Dass Vs. State of Haryana  INSC 250 (5 April 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 630
OF 2003 Banarsi Dass Appellant State of Haryana Respondent
The present appeal under Article 136 of the Constitution of India
is directed against the final judgment and order of conviction dated 20.11.2002
passed by the learned Single Judge of the High Court of Punjab & Haryana at
Chandigarh. Learned counsel appearing for the appellant has raised challenge to
the impugned judgment, inter alia, but primarily on the following grounds:
is no evidence to prove demand and voluntary acceptance of the alleged bribe so
as to attract the offence under Section 5(2) of the Prevention of Cor- ruption
Act, 1947 (For short, `the Act'). Reliance has been placed by the judgment of
this Court in the case of C.M. Girish Babu vs. CBI, Cochin, High Court of
Kerala, [2009 (3) SCC 779].
High Court as well as the trial Court have passed an order of conviction
despite the fact that there was serious contradiction between the statements of
the prosecution witnesses. And in fact, there was no cogent and reliable
evidence to support the charge against the appellant. Even the recovery has not
been proved in accordance with law. These fac- tors clearly justify the benefit
of doubt in favour of the appellant and thus entitling the accused of judgment
punishment awarded to the appellant is unreason- ably excessive. The appellant
has faced the agony of trial and thereafter other proceedings arising therefrom
for the last 20 years. In these circum- stances, the appellant has even faced
great hardship having lost his livelihood which adversely affected the future
of his family members. While relying upon the judgment of this Court in the
case of Aditya Nath Pandey v. State of U.P. [2000 (9) SCC 206], it is contended
that the sentence undergone would suf- fice and meet the ends of justice. Of
course, this argument has been advanced without prejudice to the above
On behalf of the State, it has been argued that the judgment of
conviction and sentence is duly supported by the oral and documentary evidence
produced by the prosecution. The prosecution has been able to bring home the
charge against the accused. The ingredients of Section 5(2) of the Act as well
as Section 161 of the Indian Penal Code (for short, `the IPC`) are duly
satisfied. The appellant being a public servant has not to indulge in demanding
bribe. Thus, no leniency is called for in favour of the accused. In order to
examine the merit or otherwise the contentions raised, it is important for us
to refer to the basic facts as emerged from the records, giving rise to the
The appellant was newly posted as patwari in Village Piruwala. One
Pritam Kaur had agricultural land at Village Piruwala. Her daughter, namely,
Sat Pal Kaur was informed during 1986 that Khasra Girdawaris of Pritam Kaur's
land had been recorded in the name of Jit Singh and others as tenants by the
previous Patwari. Smt. Sat Pal Kaur took up the matter with those tenants who
admitted that the Khasra Girdawaris has been wrongly recorded by the Ex-Patwari
in their favour.
obtained no-objection on the application moved by her mother which was
submitted to the Tehsildar Chachhrauli. The application was moved for the
purposes of incorporating the necessary changes at the time of the next Khasra
Girdawaris in the coming season. Smt. Sat Pal Kaur contacted the village
Patwari (appellant herein) in the Kharif season for recording Khasra Girdawaris
in favour of her mother during the period of October, 1986. It is further the
case of the prosecution that the appellant demanded illegal gratification of Rs.
900/- (rupees nine hundred) but that deal was struck at Rs. 400/- (rupees four
hundred) for making the requisite changes, in the presence of Gurmej Singh, a
taxi driver, whose taxi had been engaged by Sat Pal Kaur while visiting the
appellant. Sat Pal Kaur contacted Shri Hari Singh, Deputy Superintendent of
Police, Jagadhri at Bilaspur where Shri S.K. Joshi, Sub- Divisional Executive
Magistrar, Jagadhri, was also present.
reported the matter. Her statement was recorded. She also produced four
currency notes of the denomination of Rs. 100/- each and the same were signed
both by Hari Singh, DSP and S.K. Joshi, Sub-divisional Executive Magistrate.
