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CASE NO.: Appeal (crl.)  885 of 2002

PETITIONER: GIRJA PRASAD (DEAD) BY LRs

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 27/08/2007

BENCH: C.K. THAKKER & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

C.K. THAKKER, J.

1.              The present appeal was filed by appellant Girja  Prasad (since deceased) against the judgment and final  order passed by the High Court of Madhya Pradesh,  Jabalpur on April 17, 2002 in Criminal Appeal No. 1070  of 1989. By the said judgment, the High Court set aside  an order of acquittal recorded by the II Addl. District &  Sessions Judge, Jabalpur on March 15, 1989 in Special  Criminal Case No. 40 of 1985 and convicted the  appellant for an offence punishable under Section 161 of  the Indian Penal Code (\021IPC\022 for short) and Section 5(1)(d)  read with Section 5(2) of the Prevention of Corruption  Act, 1947 (hereinafter referred to as \021the Act\022) and ordered  him to undergo simple imprisonment for four months  and to pay fine of Rs.200/- for the offence under Section  161, IPC. No separate sentence, however, was awarded to  him for offence under the Prevention of Corruption Act. 2.              Shortly stated, the facts are that the appellant  (Girja Prasad) was working as Lower Division Clerk (LDC)  in the Office of Divisional Ayurved Chikitsa Adhikari,  Jabalpur Division, Jabalpur. It was the case of the  prosecution that on September 20, 1983, Ramanarain  Rajoria, Divisional Ayurved Chikitsa Adhikari, Jabalpur  Division, Jabalpur (PW 4) paid surprise visit to Ayurvedic  Chikitsalaya, Dindori, District Mandla and found that  several members of the staff were absent including the  Ayurvedic Chikitsak himself. Consequently, he locked the  Ayurvedic Chikitsalaya and returned to Jabalpur.  Ramnarain Rajoria was accompanied by the accused  Girja Prasad Gupta. On September 27, 1983, the  complainant Anup Kumar (PW 1) came to Jabalpur and  informed to the Divisional Ayurvedic Chikitsa Adhikari  that he was on casual leave from September 7, 1983 to  September 11, 1983.  He also stated that he had  submitted an application for extension of leave upto  September 23, 1983 but the same was not available in  the Office of Divisional Ayurvedic Chikitsa Adhikari,  Jabalpur. On the same day, the Divisional Ayurvedic  Chikitsa Adhikari went to Dindori and opened the lock of  the Ayurvedic Chikitsalaya. It is alleged that PW 4- Ramnarain Rajoria asked the complainant that either he  should pay an amount of Rs.500/- through accused Girja  Prasad or should suffer suspension. The case of the  prosecution was that Anup Kumar paid Rs.300/- on the  same day to accused Girja Prasad at Dindori and assured  him to pay the remaining amount of Rs.200/- on October

