MUKUT BIHARI & ANR.versusSTATE OF RAJASTHAN

                         [2012] 6 S.C.R. 710


A                      MUKUT BIHARI & ANR.
                                   v.
                      STATE OF RAJASTHAN
                 (Criminal Appeal No. 870 of 2012)
                            MAY 25, 2012
B
         [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]

        Prevention of Corruption Act, 1988:

c      ss. 7 and 13(1)(d) rlw. s. 13(2) - Prosecution under rlw s.
  1208 /PC - Demand and acceptance of bribe - Trap - Seizure
  of tainted money - Conviction by trial court and sentence of
  2 years RI - Conviction and sentence confirmed by High
  Court - On appeal, held: Conviction justified - Demand as well
0 as acceptance of bribe adequately proved - The trap was
  proved by the depositions of prosecution witnesses including
  independent witnesses - Sentence reduced to 1 year in view
  of the fact that the accused lost their services; that the case
  was two .decades old; that the accused were suffering from
E serious ailments and that the accused had already served six
  months imprisonment - Penal Code, 1860 - s. 1208 -
  Sentence/Sentencing.

       ss. 7, 13 and 20 - Demand of illegal gratification is sine
  qua non for constituting an offence under the Act - Mere
F receipt of amount is not sufficient for fasten the guilt, in
  absence of any evidence with regard to demand and
  acceptance of the amount as illegal gratification - The burden
  rests on the. accused to displace the statutory presumption
  raised u/s. 20 through direct or circumstantial evidence that
G the money was accepted other than as a motive or reward as
  referred to in s. 7 of the Act - The court is required to consider
  the explanation of the accused, on the touchstone of
  preponderance of probability and not on the touchstone of
  proof beyond all reasonable doubt - Evidence Presumption.
H                                 710
   MUKUT BIHARI & ANR. v. STATE OF RAJASTHAN 711

      Criminal Trial - Bribery case - Need for corroboration of     A
 complainant's version by another witness - Held: A shadow
 witness is desirable in a trap parly, but its mere absence would
 not vitiate the whole trap proceedings - Evidence.

      Appellants-accused were prosecuted u/ss. 7 and                8
  13(1)(d) r/w s. 13(2) ands. 1208 IPC. The prosecution case
  was that PW-1 filed a complaint against the accused-
  appellant No. 1 that he demanded Rs. 100/- as bribe for
  issuing discharge ticket for his (complainant's) father, as
· he was discharged from the hospital in which the                  C
  appellants-accused were the employees. A trap was
  arranged, whereby the complainant met appellant No. 1
  and had conversation with him, and thereafter the
  complainant handed over the tainted money to appellant
  No. 2 at the instance of appellant No. 1. The trap party
  arrested both the appellants immediately. Trial court             D
  convicted the appellants and sentenced them to 2 years
  RI. High Court confirmed the conviction and sentence.
  Hence the present appeal.

      In appeal to this Court appellants contended that for         E
 constituting an offence under Prevention of Corruption
 Act, the prosecution has to prove the demand of illegal
 gratification; that recovery of tainted money or mere
 acceptance thereof is not sufficient to fasten the criminal
 liability; that the trap should be supported by an                 F
 independent eye-witness; that interested witness should
 be corroborated; that the conversation between the
 complainant and the accused should have been heard by
 the Panch witness; and that if two views are possible, the
 one in favour of the accused should prevail.
                                                                    G
     Dismissing the appeal, the Court

     HELD: 1.1 Demand of illegal gratification is sine qua
 non for constituting an offence under the Prevention of
                                                                    H
    712     SUPREME COURT REPORTS           [2012] 6 S.C.R.


A Corruption Act, 1988. Mere recovery of tainted money is
  not sufficient to convict the accused, when the
  substantive evidence in the case is not reliable, unless
  there is evidence to prove payment of bribe or to show
  that the money was taken voluntarily as bribe. Mere
B receipt of amount by the accused is not sufficient to
  fasten the guilt, in the absence of any evidence with
  regard to demand and acceptance of the amount as illegal
  gratification, but the burden rests on the accused to
  displace the statutory presumption raised u/s. 20 of the
c Act, by bringing on record evidence, either direct or
  circumstantial, to establish with reasonable probability,
  that the money was accepted by him, other than as a
  motive or reward as referred to in Section 7 of the Act.
  While invoking the provisions of Section 20 of the Act, the
D court is required to consider the explanation offered by
  the accused, if any, only on the touchstone of
  preponderance of probability and not on the touchstone
  of proof beyond all reasonable doubt. However, before
  the accused is called upon to explain as to how the
E amount in question was found in his possession, the
  foundational facts must be established by the
  prosecution. The complainant is an interested and
  partisan witness concerned with the success of the trap
  and his evidence must be tested in the same way as that
  of any other interested witness and in a proper case, the
F court may look for independent corroboration before-
  convicting the accused person. [Para 8] [719-AlF]

       Ram Prakash Arora v. The State of Punjab AIR 1973 SC
  498; SurajMa/ v. The State (Delhi Admn.) AIR 1979 SC 1408;
G T. Subramanianv. The State of T.N. AIR 2006 SC 836:2006
  (1) SCR 180; A. Subairv. State of Kerela (2009) 6 SCC 587;
  State of Maharashtra v. Onyaneshwar Laxman Rao
  wankhede (2009) 15 sec 200: 2009 (11) SCR 513; C.M.
  Girish Babu v. CBI, Cochin, High Court of Kera/a AIR 2009
H
 MUKUT BIHARI & ANR. v. STATE OF RAJASTHAN             713


SC 2022: 2009 (2) SCR 1021; State of Kera/a and Anr. v.       A
GP. Rao (2011) 6 SCC 450: 2011 (6) SCR 864 - Referred
to.

