REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 630 OF 2003

Banarsi Dass               Appellant

Vs.

State of Haryana                           Respondent

     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, [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. [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 Magistrar,  Jagadhri, was also present.  

She reported the matter.  Her statement was recorded.   She  

also produced four currency notes  of the denomination of Rs.  

100/- each  and the same were signed both by  Hari Singh, DSP  

and S.K. Joshi, Sub-divisional Executive Magistrate.     They  

went  to  Patwari  of   Chachhrauli.   They  were  told   by  the  

officers that on demand she should hand over the money  and  

once money was accepted she should inform the Police Station  

and  the  trap  was  accordingly  planned.     Sat  Pal  Kaur  

accompanied by Gurmej Singh left for Patwar-khana which was  

about one km. from the Police Station, Chachhrauli.   She  took  

Rs.  400/-  duly  signed  by  the   said  officers  to  pay  as  

gratification to the  Patwari.  The money was given to the  

appellant and accordingly Gurmej Singh  reported the matter to  

Shri Hari Singh, DSP and Shri S.K. Joshi at the Police Station.  

They rushed to the spot in a jeep that was parked at some  

distance from Patwar-khana.  On actual search of the appellant,  

four currency notes  duly signed by the officers were recovered  

from the front left pocket of  the shirt.   Recovery memo for  

the same was prepared.  The  tenants had raised no objection  

and  that  application  was  also  found  on  the  table  of  the  

appellant  in  Patwar-khana  which  was  taken  into  possession.  

After  conclusion of the trap,  the appellant was arrested and  

a  case  was  registered  with  the  Police  Station  Chachhrauli.  

After completion of the investigation,  a challan regarding  

commission of offence under Section 161 of the IPC and  under

Section 5(2) of the Act was filed before the Court of competent  

jurisdiction.  The Court framed  charges on both these offences  

and the appellant was  put to trial.

4. The prosecution in support of its case examined Tara  

Chand Pawar (PW-1),  Smt. Sat Pal Kaur (PW-2), Rajiv Sharma  

(PW-3),  Gurmej  Singh  (PW-4),   Daya  Singh  (PW-5),   Subhash  

Chander Patwari (PW-6), Shiv Dayal Reader (PW-7), Prem Bihari  

Lal (PW-8),  Ram Chander,  ASI(PW-9),  Shri S.K. Joshi (PW-10)  

and  Shri Hari Ram, DSP (PW-11) and closed its evidence.  When  

the  appellant  was  examined  under  Section  313  of  Criminal  

Procedure Code, 1973 (for short ‘the Cr.P.C.’), he  denied the  

allegations leveled against him and claimed to be innocent.   

5. The special Judge, Ambala, by order dated 30.01.1988  

convicted and sentenced the appellant under Section 161 of the  

IPC to undergo rigorous imprisonment for three years and under  

Section 5(2) of the Act to undergo rigorous imprisonment for  

four  years  and  to  pay  a  fine  of  Rs.1,000/-.     Feeling  

aggrieved by this order,  the appellant filed Criminal Appeal  

No. 83-SB of 1988 in the High Court of Punjab & Haryana at  

Chandigarh.   The  High  Court  by  order  dated  20.11.2002  

dismissed the appeal holding that the appellant was rightly  

convicted.

6. To establish the charge against the appellant-accused,  

the prosecution in relation to the demand and receipt of the  

illegal gratification, had examined mainly four witnesses; Sat  

Pal Kaur (PW-2), Gurmej Singh (PW-4), S.K. Joshi (PW-10) and

Hari Singh (PW-11).  Out of these material witnesses,  PW-2 and  

PW-4 both were declared hostile and were  cross-examined by the  

public prosecutor.    Leave to that effect  was  granted by the  

Court.  PW-2 had stated in her examination-in-chief that she  

apprehended that appellant wanted illegal gratification and for  

that  reason  he  was  not  recording  the  change  in  Khasra  

Girdawaris in favour of her mother.   PW-2 further stated that  

she had learnt from co-villagers that Rs.300-400/- as  reward  

was  to be given for such a job.   She had contacted the police  

thereafter.   She  was  confronted  with  her  statement  EX.PB  

recorded under Section 161 of the IPC wherein she had stated  

that Banarsi Dass had demanded  illegal gratification of Rs.  