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5, 1983 at Jabalpur. 3.              According to the prosecution, PW1- complainant Anup Kumar was not willing to pay the  remaining amount of Rs.200/- to the Divisional  Ayurvedic Chikitsa Adhikari.  He, therefore, lodged a  complaint in writing in the office of Lokayukt at  Jabalpur.  In the said complaint, it was stated that the  complainant wanted the corrupt officer to be caught red- handed. One J.M. Wadhwa (PW 8), an Assistant Engineer  from P.H.E.D., a Gazetted Officer agreed to act as trap  witness. The complainant and Wadhwa were asked to  come on the next day i.e. on October 5, 1983 for  arranging a trap. Accordingly, on October 5, 1983, the  complainant Anup Kumar reached the Office of Lokayukt  at 11.00 a.m.  He was asked to bring the accused in a  hotel so that he may be caught red-handed accepting the  bribe. Two currency notes of Rs.100/- denomination  each were kept in the pocket of the complainant duly  treated with chemical powder and he was informed about  the special signal after giving bribe to the accused, so  that the accused can be caught. The complainant got  back to the Lokayukt Office and informed the \021trap-party\022  that the accused had promised to come to Narmada  Restaurant at 5.00 p.m.  At 5.00 p.m., the complainant  came with the accused in the restaurant and sat near the  table of Wadhwa, panch witness, who was intimated  about the currency notes treated with chemical powder.  The accused then asked the complainant as to whether  he had brought the amount. The complainant replied in  the affirmative, took out two currency notes with his  right hand and gave them to the accused.  The  complainant immediately gave signal to the \021trap party\022.  Inspector of Special Police Establishment, S.K. Tiwari  (PW 10) and Wadhwa (PW 8), Gazetted Officer who was  associated with the \021trap party\022 reached near the accused  and asked him where the money was.  The accused told  them that the money was in the pocket of his shirt. The  hands of the accused were washed in the solution of the  sodium carbonate and liquid became \021matmaila\022. The  pocket of the shirt of the accused was separately washed  in the solution of the sodium carbonate and the liquid  again became \021matmaila\022. A panchnama of the  proceedings was drawn. Another panch was Jawahar  Soni (PW 6). Liquid of the \021hand-wash\022 and \021pocket-wash\022  of the accused was separately sealed in two bottles and  was sent to the Forensic Science Laboratory. On analysis,  it was found by the Chemical Examiner that the \021pocket- wash\022 of the shirt of the accused was having traces of  phenolphthalein powder. Sanction for prosecution of the  accused was granted by the State Government. Charge  sheet was submitted before the Special Judge.   Investigation was conducted and the accused was  charged for offences punishable under Section 161, IPC  and Sections 5(1)(d) and 5(2) of the Act. 4.              The prosecution, in order to prove the case  against the accused, inter alia examined PW1-Anup  Kumar- Complainant, PW 4-Ramnarain Rajoria, PW 6- Jawahar Soni-Panch II, PW 8-J. M. Wadhwa-Panch I, PW  10-S.K. Tiwari-Inspector of Special Police Establishment.  The case of the appellant-accused was of total denial. In  his defence, he stated that he had been falsely  implicated. 5.              It may be stated that at the trial, both the  Panch witnesses-Jawahar Soni-PW 6 and Wadhwa-PW 8  did not support the prosecution and were treated

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\021hostile\022. The fate of the case, therefore, hanged on two  witnesses,    PW 1-Anup Kumar-Complainant and PW  10-S.K. Tiwari-Inspector of Special Police Establishment.  The Trial Court negatived the contention of the accused  that sanction was not in accordance with law and the  trial was vitiated. The Court, however, acquitted the  accused holding that both the Panchas did not support  the case of the prosecution.  According to the  prosecution, it was PW 4-Ramnarain Rajoria, the  Divisional Ayurvedic Chikitsa Adhikari who had asked  the complainant to pay Rs.500/- to the accused that the  complainant paid the said amount to him. The Trial  Court, therefore, concluded that the money was to be  paid to PW 4-Ramnarain Rajoria who was not arrayed as  accused and against whom no proceedings had been  initiated. 6.              Regarding evidence of PW 1-Anup Kumar-  Complainant and PW 10-S.K. Tiwari-Inspector of Special  Police Establishment, the Court stated that their  evidence could not be relied upon since they were  \021interested\022 witnesses.  7.              The Court also observed that the accused was  merely a Clerk and he was not in a position to oblige the  complainant by not placing him under suspension. The  power to suspend was only with Ramnarain Rajoria\027PW  4, and the \021main work\022 was to be done by Ramnarain  Rajoria, but it was not clear under what compelling  circumstances, no prosecution was launched against  Ramnarain Rajoria. The Court also observed that  presumption under Section 4(1) of the Act was not  available to the prosecution as the amount paid by the  complainant was to be given to PW4-Ramnarain Rajoria.  Accordingly, the Trial Court acquitted the accused. 8.              The State preferred an appeal against the  acquittal and the High Court, as observed earlier, set  aside the order of acquittal and convicted the accused for  the offences with which he was charged. The said  conviction has been challenged by the accused in this  Court. 9.              On August 2, 2002, notice was issued by this  Court. On September 2, 2002, leave was granted and the  accused was ordered to be released on bail. The matter  was thereafter placed for final hearing.  10.             On August 1, 2007, when the matter was  placed before us for final hearing, it was stated that  during the pendency of the appeal, Girja Prasad (original  appellant-accused) died. It was stated that Smt. Munni  Bai, widow of deceased Girja Prasad had filed an  application under proviso to sub-section (2) of Section  394 of the Code of Criminal Procedure, 1973 (hereinafter  referred to as \021the Code\022) to allow her to continue the  appeal by seeking leave of this Court. The said provision  confers right on near relatives of the accused who is  convicted and sentenced to imprisonment and who dies  during the pendency of the appeal to continue the appeal  in certain cases by applying to the Court within thirty  days of the death of the appellant. Such application was  filed by Munni Bai. The Registry of this Court, however,  raised an objection that there was delay of 149 days in  filing the application. After hearing learned counsel for  the parties, we condoned delay, granted the prayer of  applicant-Munni Bai and allowed her to continue the  appeal. We, thereafter, heard learned counsel for the  parties. 11.             The learned counsel for the appellant