They went to Patwari of Chachhrauli. They were told by the officers that on
demand she should hand over the money and once money was accepted she should
inform the Police Station and the trap was accordingly planned. Sat Pal Kaur
accompanied by Gurmej Singh left for Patwar-khana which was about one km. from
the Police Station, Chachhrauli. She took Rs. 400/- duly signed by the said
officers to pay as gratification to the Patwari. The money was given to the
appellant and accordingly Gurmej Singh reported the matter to Shri Hari Singh,
DSP and Shri S.K. Joshi at the Police Station.
rushed to the spot in a jeep that was parked at some distance from
Patwar-khana. On actual search of the appellant, four currency notes duly
signed by the officers were recovered from the front left pocket of the shirt.
Recovery memo for the same was prepared. The tenants had raised no objection
and that application was also found on the table of the appellant in
Patwar-khana which was taken into possession.
conclusion of the trap, the appellant was arrested and a case was registered
with the Police Station Chachhrauli.
completion of the investigation, a challan regarding commission of offence
under Section 161 of the IPC and under Section 5(2) of the Act was filed before
the Court of competent jurisdiction. The Court framed charges on both these
offences and the appellant was put to trial.
The prosecution in support of its case examined Tara Chand Pawar
(PW-1), Smt. Sat Pal Kaur (PW-2), Rajiv Sharma (PW-3), Gurmej Singh (PW-4),
Daya Singh (PW-5), Subhash Chander Patwari (PW-6), Shiv Dayal Reader (PW-7),
Prem Bihari Lal (PW-8), Ram Chander, ASI(PW-9), Shri S.K. Joshi (PW-10) and
Shri Hari Ram, DSP (PW-11) and closed its evidence. When the appellant was
examined under Section 313 of Criminal Procedure Code, 1973 (for short `the
Cr.P.C.'), he denied the allegations leveled against him and claimed to be
The special Judge, Ambala, by order dated 30.01.1988 convicted and
sentenced the appellant under Section 161 of the IPC to undergo rigorous
imprisonment for three years and under Section 5(2) of the Act to undergo
rigorous imprisonment for four years and to pay a fine of Rs.1,000/-. Feeling
aggrieved by this order, the appellant filed Criminal Appeal No. 83-SB of 1988
in the High Court of Punjab & Haryana at Chandigarh. The High Court by
order dated 20.11.2002 dismissed the appeal holding that the appellant was
To establish the charge against the appellant-accused, the
prosecution in relation to the demand and receipt of the illegal gratification,
had examined mainly four witnesses; Sat Pal Kaur (PW-2), Gurmej Singh (PW-4),
S.K. Joshi (PW-10) and Hari Singh (PW-11). Out of these material witnesses,
PW-2 and PW-4 both were declared hostile and were cross-examined by the public
prosecutor. Leave to that effect was granted by the Court. PW-2 had stated in
her examination-in-chief that she apprehended that appellant wanted illegal
gratification and for that reason he was not recording the change in Khasra
Girdawaris in favour of her mother. PW-2 further stated that she had learnt
from co-villagers that Rs.300-400/- as reward was to be given for such a job.
She had contacted the police thereafter. She was confronted with her statement
EX.PB recorded under Section 161 of the IPC wherein she had stated that Banarsi
Dass had demanded illegal gratification of Rs. 400/- from her in the presence
of Gumrej Singh. She also stated that she had signed the memos but she did not
read them as she was quite puzzled. In the cross-examination, she also stated
that "earlier to the day of the raid, Banarsi Dass has demanded Rs. 900/-.
