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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: DR.G.K. GHOSH

DATE OF JUDGMENT21/09/1983

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1984 AIR 1453            1983 SCR  (3) 993  1984 SCC  (1) 254        1983 SCALE  (2)407

ACT:      Evidence-Re-appreciation of  evidence  by  the  Supreme Court in  an appeal  by Special  Leave-Article  136  of  the Constitution read with Order XXI.      Witnesses-Evidence of  the complainant  Probative value of.      Prevention  of   Corruption  Act,  1947-Police  officer leading the raiding party-Not an interested witness.

HEADNOTE:      Respondent was  an orthopaedic  surgeon in  the  U.H.M. Hospital and  was incharge of the Orthopaedic Department. He was allotted  an official residence within the campus of the hospital and  as per  the prevailing  rules he was permitted consultation practice  at his residence, He 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 the Prevention of  Corruption Act, 1947 and for an offence under section 161  of the Penal Code by the Special Judge, Kanpur. Consequently he  was sentenced  to  undergo  to  two  years’ rigorous imprisonment  and to  pay a  fine of  Rs.5,000  (in default to  undergo 4  months’ R.I.) The appeal preferred by the convict  was allowed  and the  order of  conviction  and sentence was  set aside  by the High Court. Hence the appeal by State, by special leave.      Allowing the  appeal, restoring  the finding  of guilt, and order  of conviction,  but modifying  the sentence,  the Court, ^      HELD: (1) Only in exceptional cases and in the peculiar facts and  circumstances of  a case, the Supreme Court would be obliged, as in the instant case, to undertake upon itself the function  of appreciation  of evidence,  which  function properly falls  within the  sphere of  the High Court in its capacity as  the  appellate  Court.  Here,  the  High  Court resorted to surmises and conjectures for which there was not the slightest  basis. The High Court failed to undertake the exercise of  scrutinising,  and  making  assessment  of  the evidence and  failed to  record a  finding of  fact in after considering the  question of  reliability and credibility of

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the witnesses  and weighing the probabilities in the context of the circumstantial evidence. [996 B-E]      2:1. By  and large  a citizen  is  somewhat  reluctant, rather than anxious, to complain to the vigilance Department and to have a trap arranged even if 994 illegal gratification  is demanded  by a Government servant. There are  numerous reasons for the reluctance. In the first place, he  has to  make a  number of visits to the office of Vigilance Department and to wait on a number of officers. He has to  provide his own currency notes for arranging a trap. He has  to  comply  with  several  formalities.  He  has  to accompany the  officers  and  participants  of  the  raiding party. All  the while  he has  to remain  away from his job, work, or  avocation. He has to sacrifice his time and effort whilst doing  so. Thereafter,  he has to attend the court at the time  of the  trial from day to day. He has to withstand the searching cross-examination by the defence counsel as if he himself is guilty of some fault. In the result, a citizen who has  been harassed  by a Government Officer, has to face the humiliation of being considered as a person who tried to falsely implicate  a Government  servant, not  to  speak  of facing  the   wrath  of   the  Government  servants  of  the department  concerned   in  his  future  dealings  with  the department. No  one would  therefore  be  too  keen  or  too anxious to  face such an ordeal. Ordinarily, it is only when a citizen  feels oppressed by a feeling of being wronged and finds the  situation to  be beyond endurance, that he adopts the course  of  approaching  the  Vigilance  Department  for laying a  trap. His  evidence cannot  therefore be easily or lightly brushed aside. [1001 E-H; 1002 A B]      2:3. Of course, it cannot be gain said that it does not mean that  the court  should be  oblivious of  the need  for caution and  circumspection bearing  in mind  that  one  can conceive of  cases where  an  honest  or  strict  Government official may be falsely implicated by a vindictive person to whose demand,  for  showing  favours,  or  for  according  a special treatment  by giving  a go-bye  to  the  rules,  the official refuses to yield. [1002 B-C]      3:1. The evidence of a police officer cannot be brushed aside as  that of  an interested  witness. That  he  has  an interest is true only to an extent-a very limited extent. He is interested  in the  success of  the trap to ensure that a citizen, who complains of harassment by a Government Officer making a  demand for illegal gratification, is protected and the role  of  his  department  in  the  protection  of  such citizens is  vindicated. Perhaps it can be contended that he is interested  in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same time it  must be  realised that  it is not frequently that a police officer,  himself being  a Government  Servant, would resort to  perjury and  concoct evidence in order to rope in an  innocent   Government  servant.  In  the  event  of  the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect  the  police  officer  to  go  to  the  length  of concocting  a   false  seizure   memo  for  prosecuting  and humiliating him  merely in  order to  save the  face of  the complainant, thereby  compromising his  own conscience.  The court may  therefore, depending  on the  circumstances of  a case, feels safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even  if the  trap witnesses  turn hostile  or  are found not  to be  independent. When  therefore besides  such evidence  there   is  circumstantial   evidence   which   is

