Prasad (Dead) by Lrs Vs. State of Madhya Pradesh  Insc 865 (27 August 2007)
Thakker & Tarun Chatterjee C.K. Thakker, J.
present appeal was filed by appellant Girja Prasad (since deceased) against the
judgment and final order passed by the High Court of Madhya Pradesh, Jabalpur on April 17, 2002 in Criminal Appeal No. 1070 of 1989. By the said judgment,
the High Court set aside an order of acquittal recorded by the II Addl.
District & Sessions Judge, Jabalpur on March 15, 1989 in Special Criminal
Case No. 40 of 1985 and convicted the appellant for an offence punishable under
Section 161 of the Indian Penal Code (IPC for short) and Section
5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947
(hereinafter referred to as the Act) and ordered him to undergo
simple imprisonment for four months and to pay fine of Rs.200/- for the offence
under Section 161, IPC. No separate sentence, however, was awarded to him for
offence under the Prevention of Corruption Act.
stated, the facts are that the appellant (Girja Prasad) was working as Lower
Division Clerk (LDC) in the Office of Divisional Ayurved Chikitsa Adhikari, Jabalpur
Division, Jabalpur. It was the case of the prosecution that on September 20, 1983, Ramanarain Rajoria, Divisional Ayurved
Chikitsa Adhikari, Jabalpur Division, Jabalpur (PW 4) paid surprise visit to Ayurvedic Chikitsalaya, Dindori, District
Mandla and found that several members of the staff were absent including the Ayurvedic
Chikitsak himself. Consequently, he locked the Ayurvedic Chikitsalaya and
returned to Jabalpur.
Rajoria was accompanied by the accused Girja Prasad Gupta. On September 27, 1983, the complainant Anup Kumar (PW 1)
came to Jabalpur and informed to the Divisional Ayurvedic
Chikitsa Adhikari that he was on casual leave from September 7, 1983 to September
11, 1983. He also
stated that he had submitted an application for extension of leave upto September 23, 1983 but the same was not available in
the Office of Divisional Ayurvedic Chikitsa Adhikari, Jabalpur. On the same day, the Divisional Ayurvedic
Chikitsa Adhikari went to Dindori and opened the lock of the Ayurvedic Chikitsalaya.
It is alleged that PW 4- Ramnarain Rajoria asked the complainant that either he
should pay an amount of Rs.500/- through accused Girja Prasad or should suffer
suspension. The case of the prosecution was that Anup Kumar paid Rs.300/- on
the same day to accused Girja Prasad at Dindori and assured him to pay the
remaining amount of Rs.200/- on October 5, 1983 at Jabalpur.
According to the prosecution, PW1- complainant Anup Kumar was not willing to
pay the remaining amount of Rs.200/- to the Divisional Ayurvedic Chikitsa Adhikari.
He, therefore, lodged a complaint in writing in the office of Lokayukt at Jabalpur. In the said complaint, it was
stated that the complainant wanted the corrupt officer to be caught red-
handed. One J.M. Wadhwa (PW 8), an Assistant Engineer from P.H.E.D., a Gazetted
Officer agreed to act as trap witness. The complainant and Wadhwa were asked to
come on the next day i.e. on October 5, 1983
for arranging a trap. Accordingly, on October 5, 1983, the complainant Anup Kumar reached
the Office of Lokayukt at 11.00 a.m. He
was asked to bring the accused in a hotel so that he may be caught red-handed
accepting the bribe. Two currency notes of Rs.100/- denomination each were kept
in the pocket of the complainant duly treated with chemical powder and he was
informed about the special signal after giving bribe to the accused, so that
the accused can be caught. The complainant got back to the Lokayukt Office and
informed the trap-party that the accused had promised to come to Narmada
Restaurant at 5.00 p.m. At 5.00 p.m., the complainant came with the accused in the restaurant and
sat near the table of Wadhwa, panch witness, who was intimated about the
currency notes treated with chemical powder.
accused then asked the complainant as to whether he had brought the amount. The
complainant replied in the affirmative, took out two currency notes with his
right hand and gave them to the accused. The complainant immediately gave
signal to the trap party.