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contended that the High Court was wholly wrong in  allowing the appeal against an order of acquittal and in  convicting the deceased-accused for offences punishable  under Section 161, IPC and Section 5(1)(d) read with  Section 5(2) of the Act. It was submitted that the Trial  Court was right in acquitting the accused, particularly  when no prosecution was lodged against PW 4\027 Ramnarain Rajoria who was the main culprit and for  whom the amount of Rs.200/- was alleged to have been  accepted by the accused. It was also submitted that the  Trial Court was right in observing that no independent  witness supported the prosecution and only \021interested\022  version was placed before the Court in the form of  deposition of PW 1\027Anup Kumar-Complainant and PW  10-S.K. Tiwari, Inspector. Both independent panchas (PW  8\027Wadhwa and PW 6\027Jawahar Soni) did not oblige the  prosecution.  12.             The counsel submitted that from the evidence,  it could not be said that demand and acceptance of  Rs.200/- by the accused was proved.  But even if it was  held proved, since the accused was not in a position to  oblige the complainant and the demand and acceptance  was for and on behalf of PW 4-Ramnarain Rajoria, the  Trial Court was right in holding that the accused was  merely made a \021scapegoat\022. 13.             It was also urged that even if the High Court  felt that the other view was possible, as per settled law, it  ought not to have disturbed the order of acquittal. 14.             Finally, it was submitted that during the  pendency of the appeal in this Court, the accused had  died and hence there is no question of sending the  accused to jail.  On the other hand, if the conviction is  set aside, the family members of the deceased-accused  would be able to get retiral benefits of the deceased. 15.             The learned counsel for the respondent-State,  on the other hand, supported the order of conviction  passed by the High Court. According to him, the entire  approach of the Trial Court was illegal and faulty. Once it  is proved that the accused accepted the amount, it was  immaterial whether he was in a position to oblige the  complainant or not or whether the acceptance of amount  was for him or for someone else. The Trial Court was,  therefore, not right in acquitting the accused on the  ground that the accused accepted the amount for  Ramnarain Rajoria-PW 4. Grievance was also made by  the learned advocate that the Trial Court was legally  wrong in discarding the evidence of PW 1-Anup Kumar- Complainant and PW 10-S.K. Tiwari-Inspector,  characterizing them as \021interested\022 witnesses. It was,  therefore, submitted that the appeal deserves to be  dismissed. 16.             Having anxiously considered the rival  contentions of the parties and having gone through the  record of the case meticulously, we are of the view that  the High Court was wholly justified in setting aside  acquittal of the accused and in recording an order of  conviction against him. From what is stated above, it is  clear that the Trial Court also believed the case of the  prosecution that the amount of Rs.200/- was paid by  PW1-Anup Kumar-Complainant to accused Girja Prasad  which is clear form the following finding recorded in para  46 of the judgment;            \023Thus from the above evidence from Anup  Kumar, it becomes clear that Anup Kumar

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entrusted Rs.200/- to the accused so that  accused Girja Prasad may give it to Shri  Rajoria\024.