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consistent with  the guilt of the accused and not consistent with  his  innocence,  there  should  be  no  difficulty  in upholding the  prosecution case. The present appears to be a case of that nature.[1002 D-H] 995      3:2. In the instant case, taking an overall view of the evidence of  PW  1,  PW  2,  PW  3  and  the  circumstantial evidence, it is not possible to believe that the raid proved abortive and  yet everyone  conspired together  in order  to falsely rope in the respondent. [1009 F]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 609 of 1981.      Appeal by  Special leave  from the  judgment and  Order dated the  22nd July,  1983 of  the Allahabad  High Court in Criminal Appeal No. 1237 of 1979.      O.P. Malhotra and D. Bhandari for the Appellant.      V. M.  Tarkunde, U.R.  Lalit, Dr. B.S. Chauhan and B.B. Singh, for the Respondent.      The Judgment of the Court was delivered by      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.      The High  Court  allowed  the  appeal  on  forming  the opinion that  Dr. Ghosh  (the respondent  herein) 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.      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 996 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 been ’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  the  Sessions

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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, had 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 put to do so here.      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 T.  B. and was admitted to the UMH  Hospital on 18th February 1976. She was referred to the Orthopaedic  section on  19th  February  1976.  She  was placed under  the treatment  of respondent  Dr. Ghosh. After about six  or seven days respondent asked PW 3 to remove the patient from  the hospital  saying that  she was cured. PW 3 objected saying  that the  condition of  his child  had  not improved. The respondent asked PW 3 to see 997 him at  his residence in the evening. It appears that at the hospital Babu  Lal learnt  that he  would have  to pay  some money to  the respondent,  Dr. Ghosh, if he wanted his child to be  treated properly.  PW 3  therefore paid Rs. 20 to the respondent when  he called  on him  at his  residence in the evening as  suggested earlier. Thereupon the respondent told PW 3  that his  child would  be permitted  to remain  in the hospital for  treatment. Even  so some  seven or  eight days later respondent  asked PW-3  to remove  the child  from the hospital. It  appears that PW 3 gathered the impression that he would  have to  pay money to the respondent for obtaining proper treatment  at the  hospital. PW  3 in this background made a  request to  the respondent to issue a certificate so that he  could  get  a  loan  or  advance  for  the  medical expenses. The respondent told PW 3 that he would have to pay a sum  of Rs.  250 to  obtain a certificate to enable him to obtain a  loan of  Rs. 500.  PW 3  refused to  accede to the demand. Thereupon  the respondent  told him  to  remove  the patient from  the hospital. In view of what transpired, PW 3 met the  respondent on  March 13, 1976, and requested him to issue a  certificate to enable him to obtain a loan from the factory. The  respondent again  told him  that he  would not issue a  certificate unless  his demand for Rs. 250 was met. PW 3  made entreaties  to the  respondent but the respondent did not  relent. He  told him to remove the patient from the hospital. Thereupon  PW 3 promised to the respondent that he would make  some payment  immediately and that the remaining amount would  be paid  shortly thereafter. PW 3 went back to bring the  money. It  appears that  he felt  exasperated and conceived the  idea  of  trapping  the  respondent  at  this juncture. He  had five currency notes of the denomination of Rs. 10  with him.  He noted  down the numbers of these notes and carried  the sum  with him  when he again approached the