It is correct that accused Banarsi Dass had apologized to me and I have
accepted his apology". She further volunteered, "it is my humble
request to the Court that the Court should also accept the apology of the
accused who has got small children to maintain".
she proceeded to state that she had paid a sum of Rs. 400/- to the accused for
recording girdwari of the current crop in favour of the mother. In her
cross-examination, it has also been stated that when she placed Rs. 400/- on
his table, the accused had already recorded girdawari in favour of Jit Singh
and others and the same had been verified by the Kanungo. She (PW-2) had an
altercation with the accused as to why he had recorded Girdwari in favour of
Jit Singh and others. Then she placed Rs. 400/- on the table wherefrom the same
was picked up by the police. Gumrej Singh (PW-4), the other witness who was
also declared hostile and who was subjected to cross-examination by the
prosecution, stated that the appellant had not accepted or demanded any money
from Sat Pal Kaur in his presence. He denied that he had made any statement to
the police (Ex.PW-3/A). His statement under Section 161 of the IPC was
completely denied by him. According to him, he had taken Sat Pal Kaur to Chachhrauli
but he remained sitting in the car, 100 yards away from Patwar-khana and he did
not know the accused as he hailed from Chachhrauli.
Witnesses PW-10 and PW-11 are the Senior Officers of the
Administration and the Police. The complainant complained to them about the
appellant demanding bribe from her for correcting the Khasra Girdawaris in the
name of the mother of PW-2. A trap was planned. In furtherance to which PW-2
had gone to the Patwar-khana and gave Rs. 400/- (the signed notes of Rs.100/-
each) upon which the Gurmej Singh was supposed to have informed the police,
about the acceptance of money by the appellant. Thereafter, the police came to
the spot and recovered the money from the front left pocket of the appellant's
shirt. The search of the appellant was conducted by the police and money was
recovered (Ex.P1 to Ex.P4) for which memo Ex.PD. was prepared. The tainted
notes, shirt and even the money otherwise recovered from the pocket of the
appellant were taken into custody vide these exhibits.
It is apparent that PW-10 and PW-11 were not present in the
Patwar-khana when the money was demanded and accepted by the appellant. The
prosecution primarily relied on the two witnesses PW-2 and PW-4 respectively
who were declared hostile. Certainly the prosecution can rely upon the
statements of these witnesses and list their depositions made before the Court
by having those statements corroborated or contradicted, as the case may be, by
their earlier statements recorded under Section 161 of the I.P.C. At this
stage, the finding recorded by the High Court can usefully be referred to:
Smt. Sat Pal Kaur has clearly stated that accused has informed her that
Girdawari of her mother's land had been recorded in the name of Jit Singh and
others as tenants. She had contacted Jit Singh and others and obtained no
objection from them.
application Ex.PA was forwarded by her through her servant to the Tehsildar.
She had contacted Banarsi Dass and requested him to change the said girdawari
in her mother's name, who told her that he will do so at the time of recording
of khasra girdawari in the next season. She apprehended that he wanted illegal
gratification and for that reason, he was not recording the change of girdawari
in the name of her mother. She contacted the Police and informed them about the
matter. She had visited Patwar-khana, where Banarsi Dass was present and placed
Rs. 400/- on his table. In the meantime, police party came and seized that
declared a hostile witness. In cross- examination, she admitted her statement
made under Section 161 IPC. She also admitted that Gurmej Singh was not present
when Banarsi Dass accused had made a demand of illegal gratification of Rs.
that it is correct that Banarsi Dass accused has apologized from her and she
had accepted his apology. She further volunteered that it is her humble request
to the Court that the Court should also accept the apology of the accused. The
police party was sitting in the Thana. So. when the recovery was made by the
police from the appellant- accused, somebody must have informed the police
about the handing of the bribe and Gurmej Singh was the only person. Shri S.K.
Joshi, Sub-Divisional Magistrate, Kalka has appeared as PW10. He has searched
Smt. Satpal Kaur and her driver. Gurmej Singh visited the Police Station in the
afternoon and complained that Shri Banarsi Dass Patwari Halqa has demanded Rs.
