JUDGMENT

THAKKAR, J.:— A doctor in a Government Hospital was found guilty of demanding and accepting illegal gratification from the father of a patient under his treatment at the Hospital and was convicted for an offence under Section 5 (1) (d) of Prevention of Corruption Act, 1947, and for an offence under Section 161 of Indian Penal Code by the Special Judge, Kanpur. The appeal preferred by the convict, Dr. Ghosh was allowed, and the order of conviction and sentence was set aside by the High Court. The State has called into question the said order of acquittal rendered by the High Court in this appeal by special leave.

2. The High Court allowed the appeal on forming the opinion that Dr. Ghosh (the respondent herein) might have demanded and accepted the amount as and by way of his professional fees inasmuch as a Government doctor was permitted to have private practice of his own as per the relevant rules, though such was not his defence at any stage.

3. Having regard to the facts and circumstances of the case, even the learned counsel for the respondent is unable to support the reasoning which found favour with the High Court. The respondent accused had not offered any such explanation in his statement recorded under Section 313 of the Code of Criminal Procedure. In fact the defence of the respondent before the Sessions Court was that he had never accepted any such amount from P. W. 3 Babulal. It was his case that the story regarding passing of the currency notes was concocted and that he had not accepted any currency notes from P. W. 3, as alleged by the prosecution. According to him he had been framed. What is more, it is obvious that if the respondent had accepted monetary consideration in respect of a patient being treated at the Government hospital, it could scarcely have been contended that it was a part of permissible private practice and not illegal gratification. The High Court resorted to surmises and conjecture, for which there was not the slightest basis, apart from the fact that no such defence was taken and no such plea was ever advanced by the respondent accused. Under the circumstances the decision of the High Court cannot be sustained on the basis of the reasoning which found favour with it. The finding of guilt, recorded by the Sessions Court, will therefore have to be examined afresh on merits, since the High Court has altogether failed to undertake the exercise of scrutinizing, and making assessment of the evidence. If only the High Court had performed this function, as usual, and had recorded its finding in regard to the question of reliability and credibility of witnesses, and, after weighing the probabilities, and taking into account the circumstantial evidence, had recorded a finding of fact, as it was expected to do, we would not have been obliged to undertake this function which properly falls within the sphere of the High Court in its capacity as the Appellate Court. As it is, in the peculiar facts and circumstances of the case, we have no option but to do so here.

4. The prosecution case broadly stated is as under.

5. Respondent was an Orthopaedic Surgeon in the UHM Hospital at Kanpur. He was incharge of the Orthopaedic Department. In his capacity as a Government Medical Officer he was allotted an official residence within the campus of the Hospital. As per the then prevailing rules he was permitted consultation practice at his residence in the evening. One Kumari Ramsri, 13 years old daughter of P. W. 3, Babulal, a worker employed in a parachute factory as a packer was suffering from bone T. B. and was admitted to the UMH(?) Hospital on l8th February 1976. She was referred to the Orthopaedic section on l9th February l976. She was placed under the treatment of respondent Dr. Ghosh. After about six or seven days the respondent asked P. W. 3 to remove the patient from the hospital saying that she was cured. P. W. 3 objected saying that the condition of his child had not improved. The respondent asked P