IMPORTANT POINT
(1) When the appellate court fails to scrutinize and assess the evidence on the record and in order is not based on the submissions of the parries and the evidence on the record then the case will be re-examined on merits by the Superior Court.
(2) Police officers witnesses of raids carried out under Section 161, Indian Penal Code or the Prevention of Corruption Act 1947 cannot be considered partisan witnesses. Therefore in certain circumstances conviction of The accused can be ordered Oil The basis of complainants and police Officers testimony alone.

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 her 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 PW 3 Babu Lal. 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 PW 3, as alleged by the prosecution. According to him he had ban 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 conjectures 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 tile 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, bad 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 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 PW 3, Babu Lal, a worker employed in a parachute factory as a packer, was suffering from bone in and was admitted to the UMH Hospital on IXth February, 1976. She was referred to the Orthopaedic section on 19th February, 1976. She was placed under the treatment or-respondent Dr. Ghosh. After about six or seven days the respondent asked PW 3 to remove the patient from the hospital saying that she was cared. PW 3 objected saying that the condition of his child had not improved. The respondent asked PW 3 to see him at his re