400/- from her in  the presence of Gumrej Singh.  She also  

stated that she had signed the memos but she did not read  

them as she was quite  puzzled.   In the cross-examination,  

she also stated that “earlier to the day of the raid,  Banarsi  

Dass has  demanded Rs. 900/-.  It is correct that accused  

Banarsi  Dass  had  apologized  to  me  and  I  have  accepted  his  

apology”.   She further volunteered, “it is my humble request  

to the Court that the Court should also accept the apology of  

the  accused  who  has  got  small  children  to  maintain”.  

Thereafter,  she proceeded to  state that she had paid a sum of  

Rs. 400/- to the accused for  recording girdwari of the current  

crop in  favour of the mother.    In her cross-examination, it  

has also been stated that when she placed Rs. 400/- on his  

table, the accused had already recorded girdawari in favour of  

Jit  Singh and others  and the same had been verified  by  the  

Kanungo.    She (PW-2) had an altercation with the accused as

to why he had recorded Girdwari in favour of Jit Singh and  

others.  Then she placed Rs. 400/- on the table wherefrom the  

same was picked up by the police.  Gumrej Singh (PW-4),  the  

other  witness  who  was  also  declared  hostile  and  who  was  

subjected to cross-examination by the prosecution, stated that  

the appellant had not accepted or demanded any money from Sat  

Pal Kaur in his presence.    He denied that he had made any  

statement  to  the  police  (Ex.PW-3/A).   His  statement  under  

Section 161 of the IPC was completely denied by him.  According  

to  him,  he  had  taken  Sat  Pal  Kaur  to  Chachhrauli  but   he  

remained sitting in the car,  100 yards away from  Patwar-khana  

and he did not know the accused as he hailed from Chachhrauli.  

7. Witnesses PW-10 and  PW-11 are  the Senior Officers of  

the Administration and the Police.  The  complainant complained  

to  them  about  the  appellant  demanding  bribe  from  her  for  

correcting the Khasra Girdawaris in the name of the mother of  

PW-2.  A trap was planned.   In furtherance to which PW-2 had  

gone to the Patwar-khana and gave Rs. 400/- (the signed notes  

of Rs.100/- each) upon which the Gurmej Singh  was supposed to  

have informed  the police, about the acceptance of money by the  

appellant.   Thereafter,  the  police  came  to  the  spot  and  

recovered  the  money  from  the  front  left  pocket  of  the  

appellant’s shirt.  The search of the appellant was conducted  

by the police and money was recovered (Ex.P1 to Ex.P4)  for  

which  memo Ex.PD.   was  prepared.  The tainted notes, shirt  

and even the money otherwise recovered  from the  pocket of the  

appellant were taken into custody vide these  exhibits.    

8. It is apparent that PW-10 and PW-11 were not present in  

the Patwar-khana when the money was demanded and accepted by  

the appellant.  The prosecution primarily relied on the two  

witnesses   PW-2  and  PW-4  respectively  who  were  declared  

hostile. Certainly the prosecution can rely upon the statements  

of these witnesses and list their depositions made before the  

Court  by  having  those  statements   corroborated   or  

contradicted, as the case  may be,  by their earlier statements  

recorded under Section 161 of the I.P.C.  At this stage,  the  

finding recorded by the High Court can usefully be referred to:

“PW-2  Smt.  Sat  Pal  Kaur  has  clearly  stated  that  accused  has  informed  her  that  Girdawari  of  her  mother’s land had been recorded in the name of Jit  Singh and others as tenants.   She had contacted Jit  Singh and others and obtained no objection from them.  The  said  application  Ex.PA  was  forwarded  by  her  through  her  servant  to  the  Tehsildar.   She  had  contacted Banarsi Dass and requested him to change  the said girdawari in her mother’s name,  who told  her that he will do so at the time of recording of  khasra  girdawari  in  the  next  season.    She  apprehended that he wanted illegal gratification  and  for that reason,  he was not recording the change of  girdawari in the name of her mother.  She contacted  the Police and informed them about the matter.  She  had  visited  Patwar-khana,   where  Banarsi  Dass  was  present and placed Rs. 400/- on his table.  In the  meantime, police party came and seized that money.  She  was  declared  a  hostile  witness.   In  cross- examination,  she admitted her statement made under  Section 161 IPC.   She also admitted that Gurmej  Singh was not present when Banarsi Dass accused had  made a demand of illegal gratification of Rs. 400/-.  She admitted that it is correct that Banarsi Dass  accused has apologized from her and she had accepted  his apology.   She further volunteered that it is her  humble request to the Court that the Court should  also accept the apology of the accused.  The police  party  was  sitting  in  the  Thana.  So.   when  the  recovery was made by the police from the appellant- accused,   somebody  must  have  informed  the  police  about the handing of the bribe and Gurmej Singh was  the only person.  Shri S.K. Joshi,  Sub-Divisional  Magistrate,  Kalka has appeared as PW10.     He has

