BANARSI DASSversusSTATE OF HARYANA

                   [2010] 4 S.C.R. 383


                     BANARSI DASS                             A
                            v.
                   STATE OF HARYANA
            (Criminal Appeal No. 630 of 2003)

                      APRIL 5, 2010
                                                              B
    [AFTAB ALAM AND SWATANTER KUMAR, JJ.]

     Prevention of Corruption Act, 1947 - s.5(2) - Penal
Code, 1860 - s.161 - Essential ingredients of s.5(2) of the
Act and s.161 /PC - Held: To constitute offence under s.5(2) C
of the Act and s.161 /PC, prosecution has to prove demand
and acceptance of. illegal gratification by the accused in
discharge of official duties - Mere recovery of money would
not lead to inference of such demand and acceptance - On
facts, trap laid down and money recovered from pocket of D
accused - Complainant and another prosecution witness
however became hostile witnesses - In these circumstances,
prosecution failed to establish the offence against the
accused, that he accepted the money voluntarily as illegal
gratification - Accused entitled to acquittal on technical E
grounds.

    Administration of Criminal Justice: Conviction of an
accused cannot be founded on the basis of inference -
Offence should be proved against the accused beyond           F
reasonable doubt - Criminal jurisprudence.

     Prosecution case was that the land belonging to the
mother of PW-2 was wrongly recorded in the name of
tenants. PW-2 approached the appellant who was posted
as Patwari during relevant time for making the necessary      G
changes in the records. PW-2 also filed NOC obtained
from the tenants. The appellant allegedly demanded
illegal gratification of Rs.900 for making rectification in
the records. The deal was finally struck at Rs.400 in the
                             383                              H
    384      SUPREME COURT REPORTS            [2010] 4 S.C.R.
                                                                /




A   presence of PW-4, a taxi driver who was hired by PW-2
    while visiting the appellant. PW-2 reported the matter to
    police. Her statement was recorded and a trap was laid.
    PW-10, the SOM and PW-11, the DSP signed the four
    currency notes of Rs.100 each. PW-2 accompanied by
B PW-4 left for Patwar-khana. She took Rs.400 duly signed
    by the officers to pay gratification to the Patwari. The
    money was given to the appellant and thereafter PW-4
    informed PW-10 and PW-11. They rushed to the spot in
    a jeep. On search of the appellant, four signed currency
c notes were recovered from the front left pocket of his
    shirt. Recovery memo for the same was prepared. The
    application of tenants was also found on the table of the
    appellant in Patwar-khana. After conclusion of the trap,
    the appellant was arrested and a case was registered
  . under Section 161 IPC and under Section 5(2) of the
0
    Prevention of Corruption Act, 1947.

       The prosecution examined four witnesses PW-2, PW-
  4, PW-10 and PW-11. Out of. these material witnesses,
  PW-2 and PW-4 both were declared hostile. PW-2 stated
E 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. She further stated that she had
  learnt from co-villagers that Rs.300-400/- as reward was
F to be given for such a job. She also stated that she had
  signed the memos but she did not read them as she was
  confused.

       The Special Judge convicted the appellant under
  Section 161 IPC and under Section 5(2) of the Prevention
G of Corruption Act, 1947 despite contradictions in the
  statements of prosecution witnesses. High Court upheld
  the order of conviction. Hence the appeal.

          Allowing the appeal, the Court
H
       BANARSI DASS v. STATE OF HARYANA                  385


      HELD: 1.1. The High Court fell in error in drawing the    A
 inference of demand and receipt of the illegal gratification
from the fact that the money was recovered from the
accused. 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            B
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. Applying these tests       c
to the facts of the present case, PW-10 and PW-11 were
neither the eye-witnesses to the demand nor to the
acceptance of money by the accused from PW-2. Both
PW-2 and PW-4 made statements before the Court which
were quite different. from the one made by them before          0
the police during the investigation. PW-4 completely
denied the incident and refused to acknowledge. that the
sum of Rs. 900/- 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 did not             E
state the complete truth before the Court. Though after
being declared hostile in her cross-examination she
supported some part of the prosecution case, but she
virtually denied the essential ingredients to bring home
the guilt of the accused either under Section 5 (2) of the
Prevention of Corruption Act, 1947 or under Section 161         F
of the IPC. She seemed 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. [Paras 9 and 1O] [395-A-H]
                                                                G
     1.2. The statement of PW-10 and PW-11 with regard
to demand and acceptance was 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
                                                                H
   386     SUPREME COURT REPORTS              [2010] 4 S.C.R.


A the pocket of the accused. The recovery memo was duly
  attested by witnesses. Thus, it cannot be said that the
  recovery from the pocket of the accused was of no
  consequence. However, to constitute an offence under
  Section 161 IPC, it is necessary for the prosecution to
B 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
c the accused. PW-2 was educated up to 4th Class only.
  In her cross-examination she did support a few facts of
  the prosecution but on the material circumstance/fact she
  completely took a somersault while making a statement
  before the Court. PW-4 besides disowning his statement
  under Section 161 IPC in its entirety, stated that he was
0
  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 Cr.P.C., did C'dmit that PW-2 (complainant) came to
E her office with the police but stated that no other persons
  had accompanied them. PW-2 insisted on changing 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 also stated in her
F statement that she kept the money on the table after some
  altercation with the accused. In these circumstances,
  prosecution failed to establish the offence against the
  accused, that he accepted the money voluntarily as illegal
  gratification. The effect of the statement of PW-2 and PW-
G 4 had a substantial adverse effect on the case of the
  prosecution. There were other witnesses examined by the
  prosecution who were formal witnesses but in the
  absence of support of PW-2 ar.d PW-4, the prosecution
  could not establish the charge (demand and acceptance
H of illegal gratification by the accused), thus entitling him
       BANARSI DASS v. STATE OF HARYANA                    387


to some benefit on the technical ground of two                     A
witnesses. [Paras 10, 11, 15 and 16] (395-C-H; 396-A-E;
399-E-H; 400-A-F]

