9911796707
TMI Blog2022 (12) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... 67(2), Section 78. Proof of documents, whether public or private, including execution of such documents etc. Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression shall be presumed in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the Section is satisfied. The only condition for drawing a legal presumption under Section 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. In STATE OF MADRAS VERSUS A. VAIDYANATHA IYER [ 1957 (9) TMI 63 - SUPREME COURT] , it was observed that the presumption under Section 4(1) of the 1947 Act wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le owing to his death or any other reason. The position of law when a complainant or prosecution witness turns hostile is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases. The question referred for consideration of this Constitution Bench is answered as:- In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution. - Criminal Appeal Nos. 678 of 2021, 1490 of 2021, 1592 of 2022 S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, B.V. Nagarathna, JJ. For the Appellant : Mr. S. Nagamuthu, Sr. Adv., Mr. Satinder S. Gulati, Adv., Mr. Raj Kishor Choudhary, AOR, Mr. S. Nagamuthu, Sr. Adv., Mr. A.S. Vairawan, Adv., Mr. R. Sudhakaran, Adv., Mr. G.R. Vikash, Adv., Mr. D. Subrahmanya Bhanu, Adv., Mr. Rohan Singh, Adv., Ms. Shalini Mishra, Adv., Mr. Kamal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar, Adv., Mr. Digvijay Dam, Adv., Ms. Indira Bhakar, Adv., Mr. Manvendra Singh, Adv., Mr. Abhijeet Singh, Adv., Ms. Poornima Singh, Adv., Ms. B.L.N. Shivani, Adv., Mr. Aman Sharma, Adv., Mr. Kartik Jasra, Adv., Mr. Randeep Sachdeva, Adv., Ms. Shreya Jain, Adv., Mr. Harish Nadda, Adv., Mr. Shivam Jasra, Adv., Mr. Gurmeet Singh Makker, AOR, Mr. Basava Prabhu S. Patil, Sr. Adv., Mr. Geet Ahuja, Adv., Mr. Samarth Kashyap, Adv., Mr. Anirudh Sanganeria, AOR, Mr. Ardhendumauli Kumar Prasad, Addl.A.G., Mr. Ajay Pal, AOR, Mr. Harsh Parashar, AOR, Mr. Nishe Rajen Shonker, AOR, Ms. Anu K. Joy, Adv., Mr. Alim Anvar, Adv., Mr. Abraham C. Mathews, Adv., Mr. Shubhranshu Padhi, AOR, Dr. Joseph Aristotle S., AOR, Ms. Nupur Sharma, Adv., Mr. Shobhit Bhardwaj, Adv., Mr. Sanjeev Kr. Mahara, Adv., Ms. Vaidehi Rastogi, Adv., Mr. Saurabh Mishra, AAG, Mr. Abhinav Shrivastava, Adv., Mr. Sunny Choudhary, AOR, Mr. Sandeep Sharma, Adv., Mr. Shivang Rawat, Adv., Ms. Radhika Jalan, Adv., Mr. Prakash Kumar, Adv., Mr. Mahfooz A. Naski, AOR, Mr. Polanki Gowtham, Adv., Mr. Shaik Mohamad Haneef, Adv., Mr. T. Vijaya Bhaskar Reddy, Adv., Mr. K.V. Girish Chowdary, Adv., Ms. Rajeswari Mukherjee, Adv., Mr. Naveen Sharma( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and Another, (2015) 10 SCC 152, are in conflict with an earlier three-judge bench decision of this Court in M. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691, regarding the nature and quality of proof necessary to sustain a conviction for the offences under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 when the primary evidence of the complainant is unavailable. 6. We therefore consider it appropriate to refer the question of law framed to be decided by a bench of appropriate strength. The Registry is directed to place the papers before the Chief Justice of India for appropriate orders. 2. Thus, the moot question that arises for answering the reference is, in the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence. This is because in the absence of proof of demand, a legal presumption under Section 20 of the Prevention of Corruption Act, 1988 (for short the Act ) would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence defined in this section. (b) Gratification . The word gratification is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) Legal remuneration . The words legal remuneration are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) A motive or reward for doing . A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section. xxx xxx xxx Section 13 Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct, - a) .. b) . c) . (d) if he, (i) by corrupt or illegal means, obtains for himself or for any other person a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public servant or expecting to be a public servant; ii) he should accept or obtain or agrees to accept or attempts to obtain from any person; iii) for himself or for any other person; iv) any gratification other than legal remuneration; v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour. 5. Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant, namely, - (i) the accused must be a public servant; (ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. iii) to make out an offence under Section 13(1)(d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward. iv) an agreement to accept or an attempt to obtain does not fall within Section 13(1)(d). vi) mere acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was for illegal purpose. While discussing the expression accept , it was observed that accept means to take or receive with a consenting mind . Consent can be established not only by leading evidence of prior agreement but also from the circumstances surrounding the transaction itself without proof of such prior agreement. If an acquaintance of a public servant in expectation and with the hope that in future, if need be, would be able