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respondent. The  respondent accepted the five currency notes but refused  to issue  a certificate  unless  the  remaining amount of  Rs. 200  was paid to him, though PW 3 promised to pay the remaining amount within three or four days. PW 3 was thereupon  very   much  annoyed   by  the  attitude  of  the respondent  and   he  decided   to  approach  the  Vigilance Department. He  approached the  Vigilance Officer and lodged complaint exhibit KA-8 on March 31, 1976. It appears that he had borrowed  Rs. 200  with a  view to  provide the currency notes for  laying a  trap. He had carried 20 ten-rupee notes with him.  In the  complaint lodged by him, Exhibit KA-8, he specified the  numbers of the 5 ten-rupee notes which he had already given to the respondent on the earlier occasion, the numbers of  which he  had noted  down  previously.  He  also specified the numbers of the 20 ten-rupee notes provided by 998 him at the time of lodging the complaint. The Superintendent of the Vigilance Department, Shri I.P. Bhatnagar, called his Deputy, Dy.S.  P. Pandey, and asked him to do the needful in the matter. Dy. S. P. Pandey asked PW 3 to meet him on April 2,  1976   at  5-30   p.  m.  in  Kaushik  Park.  Meanwhile, Superintendent Bhatnagar contacted the Director of Vigilance Department  and   moved  the  competent  authority  for  the requisite permission.  The Commissioner-Cum-Secretary of the Vigilance  Department,   Shri   Khodaji,   granted   written permission to  lay a  trap against  respondent Dr. Ghosh. On receiving the sanction Superintendent Bhatnagar directed Dy. S. P.  Pandey  to  proceed  to  lay  the  trap.  It  is  the prosecution case  that thereafter   PW 3 contacted Dy. S. P. Pandey at  Kaushik Park  on April  2, 1976  at 5-30 p.m. Two witnesses were  called. The  currency notes were handed over to PW  1, Inspector Bahadur Singh. Initials were made on the 20 G.  C. notes,  the notes  were treated with Phenophthalin powder and  the plan  of the trap was explained to PW 3, the public witnesses,  and to  the members who were to accompany the party.      As per  the  plan,  initially,  Sham  Lall  and  Thakur Parshad were sent to the consultation room of the respondent on the  second floor  of his residence. What transpired need not be  stated as  he has  not been  examined as  a witness. After Sham  Lal returned.  PW 3,  along with  PW 2 Constable Bachu Lal,  entered the Consultation room. PW 2 was in plain clothes and  had posed  as the  elder brother  of PW 3. When both  of  them  entered  the  Consultation  room  respondent enquired from  PW 3  whether he  had brought the money. PW 3 replied in  the affirmative.  PW 3  then handed  over the 20 ten-rupee notes  which had  been treated with powder and the numbers of  which had  been  noted  down  in  the  complaint against the  respondent. The  respondent took these notes in his hands  and placed  the same  in the left front pocket of his bush-shirt.  Thereafter the  respondent took the form on which he  was to  issue the  certificate  from  P.W.  3  and started filling in the details. The form was a typed one and there were blank spaces which were required to be filled in. The typed portion appeared as under:      Certified that  Shri/Km.______________________D/o  Shri __________________     _______ of ORDANCE PARACHUTE FACTORY, Kanpur has  been admitted  in the Hospital for the treatment of___________________.  He   will  stay   in  Hospital   for ____________ days.  The anticipated  expenditure  likely  to incur is  Rs. _________  .  Shri________________________  is recommended     to      draw     Medical      Advance     of Rs.______________________ 999 ________________from_______________________from          his

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employer. Station Kanpur                           Medical Officer Date:                                     Kanpur      The respondent filled in the name of the patient in the first line  and mentioned  her age  (Ramsri, 13)  in his own hand by  pen. He  also mentioned the name of PW-3 (Babu Lal) in the  relevant column  in the  second line.  In the fourth line in the blank space he mentioned the name of the disease (T.B. Left  Hip). He also mentioned the date of admission in his own hand (18-2-76). Having filled in these blanks he was about to  fill up the blank in the fifth line for mentioning the number of days for which the patient was retained in the hospital and  to mention the estimated amount of expenditure and to fill up the details in the remaining columns. At this juncture, it  is the  prosecution case,  the members  of the raiding party  carried out  the raid in the wake of a signal given by PW-2 Bachu Lal as per the instructions given at the time  of  arranging  the  plan.  Since  the  respondent  was interrupted when  he was filling up the blanks, he could not complete the  form and  make his  signature. The half-filled certificate form,  Ex. KA-5,  was seized  in the presence of the public  witnesses. The  respondent was  asked if  he had accepted money  from PW  3. The respondent hereupon took out the 20  ten rupee  notes from his pocket and handed over the same to  Dy. S. P. Pandey. The numbers of the currency notes were tallied  with the  numbers mentioned  in complaint, Ex. KA-3, and incorporated in Farad Ex. KA-1. The currency notes were placed in an envelope which was sealed. The hand of the respondent was  washed  in  a  cup  of  solution  of  Sodium Carbonate in  the presence  of the  witnesses. The  solution turned red.  The parse  of the  respondent was searched. The bushshirt put  on by  the respondent,  Ex. KA-22,  was  also seized and a part of the bush-shirt was washed in a solution which thereupon turned red. Thereafter Dy. S. P. Pandey made enquiry about  the 5  ten-rupee notes  given by  PW 3 on the earlier occasion  and carried  out the  search of the living room of the bungalow which was on the first floor. It is the prosecution case that the respondent provided the key of the almirah which  was in  the living  room and  the almirah was opened with  that key.  Two ten-rupees notes were found from that almirah.  The numbers  of these notes were tallied with two of  the five  numbers specified in Complaint KA-8. These notes were 1000 also seized and were placed in an envelope which was sealed. Meanwhile, the respondent had fainted. The copy of the Farad prepared at  the time  of raid  was therefore handed over to his wife after obtaining her signature on the Farad in token of  the   receipt  of   the  copy  thereof.  Thereafter  the investigation was  taken over  by PW-6 Dy. S. P. Tripathi of the Vigilance  Establishment, who interrogated the witnesses concerned and  recorded the  statements in the course of the investigation. The  sanction for  prosecuting respondent Dr. Ghosh was  obtained from  the Government  of  U.P.  and  the charge-sheet  against  the  accused  was  submitted  in  due course. At  the trial Dr. S. P. Pandey could not be examined because he  was not  alive at the relevant point of time (he was killed in the course of an encounter with dacoits before the trial  commenced). Out of the two public witnesses, one, PW-5  Ram   Singh,  has  been  examined.  The  other  public witnesses  Thakur  Prasad  has  not  been  examined  as  his evidence would  have been  of a  repetitive nature. Sham Lal was not  examined on the ground that he had been won over by the defence.  Apart from complainant, PW-3 Babulal, three of the members  of the  raiding party  viz. PW-1 Bahadur Singh,