17.             The Court then proceeded to state;

    \023Clearly the acceptance of Rs.200/-  currency notes by accused Girja Prasad, he  was only innocent scarifying goat in the hands  of Mr. Rajoria\005\024       18.             The Trial Court also observed:      \023It goes without saying that accused Girja  Prasad worked as innocent carrier to Rajoria  misusing his post while performing his official  duty or he adopted illegal means for that\024.       19.             To us, the learned advocate for the  respondent-State is right in submitting that once it is  proved that the amount has been received by the  accused, presumption under Section 4 of the Act would  get attracted.  Section 4 of the Prevention of Corruption  Act, 1947 (since repealed) provided for presumption  where public servant accepted gratification other than  legal remuneration.  Sub-section (1) of the said section  was relevant and read as under;      \023Presumption where public servant  accepts gratification other than legal  remuneration.\027(1) Where in any trial of an  offence punishable under Section 161 or  Section 165 of the Indian Penal Code (45 of  1860) or of an offence referred to in clause (a)  or clause (b) of sub-section (1) of Section 5 of  this Act punishable under sub-section (2)  thereof, it is provided that an accused person  has accepted or obtained, or has agreed to  accept or attempted to obtain, for himself or  for any other person, any gratification (other  than legal remuneration) or any valuable thing  from any person, it shall be presumed unless  the contrary is proved that he accepted or  obtained, or agreed to accept or attempted to  obtain, that gratification or that valuable  thing, as the case may be, as a motive or  reward such as is mentioned in the said  Section 161, or, as the case may be, without  consideration or for a consideration which he  knows to be inadequate.\024         20.             The Trial Court observed that the presumption  is not \021absolute\022, but is rebuttable and the accused can  prove otherwise for getting rid of such presumption.  This  is true.  But, in our view, the Trial Court lost sight of the  fact that the case of the accused was of \021total denial\022 and  of \021false involvement\022. The presumption, in the  circumstances, could not be said to have been rebutted  by the accused.  21.             In our opinion, once the finding was recorded  by the Trial Court that the accused had accepted the  amount, it was wholly immaterial whether the said  acceptance of amount was for him or for someone else.  Even if an accused accepts the amount for \021someone  else\022, he commits an offence. In this connection, we may  refer to both the provisions i.e. Section 161, IPC (before it

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was repealed by Section 31 of the Prevention of  Corruption Act, 1988) and Section 5(1)(d) of the  Prevention of Corruption Act, 1947 (before the said Act  was repealed by the Prevention of Corruption Act, 1988). 161.    Public servant taking gratification other  than legal remuneration in respect of an official  act.\027Whoever, being or expecting to be a  public servant, accepts or obtains, or agrees to  accept, or attempts to obtain from any person,  for himself or for any other person, any  gratification whatever, other than legal  remuneration, 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 functions, favour or disfavour to  any person, or for rendering or attempting to  render any service or disservice to any person,  with the Central or any State Government or  Parliament or the Legislature of any State, or  with any local authority, corporation or  Government company referred to in section 21,  or with any public servant, as such, shall be  punished with imprisonment of either  description for a term which may extend to  three years, or with fine, or with both.  (emphasis supplied)

       5(1). Criminal misconduct.\027(1) A public  servant is said to commit the offence of  criminal misconduct---

(a)     to (c) \005.

(d) if he, by corrupt or illegal means  or by otherwise abusing his position  as public servant, obtains for  himself or for any other person  any valuable thing or pecuniary  advantage.               (emphasis supplied) 22.             It was, therefore, of no consequence whether  the accused had accepted the amount for and on behalf  of Ramnarain Rajoria-PW 4.  Once it is proved that he  accepted the amount of Rs.200/-, he cannot escape from  criminal liability on a specious ground that he was made  \021scapegoat\022 or was merely \021innocent carrier\022. It was also  immaterial whether the accused was or was not in a  position to oblige the complainant by preventing or  delaying his suspension. The case of the prosecution was  that the complainant was asked to pay an amount of  Rs.500/- by the accused and the said amount had been  accepted by him in two installments, Rs.300/- at Dindori  and Rs.200/- at Jabalpur where trap was successful. 23.             We are equally unable to uphold the  contention of the learned counsel for the appellant that  the trial Court was right in not relying upon PW 1-Anup  Kumar-Complainant and PW 10-S.K. Tiwari-Inspector of  Special Police Establishment. The trial Court, it may be  stated, discarded the evidence of these two witnesses by  laying down the following proposition of law;      \023It goes without saying that Anup Kumar  and Shri S.K. Tiwari were concerned only with  the success of the trap and thus both these  persons are interested witnesses. PW 10, Shri  Tiwari is Inspector in Lokayukt Office therefore  he is highly interested witness\024.