to get some official favour from him, voluntarily offers any gratification and if the public servant willingly takes or receives such gratification it would certainly amount to acceptance . Therefore, it cannot be said, as an abstract proposition of law, that without a prior demand, there cannot be acceptance . The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the 1947 Act is concerned. Under the said Section, the prosecution has to prove that the accused obtained the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the 1947 Act as it is ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant did not support the case of the prosecution insofar as demand made by the accused for the bribe is concerned and the prosecution did not examine any other witness present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant had disowned what he had stated in the initial complaint and in the absence of any other evidence to prove that the accused had made any demand, the evidence of the complainant therein and the complaint (Exh. P-11) could not be relied upon to come to the conclusion that the above material furnished proof of the demand allegedly made by the accused. The only other material available was the recovery of the tainted currency notes from the possession of the accused therein. It was observed that mere possession and recovery of the currency notes from the accused without proof of demand would not bring home the offence under Section 7. Therefore, the use of illegal means or abuse of position by a public servant to obtain any valuable thing or pecuniary advantage was not held to be established insofar as the offence under Sections 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the legal principle discussed, left no doubt that the prosecution in the said case had failed to prove unequivocally the demand of illegal gratification and thus, the prosecution and the conviction of the appellant under Section 13(1)(d)(i) and (ii) read with section 13(2) of the Act was not sustainable. (iv) In P. Satyanarayana Murthy, reference was made to two cases, namely, A. Subair vs. State of Kerala (2009) 6 SCC 587 ( A. Subair ) and State of Kerala vs. C.P. Rao (2011) 6 SCC 450 ( C.P. Rao ). In the first of the aforesaid two cases, it was observed that the prosecution has to prove the charge under Sections 7 and 13(1)(d) of the Act like in any criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification which are vital ingredients necessary to be proved to record a conviction. In C.P. Rao, which is the second of the two cases referred to in P. Satyanarayana Murthy, it was observed by this Court that mere recovery by itself would not prove the charge against the accused. In the absence of any evidence to prove the payment of bribe or to show that the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption is an inference of a certain fact drawn from other proved facts. The Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. A presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in the law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts, the court can draw an inference and that would remain until such inference is either disproved or dispelled. It was held that, for the purpose of reaching one conclusion, the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. However, this Court sounded a note of caution by stating that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. Reliance was placed on Suresh Budharmal Kalani vs. State of Maharashtra (1998) 7 SCC 337 ( Suresh Budharmal Kalani ), wherein it was observed that a presumption can be drawn only from facts by a proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant therein had accepted gratification. Therefore, the Court was under a legal compulsion to draw the legal presumption that such gratification was accepted as a reward for doing the public duty. It was further observed that the two witnesses examined on the defence side were unable to rebut the presumptions raised and hence, this Court dismissed the appeal and held the accused to be guilty. 11. Another judgment referred to in the Reference Order which is a case which arises under the 1947 Act is Kishan Chand Mangal vs. State of Rajasthan (1982) 3 SCC 466 ( Kishan Chand Mangal ). In the said case, it was observed that it was a case of entrapment where the complainant had given a bribe and the demand of the said bribe was also present. It was observed that the evidence on record, for instance, the complainant s visit to the Anti-Corruption Bureau, his producing currency notes and the superior officer of the department making a trap arrangement, and the raiding party going to the house of the accused indicated that a prior demand for payment was made by the accused and the same was circumstantial evidence. 