Back
2010 (2) Supreme 760
SUPREME COURT OF INDIA
Aftab Alam and Swatanter Kumar ,JJ.
Banarsi Dass — Appellant
vs.
State of Haryana — Respondent
Criminal Appeal No. 630 of 2003
Decided on : 05-04-2010
Indian Penal Code,1860-Section 161-Scope and ambit of-To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by accused- Similarly, in terms of Section 5 (1) (d) of the Prevention of Corruption Act, 1947 the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused (Para 11)
Facts of the Case :
Present Appeal has been filed against final judgment and order of Single Judge of High Court whereby appellant was convicted and sentenced for demanding and accepting illegal gratification for changing Khasra Girdawaris in the name of mother of PW-2 complainant.
Findings of the Court :
Besides, part of her statement, PW-2 complainant also stated that she had never made statement Ex. PW-3/A before the police. Even on the memos which had been signed by her she stated that she had signed them without reading same. PW-2was educated up to 4th Class only. In her cross-examination she did support a few facts of the prosecution but on the material circumstance/fact she completely took a somersault while making a statement before the Court. Pw4, besides disowning his statement under Section 161 of the IPC in its entirety, stated that he was not present either when the bribe was demanded or when the same was accepted. Accused, when was put to incriminating evidence against him in terms of Section 313 of Cr.P.C., did admit that PW-2 complainant had come to office of Patwar-khana with the police but stated that no other persons had accompanied them. Appellants case that PW-2 insisted on changing Khasra Girdawaris and after she got annoyed, she got him falsely implicated. Money alleged to have been recovered from him, in fact, was lying on the table without his knowledge or demand. PW-2 had also stated in her statement that she kept money on the table after some altercation with the accused.In these circumstances, it was difficult for the Court to hold that the prosecution had established the offence against accused, that he accepted the money voluntarily as illegal gratification. The effect of the statement of PW-2 and PW-4 has a substantial adverse effect on the case of prosecution- There were other witnesses examined by prosecution which were formal witnesses and in the absence of support of PW-2 and PW-4, prosecution had not been able to establish charge (demand and acceptance of illegal gratification by the accused), thus entitling him to some benefit on the technical ground of two witnesses i.e. PW-2 and PW-4, turning hostile. In light of the statement of two hostile witnesses PW-2 and PW-4, demand and the acceptance of illegal gratification alleged to have been received by the accused for favouring PW-2 by recording the Khasra Girdawaris in the name of her mother could not be said to have been proved by prosecution in accordance with law. Impugned judgment of High Court convicting the accused for offences with which the accused was charged could not be sustained in law. Appeal was allowed.
JUDGMENT
Swatanter Kumar, J.
1. The present appeal under Article 136 of the Constitution of India is directed against the final judgment and order of conviction dated 20.11.2002 passed by the learned Single Judge of the High Court of Punjab & Haryana at Chandigarh. Learned counsel appearing for the appellant has raised challenge to the impugned judgment, inter alia, but primarily on the following grounds:
(a) There is no evidence to prove demand and voluntary acceptance of the alleged bribe so as to attract the offence under Section 5(2) of the Prevention of Cor- ruption Act, 1947 (For short, ‘the Act’). Reliance has been placed by the judgment of this Court in the case of C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala,1 [2009 (3) SCC 779].
(b) The High Court as well as the trial Court have passed an order of conviction despite the fact that there was serious contradiction between the statements of the prosecution witnesses. And in fact, there was no cogent and reliable evidence to support the charge against the appellant. Even the recovery has not been proved in accordance with law. These fac- tors clearly justify the benefit of doubt in favour of the appellant and thus entitling the accused of judgment of acquittal.
(c) The punishment awarded to the appellant is unreason- ably excessive. The appellant has faced the agony of trial and thereafter other proceedings arising therefrom for the last 20 years. In these circum- stances, the appellant has even faced great hardship having lost his livelihood which adversely affected the future of his family members. While relying upon the judgment of this Court in the case of Aditya Nath Pandey v. State of U.P.2 [2000 (9) SCC 206], it is contended that the sentence undergone would suf- fice and meet the ends of justice. Of course, this argument has been advanced without prejudice to the above contentions.
2. On behalf of the State, it has been argued that the judgment of conviction and sentence is duly supported by the oral and documentary evidence produced by the prosecution. The prosecution has been able to bring home the charge against the accused. The ingredients of Section 5(2) of the Act as well as Section 161 of the Indian Penal Code (for short, ‘the IPC‘) are duly satisfied. The appellant being a public servant has not to indulge in demanding bribe. Thus, no leniency is called for in favour of the accused. In order to examine the merit or otherwise the contentions raised, it is important for us to refer to the basic facts as emerged from the records, giving rise to the present appeal.
3. The appellant was newly posted as patwari in Village Piruwala. One Pritam Kaur had agricultural land at Village Piruwala. Her daughter, namely, Sat Pal Kaur was informed during 1986 that Khasra Girdawaris of Pritam Kaur’s land had been recorded in the name of Jit Singh and others as tenants by the previous Patwari. Smt. Sat Pal Kaur took up the matter with those tenants who admitted that the Khasra Girdawaris has been wrongly recorded by the Ex-Patwari in their favour. She also obtained no-objection on the application moved by her mother which was submitted to the Tehsildar Chachhrauli. The application was moved for the purposes of incorporating the necessary changes at the time of the next Khasra Girdawaris in the coming season. Smt. Sat Pal Kaur contacted the village Patwari (appellant herein) in the Kharif season for recording Khasra Girdawaris in favour of her mother during the period of October, 1986. It is further the case of the prosecution that the appellant demanded illegal gratification of Rs. 900/- (rupees nine hundred) but that deal was struck at Rs. 400/- (rupees four hundred) for making the requisite changes, in the presence of Gurmej Singh, a taxi driver, whose taxi had been engaged by Sat Pal Kaur while visiting the appellant. Sat Pal Kaur contacted Shri Hari Singh, Deputy Superintendent of Police, Jagadhri at Bilaspur where Shri S.K. Joshi, Sub- Divisional Executive Magistr
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