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Inspector Vigilance Department, and PW-2 constable Bachu Lal who had posed as the brother of PW-3 and had accompanied him when he  entered the consultation room, were examined at the trial. The  defence  examined  five  witnesses.  Though  the respondent did  not himself  enter into the witnesses box to give evidence  on oath,  he was interrogated u/s. 313 of Cr. P.C. He  made his  oral statement  in  the  court  and  also submitted a  written  statement  in  order  to  explain  the circumstances appearing against him.      The learned  Special Judge  excluded from consideration the evidence  of PW-5  Ram Singh  in view  of the  criticism levelled by  the defence  in regard  to his  selection.  The learned  judge  however  considered  the  evidence  of  PW-3 complainant Babulal  as reliable.  He also  relied upon  the evidence of  PW-1 Inspector Bahadur Singh and PW-2 Constable Bachulal. Taking  into account  the totality of the evidence including  the   direct  evidence   and  the  circumstantial evidence (which  inter alia  consisted of the seizure of the incomplete form,  KA-5, from  the consultation  room of  the respondent at  the time  of the  raid) and  the  explanation offered by the respondent in regard to various circumstances appearing against him, the learned Special Judge reached the conclusion  that  the  prosecution  had  established  beyond reasonable  doubt  that  the  respondent  had  demanded  and accepted illegal gratification. The learned Special 1001 Judge thereupon  convicted the  respondent for  the  offence under Section  161 IPC as also for the offence under Section 5(1) (d)  of the  Prevention of Corruption Act. He imposed a substantive sentence  of Rigorous Imprisonment for two years and imposed  a fine of Rs. 5,000 (in default to undergo R.I. for four months). The appeal preferred by the respondent was allowed in the circumstances mentioned earlier in the course of the  judgment. For  the reasons  indicated  earlier,  the judgment rendered  by the High Court is of no assistance and we will  have to  reach our own conclusion as to whether the learned Special Judge was justified in recording the finning of guilt  and convicting  the respondent  in  the  aforesaid manner.      The learned  Special Judge  was perfectly  justified in making the  cautious approach  adopted by  him in  excluding from consideration the evidence of the public witness, PW-5, Ram Singh.  We will have also to do likewise and exclude his evidence from  consideration to be on the safe side. We will have to  examine  whether  the  learned  Special  Judge  was justified in  recording the finding of guilt on the basis of the rest  of the  evidence, and  the circumstances appearing against the  respondent, taken  along with  the  explanation offered by him.      By and  large a  citizen is  somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a  trap  arranged  even  if  illegal  gratification  is demanded by a Government servant. There are numerous reasons for the  reluctance. In  the first  place, he  has to make a number of  visits to  the office of Vigilance Department and to wait  on a  number of officers. He has to provide his own currency notes  for arranging  a trap. He has to comply with several formalities  and sign  several statements. He has to accompany the officers and participants of the raiding party and play  the main role. All the while he has to remain away from his  job, work,  or avocation.  He has to sacrifice his time and  effort whilst  doing so.  Thereafter,  he  has  to attend the  court at  the time of the trial from day to day. He has  to withstand  the searching cross-examination by the defence counsel as if he himself is guilty of some fault. In