12. In the aforesaid cases, the common thread which runs through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to accept or attempt to obtain . (ii) In the context of Section 20 of the Act which deals with raising the legal presumption with regard to motive or reward, elaborate arguments were made on the difference between acceptance or obtainment. It was submitted that, in both cases, there is an offer and acceptance of the offer. If the offer emanates from the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In the case of acceptance, as dealt with in Section 7 of the Act, there need not be any prior demand by the public servant. (iii) On the other hand, in the case of obtainment the offer emanates from the public servant, i.e., he makes a demand and the bribe giver accepts the offer and pays the demanded gratification which is, in turn, received by the public servant. Thus in the case of obtainment, there is a prior demand for illegal gratification made by the public servant and in such a case also, both the demand and receipt of illegal gratification have to be proved. This act of a public servant is an offence under Section 13(1)(d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The presumption in relation to any illegal gratification accepted or obtained or agreed to be accepted or deemed to be obtained as motive or reward , as per Section 7 of the Act, is a restricted and conditional presumption. The said presumption can be raised only on a proof of acceptance or obtainment or agreement to accept or attempt to obtain the illegal gratification and is not a presumption of guilt of an offence. (viii) That the legal presumption that could be raised under Section 20 of the Act is in contradiction to a presumption that could be raised under Section 114 of the Evidence Act. By citing an example, it was sought to be contended that, if tainted currency notes are found in the possession of a public servant in a trap case, there can be a presumption under Section 114 of the Act that he might have received it. But this is a rebuttable presumption and the accused can rebut this presumption by offering his explanation for the possession of the tainted notes. The said presumption is a presumption of fact. However, there can be no presumption of demand as such. In other words, the demand as a matter of fact cannot be presumed under Section 114 of the Evidence Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused, namely, that the public servant knew that he had received illegal gratification as a motive or reward . Since, this fact is difficult to be proved by direct oral evidence or documentary evidence, the Parliament in its wisdom has incorporated Section 20 of the Act with a mandate to the Court to presume the illegal gratification as only a motive or reward . Of course, such legal presumption is also rebuttable. (xii) Coming to the actual question raised before the Constitution Bench, it was submitted by the learned senior counsel Shri Nagamuthu that the act of obtainment contains two facets, namely, prior demand and receipt of illegal gratification by the public servant and both these facts should be proved beyond reasonable doubt. The fact of demand could be proved by oral evidence. However, in the absence of complainant s evidence to prove obtainment or an attempt to obtain, the presumption under Section 20 cannot arise. Further, if such obtainment or attempt was witnessed by some other witness, then that witness can prove the said fact even in the absence of the bribe giver being available to be let in as evidence. (xiii) On the other hand, in the case of acceptance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple, there should be proof beyond reasonable doubt and the said principle would apply under the Act under consideration. That there cannot be any inference of guilt and that only presumptions could be raised, as per Section 4 of the Evidence Act, based on the foundational facts being proved beyond reasonable doubt and in the absence of rebuttal evidence. In view of the aforesaid submissions, Shri Nagamuthu submitted that the question raised for consideration must be answered in the negative. 15. Shri M. Karpaga Vinayagam, learned senior counsel submitted that the proof of demand of public servant alleged by the prosecution is a sine qua non in order to establish the guilt of the accused public servant. That mere acceptance of or the recovery of tainted notes is not sufficient to bring home the guilt of the accused as the prosecution has to first prove that demand of illegal gratification was made by the accused. Thereafter, the subsequent acceptance and recovery of the tainted notes would complete the chain of circumstances to bring home the guilt of the accused. In this regard, learned senior counsel placed reliance on State of U.P. vs. Ram Asrey 1990 Supp SCC 12 ( Ram Asrey ); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in B. Jayaraj the prosecution was unsuccessful in proving so. Therefore, there is no conflict between the judgment in M. Narasinga Rao on the one hand and B. Jayaraj and P. Satyanarayana Murthy on the other. 20. That the presumption under Section 20 of the Act would apply only if the fact of demand and acceptance or of illegal gratification, as the case may be, is proved. Such a proof can be adduced even by way of circumstantial evidence in the absence of direct evidence. This would be so particularly in trap cases as the prosecution has to prove that the accused had demanded a bribe from the complainant. The factum of demand can be either proved by direct evidence or through circumstantial evidence. 21. Shri Sushil Kumar Jain, learned senior counsel also submitted that the demand of a valuable thing or pecuniary advantage either for himself or for some other person is a necessary ingredient or a sine qua non to bring home a conviction under Sections 7 and 13(1)(d). The demand can be proved either by direct oral evidence or documentary evidence. That the presumption under Section 20 is applicable only in respect of offences under Sections 7, 11 and Section 13(1)(a) and (b) since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the complainant turns hostile with regard to certain aspects of the evidence referred by him, his entire evidence cannot be discarded. 