2022 Supreme(SC) 1248

SUPREME COURT OF INDIA
S. ABDUL NAZEER, B.R. GAVAI, A.S. BOPANNA, V. RAMASUBRAMANIAN, B.V. NAGARATHNA, JJ.
Neeraj Dutta – Appellant
Versus
State (Govt. of N.C.T. of Delhi) – Respondent
Criminal Appeal Nos. 1669 of 2009, 1779, 2136 of 2010, 678, 1490 of 2021, 1592 of 2022, SLP (Crl.) Nos. 11339 of 2019, 3828, 6279, 6497 of 2020, 5905 of 2021, 294 of 2022, Diary No. 27232 of 2019
Decided On : 15-12-2022

IMPORTANT POINTS
(1) Illegal gratification – In absence of evidence of complainant (direct/primary, oral/documentary evidence) it is permissible to draw 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 prosecution.
(2) Proof of facts in issue could be oral and documentary evidence – When a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
(3) There is no legal bar to raise conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.

Headnote:

(A) Prevention of Corruption Act, 1988 – Sections 7 and 13(1) (d) read with Sections 13(2) and 20 – Illegal gratification – Proof of demand and acceptance – In absence of evidence of complainant (direct/primary, oral/documentary evidence) it is permissible to draw 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 prosecution – Proof of demand is a sine qua non for an offence to be established under Sections 7, 13(1)(d)(i) and (ii) of Act and de hors proof of demand offence under two sections cannot be brought home – Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof in absence of proof of demand would not be sufficient to bring home charge under Sections 7, 13(1)(d)(i) and (ii) of Act – There must be evidence on record that accused “obtains” for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or that he obtained for any person any valuable thing or pecuniary advantage without any public interest – Statutory presumption under Section 20 of Act is available for offence punishable under Sections 7 or 11 or clauses (a) and (b) of sub-section (1) of section 13 and not for clause (d) of sub-section (1) of Section 13. (Paras 68 and 70)

(B) Indian Evidence Act, 1872 – Sections 8, 14, 59 and 65 – Principle of res gestae – Evidence is upon facts pleaded in a case and principal facts are sometimes facts in issue – Facts relevant to issue are evidentiary facts which render probable existence or non-existence of a fact in issue or some relevant fact – In criminal cases, facts in issue are constituted in charge, or acquisition, in cases of warrant or summon cases – Proof of facts in issue could be oral and documentary evidence – When a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence – What is to be produced is primary evidence i.e., document itself – It is only when absence of primary source has been satisfactorily explained that secondary evidence is permissible to prove contents of documents – Secondary evidence should not be accepted without a sufficient reason being given for non-production of original. (Paras 31, 32 and 42)

(C) Criminal Law – Circumstantial evidence – In cases dependent on circumstantial evidence, inference of guilt can be made if all incriminating facts and circumstances are incompatible with innocence of 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 judicial mind – When an incriminating circumstance is put to accused and said accused either offers no explanation or offers an explanation which is found to be untrue, then same becomes an additional link in chain of circumstances to make it complete – If combined effect of all proven facts taken together is conclusive in establishing guilt of accused, conviction would be justified even though any one or more of those facts by itself is not decisive – Even in absence of a complainant letting in his evidence or complainant turning “hostile”, case of prosecution would not collapse and prosecution can only prove case beyond reasonable doubt if there is other evidence to prove case. (Paras 55 and 62)

(D) Criminal Law – Hostile Witness – 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 testimony which is creditworthy must be considered and acted upon – It is for Judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of case – Fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence – Even, evidence of a “hostile witness” if it finds corroboration from facts of case may be taken into account while judging guilt of accused – There is no legal bar to raise conviction upon a “hostile witness” testimony if corroborated by other reliable evidence. (Para 67)

Facts of the case:

Moot question that arises for answering the reference is, in absence of complainant letting in direct evidence of demand owing to non-availability of complainant or owing to his death or other reason, whether demand for illegal gratification could be established by other evidence.

Findings of Court:

Complainants as well as the prosecution make sincere efforts to ensure that the corrupt public servants are brought to book and convicted so that the administration and governance becomes unpolluted and free from corruption.

Result : Reference answered.