900/- for the correction of Khasra girdawari. Shri Hari Singh recorded the
statement of Sat Pal Kaur and made search of her person and after the search,
Rs.400/-, which were signed by him and Shri Hari Singh, were given to her. The
DSP had prepared memo Ex-PC which was signed by him. He along with DSP, Smt. Sat
Pal Kaur and Gurmej Singh went to Police Station Chachrauli and then went to
Patwar-khana. Gurmej Singh was directed to come to the Police Station in case
the accused accepted the money. After receiving message, they raided Patwar-
khana. Accused was found sitting in the Patwar-khana and his person was
searched by the DSP in his presence and currency notes Ex.P1 to Ex.P4 were
recovered from the front pocket of the shirt, which the accused was wearing.
These were taken into possession vide memo Ex.PD. Hari Singh also supported the
same. So, if merely shadow witness had turned hostile, accused-appellant cannot
be acquitted. Mr. S.K.Joshi ( PW-10) can also be considered as a witness of
recovery as currencynotes handed over to Smt. Sat Pal Kaur after being signed
by PW-10 and PW-11 vide memo Ex.PC was recovered by DSP (PW-11) vide memo Ex.PD
in the presence of Sat Pal Kaur PW-2 and Shri S.K. Joshi, PW-10".
The above findings recorded by the High Court show that the Court
relied upon the statements of PW-10 and PW-11. It is further noticed that
recovery of currency notes Ex. P-1 to P-4 from the shirt pocket of the accused,
examined in light of Ex. PC and PD, there was sufficient evidence to record the
finding of guilt against the accused. The Court remained uninfluenced by the
fact that the shadow witness had turned hostile, as it was the opinion of the
Court that recovery witnesses fully satisfied the requisite ingredients. We
must notice that the High Court has fallen in error in so far as it has drawn
the inference of demand and receipt of the illegal gratification from the fact
that the money was recovered from the accused.
It is a settled canon of criminal jurisprudence that the
conviction of an accused cannot be founded on the basis of inference. The offence
should be proved against the accused beyond reasonable doubt either by direct
evidence or even by circumstancial evidence if each link of the chain of events
is established pointing towards the guilt of the accused. The prosecution has
to lead cogent evidence in that regard. So far as it satisfies the essentials
of a complete chain duly supported by appropriate evidence. Applying these
tests to the facts of the present case, P-10 and P-11 were neither the eye-
witnesses to the demand nor to the acceptance of money by the accused from Smt.
Sat Pal Kaur (PW-2). It is unfortunate but true that both PW-2 and PW-4 made
statements before the Court which were quite different from the one made by
them before the police during the investigation under Section 161 of the IPC.
Singh (PW-4) completely denied the incident and refused to acknowledge that the
sum of Rs. 900/- only was demanded by the accused from PW-2 in his presence and
that the money was accepted in the Patwar-khana by the accused. PW-2 obviously
has not stated the complete truth before the Court. Though after being declared
hostile in her cross-examination she has supported some part of the prosecution
case, but she has virtually denied the essential ingredients to bring home the
guilt of the accused either under Section 5 (2) of the Act or under Section 161
of the IPC. She seems to have forgiven the accused for making such a demand and
made such a statement before the Court that the Court should also ignore the
not and should not even be taken to have suggested that PW-10 and PW-11 have
not made correct statement before the Court or that the Court has disbelieved
any part of their statement. But, fact of the matter remains that their
statement with regard to demand and acceptance is based on hearsay i.e. what
was told to them together by PW-2 and even by PW-4 at that stage. The money was
certainly recovered from the pocket of the accused vide memo Ex. P-D. We,
therefore, do not accept the contention on behalf of the accused that the
amount was not recovered and the recovery is improper in law. Ex. P-D has duly
been attested by witnesses. Thus, it cannot be said that the recovery from the
pocket of the accused is unsustainable in law and is of no consequence.