of Special Police Establishment, S.K. Tiwari (PW 10) and Wadhwa (PW 8), Gazetted
Officer who was associated with the trap party reached near the
accused and asked him where the money was. The accused told them that the money
was in the pocket of his shirt. The hands of the accused were washed in the
solution of the sodium carbonate and liquid became matmaila. The pocket
of the shirt of the accused was separately washed in the solution of the sodium
carbonate and the liquid again became matmaila. A panchnama of the
proceedings was drawn. Another panch was Jawahar Soni (PW 6). Liquid of the
hand-wash and pocket-wash of the accused was separately
sealed in two bottles and was sent to the Forensic Science Laboratory. On
analysis, it was found by the Chemical Examiner that the pocket- wash
of the shirt of the accused was having traces of phenolphthalein powder. Sanction
for prosecution of the accused was granted by the State Government. Charge
sheet was submitted before the Special Judge.
was conducted and the accused was charged for offences punishable under Section
161, IPC and Sections 5(1)(d) and 5(2) of the Act.
prosecution, in order to prove the case against the accused, inter alia
examined PW1-Anup Kumar- Complainant, PW 4-Ramnarain Rajoria, PW 6- Jawahar Soni-Panch
II, PW 8-J. M. Wadhwa-Panch I, PW 10-S.K. Tiwari-Inspector of Special Police
case of the appellant-accused was of total denial. In his defence, he stated
that he had been falsely implicated.
may be stated that at the trial, both the Panch witnesses-Jawahar Soni-PW 6 and
Wadhwa-PW 8 did not support the prosecution and were treated hostile.
The fate of the case, therefore, hanged on two witnesses, PW 1-Anup
Kumar-Complainant and PW 10-S.K. Tiwari-Inspector of Special Police
Trial Court negatived the contention of the accused that sanction was not in
accordance with law and the trial was vitiated. The Court, however, acquitted
the accused holding that both the Panchas did not support the case of the
prosecution. According to the prosecution, it was PW 4-Ramnarain Rajoria, the
Divisional Ayurvedic Chikitsa Adhikari who had asked the complainant to pay
Rs.500/- to the accused that the complainant paid the said amount to him. The
Trial Court, therefore, concluded that the money was to be paid to PW
4-Ramnarain Rajoria who was not arrayed as accused and against whom no
proceedings had been initiated.
Regarding evidence of PW 1-Anup Kumar- Complainant and PW 10-S.K. Tiwari-Inspector
of Special Police Establishment, the Court stated that their evidence could not
be relied upon since they were interested witnesses.
Court also observed that the accused was merely a Clerk and he was not in a
position to oblige the complainant by not placing him under suspension. The
power to suspend was only with Ramnarain RajoriaPW 4, and the main
work was to be done by Ramnarain Rajoria, but it was not clear under what
compelling circumstances, no prosecution was launched against Ramnarain Rajoria.
The Court also observed that presumption under Section 4(1) of the Act was not
available to the prosecution as the amount paid by the complainant was to be
given to PW4-Ramnarain Rajoria.
the Trial Court acquitted the accused.
State preferred an appeal against the acquittal and the High Court, as observed
earlier, set aside the order of acquittal and convicted the accused for the
offences with which he was charged. The said conviction has been challenged by
the accused in this Court.
9. On August 2, 2002, notice was issued by this Court.
On September 2, 2002, leave was granted and the accused
was ordered to be released on bail. The matter was thereafter placed for final
August 1, 2007, when the matter was placed before
us for final hearing, it was stated that during the pendency of the appeal, Girja
Prasad (original appellant-accused) died. It was stated that Smt. Munni Bai,
widow of deceased Girja Prasad had filed an application under proviso to
sub-section (2) of Section 394 of the Code of Criminal Procedure, 1973
(hereinafter referred to as the Code) to allow her to continue the
appeal by seeking leave of this Court. The said provision confers right on near
relatives of the accused who is convicted and sentenced to imprisonment and who
dies during the pendency of the appeal to continue the appeal in certain cases
by applying to the Court within thirty days of the death of the appellant. Such
application was filed by Munni Bai. The Registry of this Court, however, raised
an objection that there was delay of 149 days in filing the application. After
hearing learned counsel for the parties, we condoned delay, granted the prayer
of applicant-Munni Bai and allowed her to continue the appeal. We, thereafter,
heard learned counsel for the parties.
The learned counsel for the appellant contended that the High Court was wholly
wrong in allowing the appeal against an order of acquittal and in convicting
the deceased-accused for offences punishable under Section 161, IPC and Section
5(1)(d) read with Section 5(2) of the Act. It was submitted that the Trial
Court was right in acquitting the accused, particularly when no prosecution was
lodged against PW 4 Ramnarain Rajoria who was the main culprit and for whom the
amount of Rs.200/- was alleged to have been accepted by the accused. It was
also submitted that the Trial Court was right in observing that no independent
witness supported the prosecution and only interested version was
placed before the Court in the form of deposition of PW 1Anup Kumar-Complainant
and PW 10-S.K. Tiwari, Inspector. Both independent panchas (PW 8Wadhwa and PW 6Jawahar
Soni) did not oblige the prosecution.