24. Learned ASG submitted that the judgments of this Court in B. Jayaraj and P. Satyanarayana Murthy have been correctly decided and the questions raised may accordingly be answered. 25. Learned ASG Shri J.K. Sud submitted that the issue before the Constitution Bench pertains to the proof of guilt of a public servant under Sections 7, 13(1)(d) read with Section 13(2) of the Act in a case where the complainant s evidence is unavailable. He submitted that proof does not mean proof in the sense of a rigid and mathematical demonstration, as that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion. In reaching the conclusion, the court can use the process of inferences to be drawn from the facts produced or proved and such inferences are akin to presumptions in law. That a presumption of fact can be made by a court of law by exercise of discretion, having regard to the common course of natural events, human conduct, public or private business in relation to the facts of the particular case. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant. The quality of the evidence let in by the prosecution is more significant than the sole direct evidence of demand being spoken to. In the case of a trap, the court has to consider the ingredients of the factum of offences namely, acceptance of demand and recovery of tainted money in its entirety. Hence, the case of the prosecution does not come to an end with the death of the complainant, as even in the absence of a complainant, it is possible to prove the factum of demand and recovery of tainted money by an independent witness whose evidence can be the basis for passing an order of conviction. Question for consideration: 28. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under: 1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution? In order to answer the aforesaid question, it would be useful to recapitul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions put forth by the Magistrate or Judge under Section 313 of the Criminal Procedure Code (CrPC). 33. Further, according to Sarkar on Law of Evidence, 20th Edition, Volume 1, direct or original evidence means that evidence which establishes the existence of a thing or fact either by actual production or by testimony or demonstrable declaration of someone who has himself perceived it, and believed that it established a fact in issue. Direct evidence proves the existence of a fact in issue without any inference of presumption. On the other hand, indirect evidence or substantial evidence gives rise to the logical inference that such a fact exists, either conclusively or presumptively. The effect of substantial evidence under consideration must be such as not to admit more than one solution and must be inconsistent with any explanation that the fact is not proved. By direct or presumptive evidence (circumstantial evidence), one may say that other facts are proved from which, existence of a given fact may be logically inferred. 34. Again, oral evidence can be classified as original and hearsay evidence. Original evidence is that which a witness reports himself to have seen or heard thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliable witness, the uncorroborated evidence of a wholly unreliable testimony of a witness must result in an acquittal. 39. Section 60 of the Evidence Act requires that oral evidence must be direct or positive. Direct evidence is when it goes straight to establish the main fact in issue. The word direct is used in juxtaposition to derivative or hearsay evidence where a witness gives evidence that he received information from some other person. If that person does not, himself, state such information, such evidence would be inadmissible being hearsay evidence. On the other hand, forensic procedure as circumstantial or inferential evidence or presumptive evidence (Section 3) is indirect evidence. It means proof of other facts from which the existence of the fact in issue may be logically inferred. In this context, the expression circumstantial evidence is used in a loose sense as, sometimes, circumstantial evidence may also be direct. 40. Although the expression hearsay evidence is not defined under the Evidence Act, it is, nevertheless, in constant use in the courts. However, hearsay evidence is inadmissible to prove a fact which is deposed to on hearsay, but it does not necessaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would exclude secondary evidence. Section 63 of the Evidence Act deals with secondary evidence and defines what it means and includes. Section 63 mentions five kinds of secondary evidence, namely, - (i) Certified copies given under the provisions hereinafter contained; (ii) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (iii) Copies made from or compared with the original; (iv) Counterparts of documents as against the parties who did not execute them; (v) Oral accounts of the contents of a document given by some person who has himself seen it. 44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence. Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 138 of the Negotiable Instruments Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted vide Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513 ( Kumar Exports ). Further, the question as to whether the presumption stood rebutted or not must, therefore, be determined keeping in view the other evidence on record. [ Krishna Janardhan Bhat vs. Dattatraya G Hegde (2008) 4 SCC 54 ( Krishna Janardhan Bhat )]. 48. Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression shall be presumed in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the Section is satisfied. The only condition for drawing a legal presumption under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless the contrary is proved which occur in this provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material brought before it, the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. 51. One of the modes through which a fact can be proved. But, that is not the only mode envisaged under the Evidence Act. Proof of the fact depends upon the degree of probability of it having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. 52. As opposed to the expressions m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of guilt can be drawn only when all incriminating facts and circumstances are found to be incompatible with the innocence of an accused. In other words, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that, taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. 55. It is trite law that in cases dependent on circumstantial evidence, the inference of guilt can be made if all the incriminating facts and circumstances are incompatible with the innocence of the accused or any other reasonable hypotheses than that of his guilt, and provide a cogent and complete chain of events which leave no reasonable doubt in the judicial mind. When an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. If the combined effect of all the proven facts taken together is conclusive in establishing the guilt of the accused, a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a question of fact. If, therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established. The court also made observations regarding framing of charge in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. It was also held that proof of demand is an indispensable mandate for the offence under Sections 7 and 13 of the Act. On the facts of the said case, it was held that the same was absent and the accused was liable to be acquitted. 59. In all the cases leading to the reference, it is either the death or the refusal to support the prosecution case that has led to the legal presumption under Section 20 of the Act not being raised and not bringing home the guilt of the accused. 60. Learned ASG and counsel also drew our attention to the following precedents: (i) In the case of State of Andhra Pradesh vs. V. Vasudeva Rao (2004) 9 SCC 319 ( V. Vasudeva Rao ), this Court, in the absence of the complainant due to his death proceeded to convict the accused based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quittal was based not merely on the nonavailability of the complainant but the fact that there was previous animosity between the complainant and the accused and also on the ground that money was thrust into the hands of the accused. Similarly, in N. Sunkanna, the accused was acquitted on the ground that the witness had turned hostile and the demand was not proved. So also, in the case of M.R. Purushotam. 62. Learned counsel Shri Aristotle also made reference to C.M. Sharma wherein the conviction was upheld even though the shadow witness was not present when the demand for illegal gratification was made and the amount was paid and there was recovery of tainted money. So also, in Prakash Chand vs. State (Delhi Admn.) (1979) 3 SCC 90 ( Prakash Chand ) when the shadow witness turned hostile , the conviction was based on the evidence of other witnesses. Therefore, even in the absence of a complainant letting in his evidence or the complainant turning hostile , the case of the prosecution would not collapse and the prosecution can only prove the case beyond reasonable doubt if there is other evidence to prove the case. 63. Before answering the question under reference, we deem it necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. It was observed in paragraph 33 that the rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms hostile witness and unfavourable witness and by attempting to draw a distinction between the two categories. A hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him, and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact. In the context of Sections 142 and 154 of the Evidence Act, this Court observed in paragraphs 38 and 52 as under: 38. To steer clear of the controversy over the meaning of the terms hostile witness, adverse witness, unfavourable witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Judge should, as a matter of prudence, discard his evidence in toto. 67. Therefore, this Court cautioned that even if a witness is treated as hostile and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared hostile does not result in an automatic rejection of his evidence. Even, the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a hostile witness testimony if corroborated by other reliable evidence. 68. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns hostile , or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