To constitute an offence under Section 161 of the IPC it is
necessary for the prosecution to prove that there was demand of money and the
same was voluntarily accepted by the accused. Similarly, in terms of Section 5
(1) (d) of the Act, the demand and acceptance of the money for doing a favour
in discharge of its official duties is sine qua non to the conviction of the
accused. In the case of M.K. Harshan v.
Kerala [1996 (11) SCC 720], this Court in somewhat similar circumstances, where
the tainted money was kept in the drawer of the accused who denied the same and
said that it was put in the drawer without his knowledge, held as under :
is in this context the courts have cautioned that as a rule of prudence, some
corroboration is necessary. In all such type of cases of bribery, two aspects
are important. Firstly, there must be a demand and secondly there must be
acceptance in the sense that the accused has obtained the illegal
gratification. Mere demand by itself is not sufficient to establish the offence.
Therefore, the other aspect, namely, acceptance is very important and when the
accused has come forward with a plea that the currency notes were put in the
drawer without his knowledge, then there must be clinching evidence to show
that it was with the tacit approval of the accused that the money had been put
in the drawer as an illegal gratification. Unfortunately, on this aspect in the
present case we have no other evidence except that of PW-1. Since PW-1's
evidence suffers from infirmities, we sought to find some corroboration but in
vain. There is no other witness or any other circumstance which supports the
evidence of PW-1 that this tainted money as a bribe was put in the drawer, as
directed by the accused. Unless we are satisfied on this aspect, it is
difficult to hold that the accused tacitly accepted the illegal gratification
or obtained the same within the meaning of Section 5(1)(d) of the Act,
particularly when the version of the accused appears to be probable".
Reliance on behalf of the appellant was placed upon the judgment
of this Court in the case of C.M. Girish Babu (supra) where in the facts of the
case the Court took the view that mere recovery of money from the accused by
itself is not enough in absence of substantive evidence for demand and
held that there was no voluntary acceptance of the money knowing it to be a
bribe and giving advantage to the accused of the evidence on record, the Court
in para 18 and 20 of the judgment held as under :
In Suraj Mal v. State (Delhi Admn.) [1979 (4) SCC 725] this Court took the view
that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the
circumstances under which it is paid is not sufficient to convict the accused
when the substantive evidence in the case is not reliable.
recovery by itself cannot prove the charge of the prosecution against the
accused, in the absence of any evidence to prove payment of bribe or to show
that the accused voluntarily accepted the money knowing it to be bribe.
three-Judge Bench in M. Narsinga Rao v. State of A.P.[2001 (1) SCC 691: SCC
(Cri) 258] while dealing with the contention that it is not enough that some
currency notes were handed over to the public servant to make it acceptance of
gratification and prosecution has a further duty to prove that what was paid
amounted to gratification, observed: (SCC p. 700, para 24) "24. ... we
think it is not necessary to deal with the matter in detail because in a recent
decision rendered by us the said aspect has been dealt with at length. (Vide
Madhukar Bhaskarrao Joshi v. State of Maharashtra [2000 (8) SCC 571]).The
following statement made by us in the said decision would be the answer to the
aforesaid contention raised by the learned counsel: (Madhukar case, SCC p. 577,
para 12) `12. The premise to be established on the facts for drawing the
presumption is that there was payment or acceptance of gratification. Once the
said premise is established the inference to be drawn is that the said
gratification was accepted "as motive or reward" for doing or
forbearing to do any official act. So the word "gratification" need
not be stretched to mean reward because reward is the outcome of the
presumption which the court has to draw on the factual premise that there was
payment of gratification. This will again be fortified by looking at the
collocation of two expressions adjacent to each other like "gratification
or any valuable thing". If acceptance of any valuable thing can help to
draw the presumption that it was accepted as motive or reward for doing or
forbearing to do an official act, the word "gratification" must be
treated in the context to mean any payment for giving satisfaction to the
public servant who received it."