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the result,  a citizen who has been harassed by a Government officer,  has   to  face  all  these  hazards.  And  if  the explanation offered by the accused is accepted by the court, he has  to face  the humiliation  of being  considered as  a person who  tried to falsely implicate a Government servant, not to speak of facing the 1002 wrath  of   the  Government   servants  of   the  department concerned, in  his future  dealings with  the department. No one would  therefore be too keen or too anxious to face such an ordeal.  Ordinarily, it  is only  when  a  citizen  feels oppressed by  a feeling  of  being  wronged  and  finds  the situation to  be beyond endurance, that he adopts the course of approaching  the Vigilance  Department for laying a trap. His evidence  cannot therefore  be easily or lightly brushed aside. Of  course, it  cannot be  gainsaid that  it does not mean that  the court  should be  oblivious of  the need  for caution and  circumspection bearing  in mind  that  one  can conceive of  cases where  an  honest  or  strict  Government official may be falsely implicated by a vindictive person to whose demand,  for  showing  favours,  or  for  according  a special treatment  by giving  a go-bye  to  the  rules,  the official refuses to yield.      It is  now time  to deal  with the criticism urged as a matter of  course in  the  context  of  the  police  officer leading the  raiding party-namely  that he  is an interested witness. This  is true, but only to an extent a very limited extent. He  is interested  in the  success of  the  trap  to ensure that  a citizen,  who complains  of harassment  by  a Government   officer    making   a    demand   for   illegal gratification, is  protected and  the role of his department in the protection of such citizens is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his  cap. At the same time it must be realised that it is not frequently  that  a  police  officer,  himself  being  a Government servant,  would resort  to  perjury  and  concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the  currency notes  offered by  the complainant,  it would not  be reasonable  to except the police officer to go to the  length  of  concocting  a  false  seizure  memo  for prosecuting and  humiliating him merely in order to save the face  of  the  complainant,  thereby  compromising  his  own conscience.  The  court  may  therefore,  depending  on  the circumstances  of   a  case,  feel  safe  in  accepting  the prosecution version on the basis of the oral evidence of the complainant  and  the  police  officers  even  if  the  trap witnesses turn  hostile or  are found not to be independent. When therefore besides such evidence there is circumstantial evidence which  is consistent  with the guilt of the accused and not  consistent with  his innocence,  there should be no difficulty in  upholding the  prosecution case.  The present appears to  be a  case of that nature. If the circumstantial evidence is of such a 1003 nature  that   it  affords  adequate  corroboration  to  the prosecution case,  as held by the learned Special Judge, the appeal must succeed. If on the other hand the circumstantial evidence is considered to be inadequate to buttress the oral testimony, the appeal necessarily must fail.      Two facts  have emerged  from the evidence. First, that when the fingers of the accused were dipped in the solution, the  liquid   turned  red,   evidencing  the   presence   of phenolpththalein in  powder on  the fingers  of the accused.

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The second feature of the prosecution case is the seizure of an incomplete  form of  medical certificate  which was  half filled in  the handwriting of the accused himself. It is not disputed that  this document was seized by the Investigating Officer. It  is not  disputed that  the certificate  is half filled. A part of it is admittedly filled in the handwriting of the  accused himself.  It is  not disputed  that when the blanks in  the form  were being  filled the accused abruptly stopped and did not complete the remaining part of the form. Now, the  prosecution version  is that illegal gratification was demanded  by the  accused from  the  complainant  (PW-3, Babulal) for  issuing this  medical certificate.  It is also the prosecution  case that when the agreed amount of Rs. 200 was paid  to the  accused he accepted the currency notes and put the  same in the pocket of his bush-coat. Thereafter, he started filling the form of medical certificate which was to be issued  as and  by way  of consideration  for the illegal gratification paid  to him.  When he  was in  the process of preparing this certificate, at the point of time when he had filled it  partly, the  raiding party  arrived upon the pre- agreed signal  being given.  In other  words the prosecution case is  that it  was in  these circumstances that a form of medical certificate  which  was  partly  filled  in  by  the accused and  which was  partly incomplete  was found  on the table of  the  accused  and  was  seized  from  his  private consultation room.  It must  be realised  that even the most crafty police  officer who conspired with the complainant to lay a  false case  in order  to rope  in an  innocent doctor would not be in a position to obtain a half complete medical certificate partly  filled in the handwriting of the accused himself. If the prosecution version is believed, the seizure of the  incomplete medical  certificate partly  filled in by the accused  himself leaves  no  room  for  doubt  that  the accusation is  true. It  is rarely  that  such  a  piece  of evidence would  be available  to the  prosecution. The  fact that the  form has been partly filled by the accused himself is admitted  in the  statement made by him under Section 313 of the Code of Criminal Procedure. It is an undisputed 1004 fact that  the medical certificate was being prepared at the request of  the  complainant  by  the  accused  in  his  own handwriting and that he abruptly stopped midway and left the from half-filled  and incomplete.  The  prosecution  version pertaining to  the circumstances  in  which  this  situation arose has  already been  adverted to. The defence version as to (1)  the circumstances  in which he started preparing the medical certificate  in his own writing and stopped abruptly and (2)  the circumstances  in which the said half completed certificate  happened   to  fall   into  the  hands  of  the Investigating Officer,  must now  be scrutinized with a view to  find   out  whether  the  version  passes  the  test  of probabilities unscathed. And with a view to find out whether the explanation  offered by  the defence,  in order  to move away  the   finger  of   guilt  pointed   at  him   by  this incriminating circumstance,  is good  enough. If the outcome is in  favour of  the defence, the order of acquittal can be sustained. Not  otherwise. This  is therefore,  one  of  the crucial circumstances  on which,  in a  way, the entire case turns.      Let  us   now  therefore  have  a  close  look  at  the explanation offered  by the  accused, which  may  be  quoted verbatim for the sake of preciseness:-           "Once after  finishing my  round I  was  returning      back. At  that time Babulal came to me and told that in      the present  days of  emergency he was not given leave.