searched Smt. Satpal Kaur and her driver.  Gurmej  Singh visited the Police Station in the afternoon and  complained that Shri Banarsi Dass Patwari Halqa has  demanded  Rs.  900/-  for  the  correction  of  Khasra  girdawari.   Shri Hari Singh recorded the statement  of Sat Pal Kaur and made search of her person and  after the search, Rs.400/-,  which were signed by him  and Shri Hari Singh, were given to her.   The DSP had  prepared memo Ex-PC which was signed by him.  He  along with DSP,  Smt. Sat Pal Kaur and Gurmej Singh  went to Police Station Chachrauli and then went to  Patwar-khana.  Gurmej Singh was directed to come to  the Police Station in case the accused accepted the  money.  After receiving message,  they raided Patwar- khana.  Accused was found sitting in the Patwar-khana  and  his  person  was  searched  by  the  DSP  in  his  presence  and  currency  notes  Ex.P1  to  Ex.P4  were  recovered  from   the  front  pocket  of   the  shirt,  which the accused was wearing.  These were taken into  possession  vide  memo  Ex.PD.   Hari  Singh  also  supported the same.  So,  if merely shadow witness  had  turned  hostile,   accused-appellant  cannot  be  acquitted.   Mr.  S.K.Joshi  (  PW-10)  can  also  be  considered as a witness of recovery as currencynotes  handed over to Smt. Sat Pal Kaur after being signed  by PW-10 and PW-11 vide memo Ex.PC was recovered by  DSP (PW-11)  vide  memo Ex.PD in the presence of Sat  Pal Kaur PW-2 and Shri S.K. Joshi, PW-10”.

9. The above findings recorded by the High Court show that  

the Court relied upon the statements of PW-10 and PW-11.  It is  

further noticed that recovery of currency notes Ex. P-1 to P-4  

from the shirt pocket of the accused, examined in light of  Ex.  

PC and PD, there was sufficient evidence to record the finding  

of guilt against the accused.  The Court remained uninfluenced  

by the fact that the shadow witness had turned hostile, as it  

was  the  opinion  of  the  Court  that  recovery  witnesses  fully  

satisfied the requisite ingredients.  We must notice that the  

High Court has fallen in error in so far as it has drawn the  

inference of demand and receipt of the illegal gratification  

from the fact that the money was recovered from the accused.  

10. It is a settled canon of criminal jurisprudence that  

the conviction of an accused cannot be founded on the basis of  

inference.  The offence should be proved against the accused  

beyond reasonable doubt either by direct evidence or even by  

circumstancial evidence if each link of the chain of events is  

established pointing towards the guilt of the accused.  The  

prosecution has to lead cogent evidence in that regard.  So far  

as  it  satisfies  the  essentials  of  a  complete  chain  duly  

supported by appropriate evidence.  Applying these tests to the  

facts of the present case, P-10 and P-11 were neither the eye-

witnesses to the demand nor to the acceptance of money by the  

accused from Smt. Sat Pal Kaur (PW-2).  It is unfortunate but  

true that both PW-2 and PW-4 made statements before the Court  

which were quite different from the one made by them before the  

police during the investigation under Section 161 of the IPC.  

Gurmej Singh (PW-4) completely denied the incident and refused  

to acknowledge that the sum of  Rs. 900/- only was demanded by  

the accused from PW-2 in his presence and that the money was  

accepted in the Patwar-khana by the accused.  PW-2 obviously  

has not stated the complete truth before the Court.  Though  

after being declared hostile in her cross-examination she has  

supported  some  part  of  the  prosecution  case,  but  she  has  

virtually denied the essential ingredients to bring home the  

guilt of the accused either under Section 5 (2) of the Act or  

under Section 161 of the IPC.  She seems to have forgiven the  

accused for making such a demand and made such a statement  

before the Court that the Court should also ignore the offence.  