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24.             In our judgment, the above proposition does  not lay down correct law on the point. It is well-settled  that credibility of witness has to be tested on the  touchstone of truthfulness and trustworthiness. It is  quite possible that in a given case, a Court of Law may  not base conviction solely on the evidence of Complainant  or a Police Official but it is not the law that police  witnesses should not be relied upon and their evidence  cannot be accepted unless it is corroborated in material  particulars by other independent evidence. The  presumption that every person acts honestly applies as  much in favour of a Police Official as any other person.  No infirmity attaches to the testimony of Police Officials  merely because they belong to Police Force. There is no  rule of law which lays down that no conviction can be  recorded on the testimony of Police Officials even if such  evidence is otherwise reliable and trustworthy. The rule  of prudence may require more careful scrutiny of their  evidence. But, if the Court is convinced that what was  stated by a witness has a ring of truth, conviction can be  based on such evidence. 25.             It is not necessary to refer to various decisions  on the point. We may, however, state that before more  than half-a-century, in the leading case of Aher Raja  Khima v. State of Saurashtra, AIR 1956 SC 217,  Venkatarama Ayyar, J. stated:      \023The presumption that a person acts  honestly applies as much in favour of a  police officer as of other persons, and it is  not judicial approach to distrust and  suspect him without good grounds  therefor. Such an attitude could do neither  credit to the magistracy nor good to the public.  It can only run down the prestige of the police  administration\024.                 (emphasis supplied)        26.             In Tahir v. State (Delhi), (1996) 3 SCC 338,  dealing with a similar question, Dr. A.S. Anand, J. (as  His Lordship then was) stated:      \023Where the evidence of the police officials,  after careful scrutiny, inspires confidence and  is found to be trustworthy and reliable, it can  form basis of conviction and the absence of  some independent witness of the locality to  lend corroboration to their evidence, does not  in any way affect the creditworthiness of the  prosecution case\024.

27.             Regarding setting aside acquittal by the High  Court, the learned counsel for the appellant relied upon  Kunju Muhammed v. State of Kerala, (2004) 9 SCC 193 :  JT (2003) 7 SC 114, Kashi Ram v. State of M.P., (2002) 1  SCC 71 : JT (2001) 8 SC 650 and Meena v. State of  Maharashtra, (2000) 5 SCC 21 : JT 2000 (4) SC 521. In  our opinion, the law is well settled. An appeal against  acquittal is also an appeal under the Code and an  Appellate Court has every power to reappreciate, review  and reconsider the evidence as a whole before it. It is, no  doubt, true that there is presumption of innocence in  favour of the accused and that presumption is reinforced  by an order of acquittal recorded by the Trial Court. But  that is not the end of the matter. It is for the Appellate  Court to keep in view the relevant principles of law, to  reappreciate and reweigh the evidence as a whole and to

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come to its own conclusion on such evidence in  consonance with the principles of criminal jurisprudence. 28.             In Shivaji Sahabrao Bobade v. State of  Maharashtra, (1973) 2 SCC 793, dealing with a similar  situation, a three Judge Bench speaking through V.R.  Krishna Iyer, J. stated:      \023Even at this stage we may remind  ourselves of a necessary social perspective  in criminal cases which suffers from  insufficient forensic appreciation. The  dangers of exaggerated devotion to the rule  of benefit of doubt at the expense of social  defence and to the soothing sentiment that  all acquittals are always good regardless of  justice to the victim and the community,  demand especial emphasis in the  contemporary context of escalating crime  and escape. The judicial instrument has a  public accountability. The cherished  principles or golden thread of proof beyond  reasonable doubt which runs thro\022 the web  of our law should not be stretched  morbidly to embrace every hunch,  hesitancy and degree of doubt. The  excessive solicitude reflected in the  attitude that a thousand guilty men may  go but one innocent martyr shall not suffer  is a false dilemma. Only reasonable  doubts belong to the accused.  Otherwise any practical system of  justice will then break down and lose  credibility with the community. The evil  of acquitting a guilty person light-heartedly  as a learned author has sapiently  observed, goes much beyond the simple  fact that just one guilty person has gone  unpunished. If unmerited acquittals  become general, they tend to lead to a  cynical disregard of the law, and this in  turn leads to a public demand for harsher  legal presumptions against indicated  ’persons’ and more severe punishment of  those who are found guilty. Thus too  frequent acquittals of the guilty may lead  to a ferocious penal law, eventually eroding  the judicial protection of the guiltless. For  all these reasons it is true to say, with  Viscount Simon, that "a miscarriage of  justice may arise from the acquittal of  the guilty no less than from the  conviction of the innocent\005." In short,  our jurisprudential enthusiasm far  presumed innocence must be moderated  by the pragmatic need to make criminal  justice potent and realistic. A balance has  to be struck between chasing enhance  possibilities as good enough to set the  delinquent free and chopping the logic of  preponderant probability to punish  marginal innocents.\024                                                        (emphasis supplied)             29.             Recently, in Chandrappa v. State of Karnataka,  (2007) 4 SCC 415 : JT (2007) 3 SC 316, after considering