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    He requested  me to  write only  this much  in the form      that his  daughter Ram  Shri is  under my  treatment so      that he  could have leave for attending his daughter. I      replied that  I will  come  back  after  performing  an      operation. You  place the  form on  table and  am  also      calling for  Bed  Head  Ticket.  Having  returned  from      operation theatre  I started filling the form and found      that the  form is  incorrect. At that time Babu Lal was      not present  there. I stopped writing the form and kept      the same  on the  table itself.  I can’t  say as to how      that from  reached to  the hands  of Shri  R.N. Pandey.      This from  is Ex.  Ka. 5. Shri R.N. Pandey used to come      to Shri B.M. Pandey."      The explanation  offered by  the  respondent  does  not carry conviction  and appears  to be  highly improbable. The respondent could  not have been unaware of the form in which the certificate  was to be issued. The from presented to him was a typed form (it has 1005 been reproduced  in extenso  in  the  earlier  part  of  the judgment) containing  about eight  lines with  blank  spaces which  were   required  to  be  filled  up.  He  would  have immediately realised  at a  bare glance  that it was not the proper form  before starting  to fill  up the  form. In  any event if he had realised that the form was not a proper form after filling  up four gaps, he would have at least conveyed to PW-3  that he  could not  issue the  certificate in  that form. It is not even his case that he did so. Besides, there was no  point or  purpose in keeping the half filled form on his table.  Why should  he have  preserved it at all ? It is inconceivable why  he should  preserve that half filled form and keep  it in  his office room on the hospital premises so that it can somehow make its way in the hands of the police. It is  also difficult  to understand  how anyone should know about the  existence of  this form, steal it, and pass it on to PW-3  or to  the police  officers so  that  it  could  be readily used in order to weave it in the story pertaining to what transpired  at the  time of  the raid.  The  respondent himself is  unable to explain how the half filled form which was lying  in his  office room  in the hospital made its way into the  hands of  the police officers. Again, it will have to be  assumed  that  the  police  officers  from  the  very beginning knew  that the  respondent would  not  accept  the currency notes  from the  complainant and they would have to ’frame’ him  by preparing  a Farad  in which  false recitals regarding seizure  of the  form were to be incorporated. One does hot  come across  such co-incidences  in  the  ordinary course of  life. On probabilities it is well-nigh impossible to believe  that so  many co-incidences  could have occurred namely, (1)  the respondent  could not realise that the form was not a correct form till he had filled up the particulars relating to  the name  of  the  patient,  the  date  of  the admission of the patient (which would have to be ascertained from the record), and the ailment from which the patient was suffering. (2)  It is  also difficult  to visualize  that at that point  of time  on realizing  the mistake,  instead  of tearing ’off’ the form, he would preserve the half completed form, and  would go  away from  the office keeping it on the top of  the table,  so that some one could conveniently take it away.  (3) That such a form should conveniently fall into the hands  of somebody  inimical to  him who  could do quick thinking, conceive a design to trap him, and preserve it for future use to implicate him and (4) that such a person would know PW-3  and the police officers and pass it on to them to use it  to ’frame’  the respondent.  Nobody could have known