In fact, the above principle is no way derivative but is a
reiteration of the principle enunciated by this Court in Suraj Mal case
(supra), where the Court had held that mere recovery by itself cannot prove the
charge of prosecution against the accused in the absence of any evidence to prove
payment of bribe or to show that the accused voluntarily accepted the money.
Reference can also be made to the judgment of this Court in Sita Ram v. State
of Rajasthan [1975 (2) SCC 227], where similar view was taken.
The case of C.M. Girish Babu (supra) was registered under the
Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with
Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act
raises a rebuttable presumption where the public servant accepts gratification
other than legal remuneration, which presumption is absent in the 1947 Act.
Despite this, the Court followed the principle that mere recovery of tainted
money divorced from the circumstances under which it is paid would not be
sufficient to convict the accused despite presumption and, in fact, acquitted
the accused in that case.
In light of the above principles enunciated by the Court now we
may examine the evidence on record with specific emphasis to the demand and
acceptance of illegal gratification for changing Khasra Girdawaris in the name
of mother of Smt. Sat Pal Kaur (PW-2). Besides, the part of her statement which
we have aforenoticed, she also stated that she had never made the statement Ex.
PW-3/A before the police. Even on the memos which have been signed by her she
stated that she had signed them without reading the same. She was educated up
to 4th Class only. In her cross-examination she does support a few facts of the
prosecution but on the material circumstance/fact she has completely taken a
somersault while making a statement before the Court. Gurmej Singh, besides
disowning his statement under Section 161 of the IPC in its entirety, stated
that he was not present either when the bribe was demanded or when the same was
accepted. The accused, when was put to incriminating evidence against him in
terms of Section 313 of the Cr.P.C., did admit that PW-2 (complainant) had come
to the office of Patwar-khana with the police but stated that no other persons
had accompanied them. PW-2 insisted on chaning the Khasra Girdawaris and after
she got annoyed, she got him falsely implicated. Money alleged to have been
recovered from him, in fact, was lying on the table without his knowledge or
demand. PW-2 has also stated in her statement that she kept the money on the
table after some altercation with the accused.
circumstances, it is difficult for the Court to hold that the prosecution has
established the offence against the accused, that he accepted the money
voluntarily as illegal gratification. The effect of the statement of PW-2 and
PW-4 has a substantial adverse effect on the case of the prosecution. There are
other witnesses examined by the prosecution which are formal witnesses and in
the absence of support of PW-2 and PW-4, the prosecution has not been able to
establish the charge (demand and acceptance of illegal gratification by the
accused), thus entitling him to some benefit on the technical ground of two
witnesses i.e. PW-2 and PW-4, turning hostile.
In light of the statement of two hostile witnesses PW-2 and PW-4,
the demand and the acceptance of illegal gratification alleged to have been
received by the accused for favouring PW-2 by recording the Khasra Girdawaris
in the name of her mother cannot be said to have been proved by the prosecution
in accordance with law. We make it clear that it is only for the two witnesses
having turned hostile and they having denied their statement made under Section
161 of the I.P.C. despite confrontation, that the accused may be entitled to
accquital on technical ground. But, in no way we express the opinion that the
statement of witnesses including official witnesses PW-10 and PW-11, are not
accepted by the Court.
we have no reason to disbelieve the recovery of Ex.
P-4 vide Ex. P-D.
In the light of this we are of the considered view that the
judgment of the High Court convicting the accused for the offences with which
the accused was charged cannot be sustained in law.
For the reasons aforerecorded and particularly in view of the fact
that two witnesses turned hostile, giving the benefit of doubt on technical
ground to the accused, we hereby set aside the judgement of the High Court and
acquit the accused of both the charges i.e. under Section 161 of the IPC and
under Section 5 (2) of the Act. The appeal is accordingly allowed leaving the
parties to bear their own costs. Bail bonds, if any, furnished by the appellant
.......................J. [ AFTAB ALAM ]
.......................J. [ SWATANTER KUMAR ]
April 5, 2010.