We are not and should not even be taken to have suggested that

PW-10  and  PW-11  have  not  made  correct  statement  before  the  

Court  or  that  the  Court  has  disbelieved  any  part  of  their  

statement.   But,  fact  of  the  matter  remains  that  their  

statement  with  regard  to  demand  and  acceptance  is  based  on  

hearsay i.e. what was told to them together by PW-2 and even by  

PW-4 at that stage.  The money was certainly recovered from the  

pocket of the accused vide memo Ex. P-D.  We, therefore, do not  

accept the contention on behalf of the accused that the amount  

was not recovered and the recovery is improper in law.  Ex. P-D  

has duly been attested by witnesses.  Thus, it cannot be said  

that  the  recovery  from  the  pocket  of  the  accused  is  

unsustainable in law and is of no consequence.   

11. 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 the  

accused.  Similarly, in terms of Section 5 (1) (d) of the Act,  

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.  In the case of M.K. Harshan v.  

State of Kerala [1996 (11) SCC 720], this Court in somewhat  

similar circumstances, where the tainted money was kept in the  

drawer of the accused who denied the same and said that it was  

put in the drawer without his knowledge, held as under :  

“.......It  is  in  this  context  the  courts  have  cautioned  that  as  a  rule  of  prudence,  some  corroboration is necessary. In all such type of cases  of bribery, two aspects are important. Firstly, there  must  be  a  demand  and  secondly  there  must  be  acceptance in the sense that the accused has obtained

the illegal gratification. Mere demand by itself is  not sufficient to establish the offence. Therefore,  the  other  aspect,  namely,  acceptance  is  very  important and when the accused has come forward with  a plea that the currency notes were put in the drawer  without his knowledge, then there must be clinching  evidence to show that it was with the tacit approval  of the accused that the money had been put in the  drawer as an illegal gratification. Unfortunately, on  this aspect in the present case we have no other  evidence except that of PW-1. Since PW-1’s evidence  suffers  from  infirmities,  we  sought  to  find  some  corroboration but in vain. There is no other witness  or any other circumstance which supports the evidence  of PW-1 that this tainted money as a bribe was put in  the drawer, as directed by the accused. Unless we are  satisfied on this aspect, it is difficult to hold  that  the  accused  tacitly  accepted  the  illegal  gratification or obtained the same within the meaning  of Section 5(1)(d) of the Act, particularly when the  version of the accused appears to be probable”.

12. Reliance on behalf of the appellant was placed upon the  

judgment of this Court in the case of C.M. Girish Babu (supra)  

where in the facts of the case the Court took the view that  

mere recovery of money from the accused by itself is not enough  

in absence of substantive evidence for demand and acceptance.  

The Court held that there was no voluntary acceptance of the  

money knowing it to be a bribe and giving advantage to the  

accused of the evidence on record, the Court in para 18 and 20  

of the judgment held as under :  

“18. In  Suraj Mal v.  State (Delhi Admn.) [1979 (4)  SCC  725]  this  Court  took  the  view  that  (at  SCC  p. 727,  para  2)  mere  recovery  of  tainted  money  divorced  from  the  circumstances  under  which  it  is  paid is not sufficient to convict the accused when  the substantive evidence in the case is not reliable.  The mere recovery by itself cannot prove the charge  of  the  prosecution  against  the  accused,  in  the  absence of any evidence to prove payment of bribe or  to  show  that  the  accused  voluntarily  accepted  the  money knowing it to be bribe.

20. A three-Judge Bench in M. Narsinga Rao v. State  of  A.P.[2001  (1)  SCC  691:  SCC  (Cri)  258] while  dealing with the contention that it is not enough  that  some  currency  notes  were  handed  over  to  the  public servant to make it acceptance of gratification  and prosecution has a further duty to prove that what  was paid amounted to gratification, observed: (SCC p.  700, para 24)

“24. … we think it is not necessary to deal with the  matter  in  detail  because  in  a  recent  decision  rendered by us the said aspect has been dealt with at  length. (Vide  Madhukar Bhaskarrao Joshi v.  State of  Maharashtra  [2000  (8)  SCC  571]).The  following  statement made by us in the said decision would be  the answer to the aforesaid contention raised by the  learned counsel: (Madhukar case, SCC p. 577, para 12)

‘12. The premise to be established on the facts for  drawing the presumption is that there was payment or  acceptance of gratification. Once the said premise is  established the inference to be drawn is that the  said gratification was accepted “as motive or reward”  for doing or forbearing to do any official act. So  the  word  “gratification”  need  not  be  stretched  to  mean  reward  because  reward  is  the  outcome  of  the  presumption  which  the  court  has  to  draw  on  the  factual  premise  that  there  was  payment  of  gratification.  This  will  again  be  fortified  by  looking  at  the  collocation  of  two  expressions  adjacent  to  each  other  like  “gratification  or  any  valuable thing”. If acceptance of any valuable thing  can help to draw the presumption that it was accepted  as motive or reward for doing or forbearing to do an  official  act,  the  word  “gratification”  must  be  treated in the context to mean any payment for giving  satisfaction to the public servant who received it.”