     C.M. Girish Babu v. CBI, Cochin, High Court of Kera/a
(2009) 3 SCC 779; MK. Harshan v. State of Kera/a 1996 (11)         B
SCC 720; Sita Ram v. State of Rajasthan 1975 (2) SCC 227,
relied on.

     Aditya Nath Pandey v. State of UP. (2000) 9 SCC 206,
referred to.
                                                                   c
                      Case Law Reference:
     (2009) 3 sec 119          relied on             Para 1
     (2000) 9 sec 206          referred to           Para 1
     1996 (11) sec 120         relied on             Para 11       D

     1975 (2) sec 221          relied on             Para 13

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 630 of 2003.
                                                                   E
    From the Judgment & Order dated 20.11.2002 of the High
Court of Punjab & Haryana at Chandigarh in Crl. Appeal No.
83-SB of 1988.

    Jaspal Singh, Jaspreet Gogia for the Appellant.                F

    Ranjit Rao for the Respondent.

    The Judgment of the Court was delivered by

     SWATANTER KUMAR, J. 1. The present appeal under               G
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     H
    388         SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A 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 Corruption Act, 1947 (For short, 'the
B
                 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 Kera/a, [2009 (3) SCC 779].

          (b)    The High Court as well as the trial Court have
c                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
D                recovery has not been proved in accordance with
                 law. These factors 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
E
                 unreasonably excessive. The appellant has faced
                 the agony of trial and thereafter other proceedings
                 arising therefrom for the last 20 years. In these
                 circumstances, the appellant has even faced great
                 hardship having lost his livelihood which adversely
F                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)
                 sec 206], it is contended that the sentence
                 undergone would suffice and meet the ends of
G                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
H judgment of conviction and sentence is duly supported by the
                                                ~   -
       BANARSI DASS v. STATE OF HARYANA                      389
            [SWATANTER KUMAR, J.]

oral and documentary evidence produced by the prosecution.           A
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          B
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.
                                                                     c
      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       D
 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        E
 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    F
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              G
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        H
    390    SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A 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
B 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
c 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
D 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
E 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.

F      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, ASl(PW-9), Shri S.K. Joshi
G (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 dllegations leveled against him and claimed to be
  innocent.
H
        BANARSI DASS v. STATE OF HARYANA                     391
             [SWATANTER KUMAR, J.]
      5. The special Judge, Ambala, by order dated 30.01.1988       A
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     B
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       C
 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         D
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-   E
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      F
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           G
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      H
    . 392       SUPREME COURT REPORTS              (2010] 4 S.C.R.


A   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
s   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
c   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-
0
    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
E 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
F 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
G 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
H
      BANARSI DASS v. STATE OF HARYANA                     393
           [SWATANTER KUMAR, J.]
in the Patwar-khana when the money was demanded and A
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 B
contradicted, as the case may be, by their earlier statements
recorded under Section 161 of the l.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 C
     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 D
     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
     no,t recording the change of girdawari in the name of her E
     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 F
     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 G
     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 H
    394       SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A          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
B         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
c         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,
D
          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
E         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
F         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".

G        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
H   finding of guilt against the accused. The Court remained
       BANARSI DASS v. STATE OF HARYANA                      395
            [SWATANTER KUMAR, J.]

uninfluenced by the fact that the shadow witness had turned          A
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        B
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          c
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    0
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          E
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.           F
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)       G
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                 H
    396      SUPREME COURT REPORTS                     [2010] 4 S.C.R.


A 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
B 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
c 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
D 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
E 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
F        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
G
        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
H
       BANARSI DASS v. STATE OF HARYANA                       397
            [SWATANTER KUMAR, J.]

    put in the drawer as an illegal gratification. Unfortunately,     A
    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            B
    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   C
    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
                                                                      0
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 ~hat 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:                      E

    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         F
    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        G
    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
                                                                      H
    398       SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A         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)

B               "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
c         contention raised by the learned counsel: (Madhukar case,
          sec   p. 577, para 12)

                  '12. The premise to be established on the facts for
          drawing the presumption is that there was payment or
D         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
E         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
F         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
G         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
H
       BANARSI DASS v. STATE OF HARYANA                      399
            [SWATANTER KUMAR, J.]

accused in the absence of any evidence to prove payment of           A
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.                    ·
                                                                     B
      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     C
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      D
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.         E
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
~igned them without reading the same. She was educated up            F
to 4th Class only. In her cross-examination she does support a
few facts of the prosecution but on the material circumstance/
fa~t 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   G
that hEl 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     H
    400      SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A other persons had accompanied them. PW-2 insisted on
  changing 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
8 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
C 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
D 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
E 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
F l.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.
G 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.
H
       BANARSI DASS v. STATE OF HARYANA                     401
            [SWATANTER KUMAR, J.]
                                                                    A
     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         B
leaving the parties to bear their own costs. Bail bonds, if any,
furnished by the appellant be released.

D.G.                                           Appeal allowed.