2000 Supreme(SC) 793

2000(3) Supreme 334
SUPREME COURT OF INDIA
(From Bombay High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & Doraiswamy Raju, JJ.
Smt. Meena w/o Balwant Hemke -Appellant
versus
The State of Maharashtra -Respondent
Criminal Appeal No. 449 of 1995
Decided on 17-4-2000
Counsel for the Parties :
For the Appellant : U.N. Bachawat, Sr. Advocate, R.B. Masodkar, K.L. Taneja, Alok Bachawat, Advocates.
For the Respondent : A.S. Bhasme, V.B. Joshi, S.V. Deshpande, Advocates.

IMPORTANT POINTS
1. Mere recovery of currency note from table pad of accused itself could not be ground to hold that accused tacitly accepted bribe in absence of examination of important shadow witnesses of trap party.
2. Mere fact that judgments of Court below were rendered concurrently cannot dissuade Supreme Court from interfering where such findings and conviction have been rendered on mere conjecturers and erratic evaluation evidence on record.

Headnote:(i) Prevention of Corruption Act, 1947-Section 5(1)(d) r/w Section 5(2)-Indian Penal Code-Section 161-Acceptance of illegal gratification-Charge that accused demanded and received Rs. 20 for providing copy of land records-Defence that PW 1 tried to thrust currency note in hands of accused and while brushed aside fell on table-Currency note recovered from table pad and not from person or table drawer of accused-Lady constable a shadow witness who claimed to have apprehended accused red handed not examined- Another shadow witness also not examined-PW 1 gave contradictory version in earlier departmental proceedings-Mere recovery of currency note lying on pad on table by itself not sufficient proof of acceptance of bribe-Conviction on basis of perfunctory material and prevaricating type of evidence-Conviction set aside.

       Held : The essential ingredients to be established to indict a person of an offence under Section 5(1)(d) of the Act are that he should have been a public servant; that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and that he should have obtained a valuable thing or pecuniary advantage for himself or any other person. Likewise, Section 161, IPC, requires that the person accepting the gratification should be a public servant; that he should accept the gratification for himself and the gratification should be 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 function, favour or disfavour to any person. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration. (Para 9)

       Neither the quality of the materials produced nor their proper evaluation could, in this case, be held sufficient convince or satisfy the judicial conscience of any adjudicating Authority to record a verdict of guilt, on such slender evidence. Indisputably, the currency note in question was not recovered from the person or from the table drawer, but when the trap party arrived was found only on the pad on the table and seized from that place only. The question is as to whether the appellant accepted it and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive the same by pushing away the hands of PW-1 and the currency, when attempted to be thrust into her hands. PW-2, one of the panch witnesses, who accompanied PW-1, as a shadow witness, when he tried to give the bribe, did not support the prosecution case. He has been treated hostile and his evidence eschewed from consideration by the courts below. The lady Constable, Victoria, another shadow witness, who first arrived on the spot after the signal was given by PW-1, was not examined at the trial. Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. In this case, the role of Victoria was to enter first and hold the hands of the accused immediately after the acceptance of the bribe amount and she was stated to have done that, as planned. For reasons best known, such a vital and important witness has been withheld by the prosecution, from being examined Jagdish Bokade, who scribed the application dated 13.8.1986 for getting copies and who admittedly was all alongwith PW-1 and gave even the idea of lodging a complaint with the Anti-Corruption Bureau, has also been withheld from being examined. The other person, who was present at the place of occurrence though cited initially as witness, was not examined by the prosecution but later was got examined as DW-1 and evidence of this person completely belies the prosecution story. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW-5, categorically admitted that even as the Inspector of Police, PW-6, arrived, the appellant gave the same version that PW-1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. The contradictory version of PW-1 of the very incident when earlier examined in departmental proceedings renders his testimony in this case untrustworthy. PW-3, the Head Copyist, seems to be the brain behind all these and that PW-1 as well as Jagdish Bokade appear to be working as a group in this affair and despite the blunt denial by PW-3, his closeness to PW-1 and Jagdish Bokade stand well substantiated. All these relevant aspects of the case seem to have been completely overlooked by the courts below. (Para 10)

       Mere recovery of the currency note of Rs. 20/- denomination, and that too lying on the pad on the table, by itself cannot be held to be proper of sufficient proof of the acceptance of the bribe, in the peculiar circumstances of this case which lend also credence to the case of the appellant that it fell on the table in the process of the appellant pushing it away with her hands when attempted to be thrust into her hands by PW-1. The results of phenolphthalein test, viewed in the context that the appellant could have also come into contact with the currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that the appellant really accepted the bribe amount. With such perfunctory nature of materials and the prevaricating type of evidence of PW-1 and PW-3, who seem to have strong prejudice against the appellant, it would be not only unsafe but dangerous to rest conviction upon their testimony. PW-1, if really was keen on getting the copy of the record urgently, could have made an urgent application to have them delivered within 3 days instead of making an ordinary application and going on such an errand, which makes it even reasonable to assume that the trio of PW-1, PW-3 and Jagdish Bokade were attempting to weave a web around the appellant to somehow get her into trouble and victimise her. The appellant cannot be, on the basis of available evidence, held to have tacitly accepted the illegal gratification as alleged. The materials on record in this case are not sufficient to bring home the guilt of the appellant. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine, if any, paid shall be refunded to the appellant. (Paras 11 and 12)

       (ii) Criminal Appeal-Appeal against conviction-Concurrent findings and conviction recorded by lower Courts against accused-Cannot dissuade Supreme Court from interfering with where such finding suffer from serious infirmities and manifest error.

       The fact that the judgments of the courts below were rendered concurrently cannot dissuade us from interfering in a case like this where such findings and conviction have been recorded on mere conjectures and erratic evaluation of the evidence on record. Consistency for the mere sake of it is no virtue. It is an obligation of judicial conscience to correct errors, where the same are manifest. The judgments of the courts below suffer from serious infirmities and manifest errors on account of unwarranted inferences liberally drawn by the courts below against the appellant, overlooking the fundamental principle of presumption of innocence of an accused till the charge levelled and his guilt is established beyond all reasonable doubt. (Para 12)