The counsel submitted that from the evidence, it could not be said that demand
and acceptance of Rs.200/- by the accused was proved. But even if it was held
proved, since the accused was not in a position to oblige the complainant and
the demand and acceptance was for and on behalf of PW 4-Ramnarain Rajoria, the
Trial Court was right in holding that the accused was merely made a
was also urged that even if the High Court felt that the other view was
possible, as per settled law, it ought not to have disturbed the order of
Finally, it was submitted that during the pendency of the appeal in this Court,
the accused had died and hence there is no question of sending the accused to
jail. On the other hand, if the conviction is set aside, the family members of
the deceased-accused would be able to get retiral benefits of the deceased.
The learned counsel for the respondent-State, on the other hand, supported the
order of conviction passed by the High Court. According to him, the entire
approach of the Trial Court was illegal and faulty. Once it is proved that the
accused accepted the amount, it was immaterial whether he was in a position to
oblige the complainant or not or whether the acceptance of amount was for him
or for someone else. The Trial Court was, therefore, not right in acquitting
the accused on the ground that the accused accepted the amount for Ramnarain Rajoria-PW
4. Grievance was also made by the learned advocate that the Trial Court was
legally wrong in discarding the evidence of PW 1-Anup Kumar- Complainant and PW
10-S.K. Tiwari-Inspector, characterizing them as interested
witnesses. It was, therefore, submitted that the appeal deserves to be
Having anxiously considered the rival contentions of the parties and having
gone through the record of the case meticulously, we are of the view that the
High Court was wholly justified in setting aside acquittal of the accused and
in recording an order of conviction against him. From what is stated above, it
is clear that the Trial Court also believed the case of the prosecution that
the amount of Rs.200/- was paid by PW1-Anup Kumar-Complainant to accused Girja
Prasad which is clear form the following finding recorded in para 46 of the
from the above evidence from Anup Kumar, it becomes clear that Anup Kumar
entrusted Rs.200/- to the accused so that accused Girja Prasad may give it to Shri
The Court then proceeded to state;
the acceptance of Rs.200/- currency notes by accused Girja Prasad, he was only
innocent scarifying goat in the hands of Mr. Rajoria 18. The Trial Court
goes without saying that accused Girja Prasad worked as innocent carrier to Rajoria
misusing his post while performing his official duty or he adopted illegal
means for that.
us, the learned advocate for the respondent-State is right in submitting that
once it is proved that the amount has been received by the accused, presumption
under Section 4 of the Act would get attracted. Section 4 of the Prevention of
Corruption Act, 1947 (since repealed) provided for presumption where public
servant accepted gratification other than legal remuneration. Sub-section (1)
of the said section was relevant and read as under;
where public servant accepts gratification other than legal remuneration.(1)
Where in any trial of an offence punishable under Section 161 or Section 165 of
the Indian Penal Code (45 of 1860) 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 provided that an accused person has accepted or
obtained, or has agreed to accept or attempted 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
The Trial Court observed that the presumption is not absolute, but is
rebuttable and the accused can prove otherwise for getting rid of such
presumption. This is true. But, in our view, the Trial Court lost sight of the
fact that the case of the accused was of total denial and of
false involvement. The presumption, in the circumstances, could not
be said to have been rebutted by the accused.
our opinion, once the finding was recorded by the Trial Court that the accused
had accepted the amount, it was wholly immaterial whether the said acceptance
of amount was for him or for someone else.
if an accused accepts the amount for someone else, he commits an
offence. In this connection, we may refer to both the provisions i.e. Section
161, IPC (before it was repealed by Section 31 of the Prevention of Corruption
Act, 1988) and Section 5(1)(d) of the Prevention of Corruption Act, 1947
(before the said Act was repealed by the Prevention of Corruption Act, 1988).
