. It is thus unimpeachably clear from the said evidence brought
on the record that even on the date when the complaint was filed
on 19.3.1986, the matter of Jai Prakash Singh was not pending in
the Block Office rather it had already been forwarded to the Bank
and the Bank had already recommended much prior to that date to
the knowledge of said Jai Prakash Singh and the DRDA much
before had already granted subsidy to Jai Prakash Singh. Further,
even before the raid was organized, Jai Prakash Singh had
received the articles for the shop and nothing remained to be done.
In the said circumstances, the entire case of the respondent
22
demanding money for forwarding the application of Jai Prakash
Singh clearly appears to be false and cooked up one. The learned
trial court in this regard has rightly come to the conclusion that t at
the relevant time there was no occasion for the complainant to
approach the accused for forwarding the application of the brother
of the complainant and there was no motive for the accused either
in discharge of his official duty or otherwise to demand or accept
any bribe, as alleged. The court below has rightly concluded that
the said circumstance weakens the foundation of the prosecution
story and introduces the element of infirmity in it.
23. The submission of learned Spl. P.P., Vigilance
that the motive would not be relevant in view of the clear evidence
of demand and acceptance of bribe, can have no force in the facts
and circumstances of the case. The clear story of the complainant
from the very beginning was that the bribe was demanded by the
respondent for forwarding the application of his brother and if the
very basis of the complaint disappears then holding the respondent
guilty of having demanded and accepted the bribe merely on the
evidence of the complainant and the verifier would be unjustified.
The absence of any substance in the complaint throws serious
doubt on the entire case of the prosecution and the same could
thereafter be accepted only on the basis of unimpeachable
23
evidence of demand and acceptance of bribe which is not the case
herein. There are only two eye witnesses, the complainant PW-9
and the verifier, PW-4. It has been clearly held by the Apex Court
in Raghbir Singh’s case (supra) that if the prosecution case rests
solely on the evidence of witnesses who are either interested or
police witnesses then it ought to be held to be suffering from
serious infirmity. So far as the seizure witnesses are concerned,
apart from the fact that PW-8 has turned hostile, even assuming
that the other seizure list witness P.W.5 is independent and
reliable, then he has only witnessed the recovery of Rs. 300/- from
under a guard file from a rack of the Whatnot and there is no
recovery from the person of the respondent. Hence, at best, it is a
case of recovery of Rs. 300/- from the office room of the
respondent. In view of the evidence that the door of the office of
the respondent used to remain open when he went out of the office
room, as also the existence of a window not very far from the
Whatnot, in such circumstances, the defence version that it is a
case of plantation, cannot be easily brushed aside particularly
keeping into consideration the complete failure of the prosecution
to support the factum of the demand of bribe.
24. The failure of the Vigilance Department to apply
phenolphthalein power to the G.C. notes also makes it difficult for
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this Court to accept the prosecution version that the respondent
had personally accepted the notes and handled them before
keeping them under the guard file.
25. Thus on a consideration of the entire facts and
circumstances and the evidence of the witnesses, it is difficult for
this Court to reach a different conclusion than that recorded by the
learned Special Judge in his judgment. Moreover, it is an appeal
against acquittal. Once the court below, on a detailed examination
of the evidence on the record, has come to the conclusion that the
prosecution has failed to establish either on the point of motive or
demand and acceptance of bribe, this Court would not come to a
different conclusion unless the appellants could have satisfied this
Court on cogent material that the findings recorded by the trial
court are contrary to the weight of the evidence on record and
perverse. In an appeal against acquittal the presumption of
innocence of the accused is certainly not weakened and the burden
upon the prosecution becomes much more onerous. In such a case
the conviction cannot be recorded merely because this Court is of
the view that another conclusion is possible on the basis of
evidence. If the view taken by the trial court is reasonable then the
judgment of acquittal ought not to be set aside. In the present
matter, not only the appellant has failed to show that the case
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against the respondent is proved beyond all reasonable doubt on
the evidence on the record, it has hopelessly failed to show that
any view could reasonably be taken in the matter contrary to what
has been held by the court below.
26. Thus on a consideration of the entire facts and
circumstances, this Court does not find any merit in the appeal. It
is accordingly dismissed.
(Ramesh Kumar Datta,J.)
Patna High Court
Dated 5th August, 2010
NAFR/ S.Pandey.