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that such  a form  would be  lying on his table. Even if any member of  the staff  had found it on the table he would not have realised that 1006 it could be utilised for trapping the respondent through PW- 3. It  is too  much to  believe that  someone interested  in framing the  respondent had  an easy  access to  his  office room, could  enter his  office room  in the  absence of  the respondent, and  take away  such a paper lying on his table. And that  such a person would contact PW-3, Babulal, and the police officers,  and plant in their mind the idea that this document could  be availed  of for  framing the  accused. It does not  happen  in  real  life.  On  the  other  hand  the prosecution version  is very natural and probable. The story regarding the  demand for Rs. 200 was mentioned in Complaint Ka-14 which  was forwarded  by the Vigilance Commissioner to the Government for obtaining sanction. The evidence of PW-3, Babulal, and  the evidence  of PW-2,  Police Constable Bachu Lal, who  accompanied him  goes to  show that as soon as the currency notes were handed over by PW 3 to the respondent he started filling  up the  form. It  was at that point of time that the  signal was  given and  the raid  materialized. The respondent was  caught red  handed while actually engaged in filling up  the form,  now that his demand was met. The form was seized under a Farad and a copy of this Farad was handed over  immediately  to  the  wife  of  the  respondent  after obtaining her  signature on  the original  Farad in token of having received  the copy.  This would go to show that there was no  room or  scope for any manipulation after the police officer left  the consultation  room of the respondent after the raid.  It was  but natural  for the  respondent to start filling up  the form  as soon  as the amount demanded by him was paid.  The fact that he had to stop in the midst when he was engaged  in completing  the form  provides a very strong corroboration to the version of PW 2 and PW 3. And when this evidence is  weighed in the light of the explanation offered by the  respondent, which  fails  to  carry  conviction  and sounds extremely  improbable,  the  circumstantial  evidence provided thereby  assumes very great importance. The learned Special Judge was therefore perfectly justified in attaching great importance  to this  piece of circumstantial evidence. As discussed  earlier, it  is very difficult to believe that PW 3,  a poor mill worker, would go to the length of framing a Medical Officer of the Hospital where his child was taking treatment. On  probabilities it  is not  possible to believe that he would go to the length of securing currency notes to the tune  of Rs.  200 to  provide the  same  to  the  police officers for  arranging the  trap, and  to expose himself to the hazards  of becoming a witness in a criminal trial, just in order to rope in the respondent against whom there was no personal enmity.  On the  other hand it is understandable if he was 1007 exasperated when  he felt  that his  child was  being denied proper medical  treatment by  the  doctor  who  insisted  on illegal gratification  under one  pretext or another. And on account  of   the  strong   feeling  of   injustice  it  was understandable if  he lodged  a complaint with the Vigilance Department out  of exasperation. The respondent has no other explanation to  except and save to the effect that PW 3 must have done  it at  the  instance  of  one  of  his  ambitious colleagues  who   was  junior  to  him.  This  is  what  the respondent says in his statement in this connection:-           "Baboo Lal  had gone wrongly under this impression      that  his  daughter  had  not  been  benefited  by  the

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    treatment.           When she was brought in the hospital her condition      was most  precarious and  was unable to speak. She even      was not  in a position to tell her grief. The treatment      recovered her  to this  extent that  she  regained  her      senses and  was able to talk and cry about her pain and      grief.           Having regained  sensibility she  started  feeling      pain and she used to cry. Baboo Lal hardly used to meet      me. I could see him in the hospital only once. Whenever      I went to check this patient at the time of round Baboo      Lal never  was there. He never gave me this opportunity      to convey  him that  how  much  the  patient  has  been      benefited and  recovered by  the treatment.  Baboo  Lal      used to  come at  evening and used to return back after      meeting with  doctors. Dr.  B. M.  Pandey  who  was  my      immediate junior used to sit in my office in my absence      because  we  both  had  a  common  office.  Dr.  S.  P.      Bhatnagar Pathologist had checked Kumari Ramsri and his      report is present in the file. Dr. B. M. Pandey and Dr.      S. P.  Bhatnagar were close friends. S. P. Bhatnagar of      Vigilance department is related to I. P. Bhatnagar. Dr.      B. M.  Pandey and  R. D.  Pandey Director Vigilance are      both residents  of Distt.  Basti and are collaterals in      family.           Once Dr. B. M. Pandey had attempted to dislodge me      from U.  H. M.  Hospital and  suddenly I got a transfer      order. All  the ministers,  M. L.  As and Dy. Ministers      who were Pandeys were in the back of Shri B. M. Pandey.      My 1008      transfer was  stayed by the Court. Meanwhile, Dr. B. M.      Pandey was posted in my department.           Dr. B.  M. Pandey  was posted  on run way duty. He      was (Sic)  not (Sic)  of beds,  but  he  had  raised  a      dispute regarding  allotment of beds. Thereafter Dr. R.      Shingal told  me that  he had been pressurised too much      and he  allotted ten  beds of  the Verandh to Dr. B. M.      Pandey. But  B. M.  Pandey was  not allotted any bed in      the family  ward. These  beds of  family ward  remained      under me.  It might  be possible that Baboo Lal usually      visited there and had meetings with Dr. Pandey."      So also  it is  not possible  to believe  that all  the police officers  had from the beginning conspired to rope in the respondent  by hook  or crook  and had carried with them the half  complete form  which was  acquired in a fortuitous manner to  the consulting  room  in  order  to  prepare  the fictitious Farad at the time of the raid. It is not possible to believe that nothing had transpired at the raid, and yet, an imagined  account of  the occurrence  and the seizure was incorporated in  the Farad  with a view to falsely implicate the respondent.  The explanation of the respondent as to why the police  officers  should  have  falsely  implicated  the respondent is also not convincing. This is what he says:           "A person  by the name of Nathu had died in police      lock up  Hahi Police  Station. In  that case Shri R. K.      Shukla and other police officials were involved. A vast      enquiry was  done in  that case. The post-mortem of the      dead body  of Nathu  was performed  by me.  On that day      Shri R.  N. Pandey  met me  and presurrised  me to give      post-mortem report  to the  effect that no reason could      be ascertained  of  causing  death.  I  told  him  that      whatever will  be right and truth I would be giving the      same in my report. Shri R.N. Pandey told me that enmity      with police  is not  good. About 18-20 police employees