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the relevant provisions of the old Code (Code of Criminal  Procedure, 1898) and the present Code (Code of Criminal  Procedure, 1973) and referring to decisions of the Privy  Council and of this Court, one of us (C.K. Thakker, J.)  laid down certain general principles regarding powers of  Appellate Court in dealing with appeal against an order of  acquittal. In para 42 it was observed:      \02342. From the above decisions, in our  considered view, the following general  principles regarding powers of appellate  Court while dealing with an appeal against an  order of acquittal emerge;      (1) An appellate Court has full power to  review, reappreciate and reconsider the  evidence upon which the order of acquittal is  founded;      (2) The Code of Criminal Procedure,  1973 puts no limitation, restriction or  condition on exercise of such power and an  appellate Court on the evidence before it may  reach its own conclusion, both on questions  of fact and of law;      (3) Various expressions, such as,  \021substantial and compelling reasons\022, \021good  and sufficient grounds\022, \021very strong  circumstances\022, \021distorted conclusions\022,  \021glaring mistakes\022, etc. are not intended to  curtail extensive powers of an appellate Court  in an appeal against acquittal.  Such  phraseologies are more in the nature of  \021flourishes of language\022 to emphasize the  reluctance of an appellate Court to interfere  with acquittal than to curtail the power of the  Court to review the evidence and to come to  its own conclusion.      (4) An appellate Court, however, must  bear in mind that in case of acquittal, there is  double presumption in favour of the accused.   Firstly, the presumption of innocence  available to him under the fundamental  principle of criminal jurisprudence that every  person shall be presumed to be innocent  unless he is proved guilty by a competent  court of law.  Secondly, the accused having  secured his acquittal, the presumption of his  innocence is further reinforced, reaffirmed  and strengthened by the trial court.      (5) If two reasonable conclusions are  possible on the basis of the evidence on  record, the appellate court should not disturb  the finding of acquittal recorded by the trial  court\024. 30.             In the case on hand, as observed earlier, both  the Courts below recorded a positive finding that the  accused accepted an amount of Rs.200/-. In our opinion,  therefore, Section 4 of the Act got attracted and  presumption came into play against the accused. There  was no rebuttal by the accused by leading any evidence  whatsoever. The defence was of total denial and of false  implication. Hence, the doctrine of \021preponderance of  probability\022 also had no application. The Trial Court was,  therefore, wrong in not invoking Section 4 and raising  presumption. The Trial Court was also wrong in  discarding the evidence of PW 1-Anup Kumar- Complainant and PW 10-S.K. Tiwari-Inspector observing

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that they were \021interested\022 witnesses and their testimony  could not be relied upon. If it is so, in our judgment, the  High Court was justified in setting aside the order of  acquittal and in convicting the accused for the offences  with which he was charged. 31.             We appreciate the anxiety of the learned  counsel for the appellant that if the conviction of the  deceased is upheld by this Court, the deceased may not  be held entitled to pensionary and other benefits.  We  are, however, helpless. Once we are satisfied that the  acquittal recorded by the Trial Court was not in  consonance with law and the High Court was right in  setting aside it and in convicting the accused, it is a mere  \021consequence\022 which cannot be helped. The argument of  \021sympathy\022, therefore, does not impress us and cannot  carry the case of the appellant-applicant herein further. 32.             For the foregoing reasons, the appeal deserves  to be dismissed and is accordingly dismissed.