13. In fact, the above principle is no way derivative but  

is a reiteration of the principle enunciated by this Court in  

Suraj Mal case (supra), where the Court had held that mere  

recovery  by  itself  cannot  prove  the  charge  of  prosecution  

against the accused in the absence of any evidence to prove  

payment  of  bribe  or  to  show  that  the  accused  voluntarily  

accepted the money.  Reference can also be made to the judgment

of this Court in Sita Ram v. State of Rajasthan [1975 (2) SCC  

227], where similar view was taken.

14. The  case  of  C.M.  Girish  Babu  (supra)  was  

registered  under  the  Prevention  of  Corruption  Act,  1988,  

Section 7 of which is in pari materia with Section 5 of the  

Prevention of Corruption Act, 1947.  Section 20 of the 1988 Act  

raises  a  rebuttable  presumption  where  the  public  servant  

accepts  gratification  other  than  legal  remuneration,  which  

presumption is absent in the 1947 Act.  Despite this, the Court  

followed  the  principle  that  mere  recovery  of  tainted  money  

divorced from the circumstances under which it is paid would  

not be sufficient to convict the accused despite presumption  

and, in fact, acquitted the accused in that case.

15. In  light  of  the  above  principles  enunciated  by  the  

Court now we may examine the evidence on record with specific  

emphasis to the demand and acceptance of illegal gratification  

for changing Khasra Girdawaris in the name of mother of Smt.  

Sat Pal Kaur (PW-2).  Besides, the part of her statement which  

we have aforenoticed, she also stated that she had never made  

the statement Ex. PW-3/A before the police.  Even on the memos  

which have been signed by her she stated that she had signed  

them without reading the same.  She was educated up to 4th  

Class only.  In her cross-examination she does support a few  

facts of the prosecution but on the material circumstance/fact  

she has completely taken a somersault while making a statement  

before  the  Court.   Gurmej  Singh,  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.  The accused, when was put to  

incriminating evidence against him in terms of Section 313 of  

the Cr.P.C., did admit that PW-2 (complainant) had come to the  

office of Patwar-khana with the police but stated that no other  

persons had accompanied them.  PW-2 insisted on chaning the  

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 has also stated in her statement that she kept  

the money on the table after some altercation with the accused.  

In these circumstances, it is difficult for the Court to hold  

that the prosecution has established the offence against the  

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  the  

prosecution.   There  are  other  witnesses  examined  by  the  

prosecution which are formal witnesses and in the absence of  

support of PW-2 and PW-4, the prosecution has not been able to  

establish  the  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.

16. In light of the statement of two hostile witnesses PW-2  

and  PW-4,  the  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  cannot  be  said  to  have  been  proved  by  the  

prosecution in accordance with law.  We make it clear that it  

is only for the two witnesses having turned hostile and they  

having denied their statement made under Section 161 of the  

I.P.C. despite confrontation, that the accused may be entitled  

to accquital on technical ground.  But, in no way we express  

the opinion that the statement of witnesses including official  

witnesses  PW-10  and  PW-11,  are  not  accepted  by  the  Court.  

Similarly, we have no reason to disbelieve the recovery of Ex.  

P-1 to P-4 vide Ex. P-D.   

17. In the light of this we are of the considered view that  

the judgment of the High Court convicting the accused for the  

offences with which the accused was charged cannot be sustained  

in law.   

18. For the reasons aforerecorded and particularly in view  

of  the  fact  that  two  witnesses  turned  hostile,  giving  the  

benefit of doubt on technical ground to the accused, we hereby  

set  aside  the  judgement  of  the  High  Court  and  acquit  the  

accused of both the charges i.e. under Section 161 of the IPC  

and under Section 5 (2) of the Act.  The appeal is accordingly  

allowed leaving the parties to bear their own costs.  Bail  

bonds, if any, furnished by the appellant be released.

.......................J.        [ AFTAB ALAM ]

               .......................J.        [ SWATANTER KUMAR ]

New Delhi April 5, 2010.