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    were suspended on my report. That case is still pending      against the police officials. I had performed the post-      mortem in  Dec. 1974,  and the  revenge of the same was      taken during  emergency by  Shri  R.  N.  Pandey  while      having league  with Dr. B.M. Pandey by laying a trap on      me. Baboo Lal was made a willing stooge." 1009      The incident  was a  relatively stale  one  and  it  is highly improbable that the entire police force would nurse a grievance on this score and wait for such an opportunity. Be it realized  that the  child of PW 3 was genuinely afflicted with bone  T.B. and  was a  genuine patient at the hospital. The defence  version is therefore altogether improbable. The fact that  the fingers  of the respondent were dipped in the solution and  the solution  turned into  red indicating that the flingers had come in contact with phenolphthalein powder is not disputed by the respondent, but he does not offer any explanation. This all that he says:-           "Q. No.  11: It has come in the evidence that your      fingers, pocket  of the shirt from which currency notes      were recovered  were both  separately dipped and washed      in the  solution of Sodium Carbonate. The colour of the      solution turned  red. Both the solutions were sealed in      separate bottles  which are  Ext. 24  and Ext. 25. What      you have to say in this regard ?           Ans: I  can’t say  of what  contents this solution      was prepared.  When my  fingers were got dipped in that      solution the  colour of  the same  turned red.  My bush      shirt had  been made  to put  off by me. In my presence      the pocket  of the  bush-shirt was  not dipped  in  the      solution. I don’t know whether they had sealed this red      solution in bottles or not."      Taking an  overall view  of the evidence of PW 1, PW 2, PW 3, and the circumstantial evidence, it is not possible to believe that  the raid  had proved abortive and yet everyone conspired  together   in  order   to  falsely  rope  in  the respondent.      Counsel for  the respondent  contended that  it was not probable that  PW 3  would agree  to pay Rs. 250 in order to secure a  loan of  Rs. 500.  It must  be realised  that  the amount which was being demanded was in the background of the fact that  the complainant felt that his child was not being given proper  treatment and  unless money  was paid  to  the respondent his child would not get proper treatment. Nor can one be  oblivious of the evidence of PW 3 to the effect that he was  being asked  to remove  his child  from the hospital even though she had not recovered. Evidently the request for the  issuance   of  the   certificate  merely   provided  an opportunity 1010 which was  seized upon  by the  respondent for  making PW  3 yield to  this demand.  Again, the complainant had no option but to  agree to give the amount demanded from him or to lay a trap,  having regard  to the fact that he was feeling that his child  would not  get proper treatment unless the demand was  acceded  to.  If  the  complainant  was  interested  in inventing a  story nothing  could prevent him from inventing the story to the effect that the demand was being made for a smaller amount  of say  Rs.  50  or  so.  This  circumstance therefore cannot  detract from  the overall  effect  of  the testimony of  PW 3  Baboo Lal  and PW  2 Bachu  Lal who were present at  the time  of raid and the clinching circumstance as  regards   the  seizure  of  the  certificate  which  was admittedly filled  in partly  by the  respondent in  his own hand. The  evidence of  PW-1 and  PW-2 as also of PW-3, thus

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stands fully  corroborated by  the  circumstantial  evidence which lends  assurance to  it. Under  the circumstances  the finding of guilt and the order of conviction recorded by the learned Special  Judge was  unexceptionable. The High Court, as we  pointed out  earlier, set  aside this finding under a serious misconception, on an altogether untenable reasoning, which even  the counsel for the respondent has not been able to support.      Turning to  the question  of sentence, having regard to the fact that the respondent had to undergo the tension of a pending trial  and a  pending appeal  for six years, and the fact that  it will  have adverse  impact on  his  employment after 23  years, of  service, no  useful  purpose  would  be served by  imposing  a  long  term  of  jail  sentence.  The substantive sentence  of  two  years’  R.I.  is,  therefore, reduced to  one of  6 months’ R.I. The appeal is accordingly allowed, the  order of  acquittal rendered by the High Court is set  aside, and  the finding  of guilt  and the  order of conviction  recorded   by  the   learned  Special  Judge  is restored, but  the sentence  is modified  to  the  aforesaid extent. The  respondent shall  surrender to bail in order to undergo the substantive sentence imposed on him. S.R.                                         Appeal allowed. 1011