Public servant taking gratification other than legal remuneration in respect of
an official act.Whoever, being or expecting to be a public servant, accepts or
obtains, or agrees to accept, or attempts to obtain from any person, for
himself or for any other person, any gratification whatever, other than legal
remuneration, as a motive or reward for doing or forbearing to do any official
act or for showing or forbearing to show, in the exercise of his official
functions, favour or disfavour to any person, or for rendering or attempting to
render any service or disservice to any person, with the Central or any State
Government or Parliament or the Legislature of any State, or with any local
authority, corporation or Government company referred to in section 21, or with
any public servant, as such, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with
supplied) 5(1). Criminal misconduct.(1) A public servant is said to commit the
offence of criminal misconduct--- (a) to (c) .
he, by corrupt or illegal means or by otherwise abusing his position as public
servant, obtains for himself or for any other person any valuable thing or
pecuniary advantage. (emphasis supplied)
was, therefore, of no consequence whether the accused had accepted the amount
for and on behalf of Ramnarain Rajoria-PW 4. Once it is proved that he accepted
the amount of Rs.200/-, he cannot escape from criminal liability on a specious
ground that he was made scapegoat or was merely innocent
carrier. It was also immaterial whether the accused was or was not in a
position to oblige the complainant by preventing or delaying his suspension.
The case of the prosecution was that the complainant was asked to pay an amount
of Rs.500/- by the accused and the said amount had been accepted by him in two
installments, Rs.300/- at Dindori and Rs.200/- at Jabalpur where trap was
are equally unable to uphold the contention of the learned counsel for the
appellant that the trial Court was right in not relying upon PW 1-Anup
Kumar-Complainant and PW 10-S.K. Tiwari-Inspector of Special Police
Establishment. The trial Court, it may be stated, discarded the evidence of
these two witnesses by laying down the following proposition of law;
goes without saying that Anup Kumar and Shri S.K. Tiwari were concerned only
with the success of the trap and thus both these persons are interested
witnesses. PW 10, Shri Tiwari is Inspector in Lokayukt Office therefore he is
highly interested witness.
our judgment, the above proposition does not lay down correct law on the point.
It is well-settled that credibility of witness has to be tested on the
touchstone of truthfulness and trustworthiness. It is quite possible that in a
given case, a Court of Law may not base conviction solely on the evidence of
Complainant or a Police Official but it is not the law that police witnesses
should not be relied upon and their evidence cannot be accepted unless it is
corroborated in material particulars by other independent evidence. The
presumption that every person acts honestly applies as much in favour of a
Police Official as any other person.
infirmity attaches to the testimony of Police Officials merely because they
belong to Police Force. There is no rule of law which lays down that no
conviction can be recorded on the testimony of Police Officials even if such
evidence is otherwise reliable and trustworthy. The rule of prudence may
require more careful scrutiny of their evidence. But, if the Court is convinced
that what was stated by a witness has a ring of truth, conviction can be based
on such evidence.
is not necessary to refer to various decisions on the point. We may, however,
state that before more than half-a-century, in the leading case of Aher Raja Khima
v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated:
presumption that a person acts honestly applies as much in favour of a police
officer as of other persons, and it is not judicial approach to distrust and
suspect him without good grounds therefor. Such an attitude could do neither
credit to the magistracy nor good to the public.
only run down the prestige of the police administration. (emphasis
Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr.
A.S. Anand, J. (as His Lordship then was) stated:
the evidence of the police officials, after careful scrutiny, inspires
confidence and is found to be trustworthy and reliable, it can form basis of conviction
and the absence of some independent witness of the locality to lend
corroboration to their evidence, does not in any way affect the
creditworthiness of the prosecution case.
Regarding setting aside acquittal by the High Court, the learned counsel for
the appellant relied upon Kunju Muhammed v. State of Kerala, (2004) 9 SCC 193 :
JT (2003) 7 SC 114, Kashi Ram v. State of M.P., (2002) 1 SCC 71 : JT (2001) 8
SC 650 and Meena v. State of Maharashtra, (2000) 5 SCC 21 : JT 2000 (4) SC 521.
In our opinion, the law is well settled. An appeal against acquittal is also an
appeal under the Code and an Appellate Court has every power to reappreciate,
review and reconsider the evidence as a whole before it. It is, no doubt, true
that there is presumption of innocence in favour of the accused and that
presumption is reinforced by an order of acquittal recorded by the Trial Court.
But that is not the end of the matter. It is for the Appellate Court to keep in
view the relevant principles of law, to reappreciate and reweigh the evidence
as a whole and to come to its own conclusion on such evidence in consonance
with the principles of criminal jurisprudence.
Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, dealing with
a similar situation, a three Judge Bench speaking through V.R. Krishna Iyer, J.
at this stage we may remind ourselves of a necessary social perspective in
criminal cases which suffers from insufficient forensic appreciation. The
dangers of exaggerated devotion to the rule of benefit of doubt at the expense
of social defence and to the soothing sentiment that all acquittals are always
good regardless of justice to the victim and the community, demand especial
emphasis in the contemporary context of escalating crime and escape. The
judicial instrument has a public accountability. The cherished principles or
golden thread of proof beyond reasonable doubt which runs thro the web of
our law should not be stretched morbidly to embrace every hunch, hesitancy and
degree of doubt. The excessive solicitude reflected in the attitude that a
thousand guilty men may go but one innocent martyr shall not suffer is a false
dilemma. Only reasonable doubts belong to the accused.
any practical system of justice will then break down and lose credibility with
the community. The evil of acquitting a guilty person light-heartedly as a
learned author has sapiently observed, goes much beyond the simple fact that
just one guilty person has gone unpunished. If unmerited acquittals become
general, they tend to lead to a cynical disregard of the law, and this in turn
leads to a public demand for harsher legal presumptions against indicated
'persons' and more severe punishment of those who are found guilty. Thus too
frequent acquittals of the guilty may lead to a ferocious penal law, eventually
eroding the judicial protection of the guiltless. For all these reasons it is
true to say, with Viscount Simon, that "a miscarriage of justice may arise
from the acquittal of the guilty no less than from the conviction of the
innocent." In short, our jurisprudential enthusiasm far presumed innocence
must be moderated by the pragmatic need to make criminal justice potent and
realistic. A balance has to be struck between chasing enhance possibilities as
good enough to set the delinquent free and chopping the logic of preponderant
probability to punish marginal innocents. (emphasis supplied)
Recently, in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : JT (2007) 3
SC 316, after considering the relevant provisions of the old Code (Code of
Criminal Procedure, 1898) and the present Code (Code of Criminal Procedure,
1973) and referring to decisions of the Privy Council and of this Court, one of
us (C.K. Thakker, J.) laid down certain general principles regarding powers of
Appellate Court in dealing with appeal against an order of acquittal. In para
42 it was observed:
From the above decisions, in our considered view, the following general
principles regarding powers of appellate Court while dealing with an appeal
against an order of acquittal emerge;
appellate Court has full power to review, reappreciate and reconsider the
evidence upon which the order of acquittal is founded;
The Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate Court on the evidence
before it may reach its own conclusion, both on questions of fact and of law;
Various expressions, such as, substantial and compelling reasons,
good and sufficient grounds, very strong circumstances,
distorted conclusions, glaring mistakes, etc. are not
intended to curtail extensive powers of an appellate Court in an appeal against
acquittal. Such phraseologies are more in the nature of flourishes of
language to emphasize the reluctance of an appellate Court to interfere
with acquittal than to curtail the power of the Court to review the evidence
and to come to its own conclusion.
appellate Court, however, must bear in mind that in case of acquittal, there is
double presumption in favour of the accused.
the presumption of innocence available to him under the fundamental principle
of criminal jurisprudence that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
two reasonable conclusions are possible on the basis of the evidence on record,
the appellate court should not disturb the finding of acquittal recorded by the
the case on hand, as observed earlier, both the Courts below recorded a
positive finding that the accused accepted an amount of Rs.200/-. In our
opinion, therefore, Section 4 of the Act got attracted and presumption came
into play against the accused. There was no rebuttal by the accused by leading
any evidence whatsoever. The defence was of total denial and of false
implication. Hence, the doctrine of preponderance of probability also
had no application. The Trial Court was, therefore, wrong in not invoking
Section 4 and raising presumption. The Trial Court was also wrong in discarding
the evidence of PW 1-Anup Kumar- Complainant and PW 10-S.K. Tiwari-Inspector
observing that they were interested witnesses and their testimony
could not be relied upon. If it is so, in our judgment, the High Court was
justified in setting aside the order of acquittal and in convicting the accused
for the offences with which he was charged.
appreciate the anxiety of the learned counsel for the appellant that if the
conviction of the deceased is upheld by this Court, the deceased may not be
held entitled to pensionary and other benefits. We are, however, helpless. Once
we are satisfied that the acquittal recorded by the Trial Court was not in
consonance with law and the High Court was right in setting aside it and in
convicting the accused, it is a mere consequence which cannot be helped.
The argument of sympathy, therefore, does not impress us and cannot
carry the case of the appellant-applicant herein further.
For the foregoing reasons, the appeal deserves to be dismissed and is