     1.2 In the instant case, there are concurrent finding
of facts that appellant No. 1 asked for bribe as stated by
                                                           8
PW.1. It is duly supported by S.H.O. (PW.10), the leader
of the trap party as he deposed that persons sitting there
asked for money. The acceptance had duly been
corroborated by PW.3, who deposed that the money was
lying on the table. Constable (PW.7) stated that he saw C
appellant No. 2 counting the money. The trap stood
proved by the depositions of PW.1, PW.3, PW.6, PW.7 and
PW.10. All the witnesses narrated fully how the trap was
conducted from the very beginning till the seizure of the
tainted money including the making of seizure memos
etc. PW.5 admitted the practice of donations by patients. D
PW.3 and PW.6 were independent witnesses. [Para 6]
[718-C-E]

     1.3 The plea that complainant's version required
corroboration in all circumstances, in abstract, would        E
encourage the bribe taker to receive illegal gratification
in privacy and then insist for corroboration in case of the
prosecution. Law cannot countenance such situation.
Thus, it is not necessary that the evidence of a reliable
witn.ess is necessary to be corroborated by another           F
witness, as such evidence stands corroborated from the
other material on record. Therefore, it is always desirable
to have a shadow witness in the trap party but mere
absence of such a witness would not vitiate the whole
trap proceedings. [Paras 10 and 14] [720-F-H; 722-A-B]
                                                              G
    Pana/al Damodar Rathi v. State of Maharashtra AIR
1979 SC 1191; Smt. Meena Ba/want Hemke v. State of
Maharashtra AIR 2000 SC 3377: 2000 (3) SCR 12; Chief
Commercial Manager, South Central Railway, Secunderabad
and Ors. v. G. Ratnam and Ors. AIR 2007 SC 2976: 2007         H
    714      SUPREME COURT REPORTS              [2012] 6 S.C.R.

A (9) SCR 259; Mani Shankar v. Union of India and Anr. (2008)
  3 SCC 484:2008 (3) SCR 871 • referred to.
         1.4 In the instant case, there is no contradiction in the
    deposition of the witnesses. The witnesses have
    truthfully deposed that they did not hear the conversation
8   between the accused and the complainant. Therefore,
    their version is without any embellishment and
    improvement. There could be no reason/motive for PW.1
    to falsely enrope the appellants in the case. [Para 15)
    [722-A-C]
c
       1.5 The courts below considered the facts properly
  and appreciated the evidence in correct perspective and
  then reached the conclusion that the charges stood fully
  proved against the appellants. The explanation furnished
0 by the appellants that they had falsely been enroped due
  to enmity could not be proved for the reason that no
  evidence could be brought on record indicating any
  previous enmity between the complainant and the
  appellants nor any evidence was available to show that
E the complainant was not satisfied with the treatment given
  to his father and he could act with some oblique motive
  in order to falsely implicate the appellants. Thus, under
  the garb of donation, he had offered the tainted money
  to the appellants and got them arrested. [Para 7) [718-F-
F H; 719-A]
        C.M. Sharma v. State of A.P. Th. l.P. AIR 2011 SC 608:
    2010 SCR 1105 - relied on.
       2. In view of the facts that the incident occurred about
  two decades ago and the appellants suffer from severe
G ailments, they have lost their service long ago and
  suffered the agony of protracted litigation, the appellant
  No.1 has been suffering from acute pancreatitis ilnd both
  the appellants have served the sentence for more than .
  six months, their sentence is reduced to one year. [Para
H 15] [722-E-F]
 MUKUT BIHARI & ANR. v. STATE OF RAJASTHAN                715

                     Case Law Reference:                         A

    AIR 1973 SC 498           Referred to          Para 8
    AIR 1979 SC 1191          Referred to          Para 8
    AIR 1979 SC 1408          Referred to          Paras 8       B
                                                   and 10
    2000 (3) SCR 12           Referred to          Paras 8
                                                   and 10
    2006 (1) SCR 180          Referred to          Para 8        c
    2009 (11) SCR 513         Referred to          Para 8
    2009 (2) SCR 1021         Referred to          Para 8
    2011 (6) SCR 864          Referred to          Para 8
                                                                 D
    2010 SCR 1105             Relied on            Para 9
    2007 (9) SCR 259          Referred to          Para 12
    2008 (3) SCR 871          Referred to          Para 13

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal             E
No. 870 of 2012.

    From the Judgment and Order dated 12.10.2011 of the
High Court of Judicature for Rajasthan at Jaipur Bench in S.B.
Criminal Appeal No. 726 of 2001.                                 F

    Shobha, Raghav Pandey for the Appellants.

    Kunal Verma, lrshad Ahmad for the Respondent.

    The Judgment of the Court was delivered by                   G

     DR. B.S. CHAUHAN, J. 1. This appeal has been
preferred against the judgment and order dated 12.10.2011
passed by the High Court of Judicature at Rajasthan (Jaipur
Bench} in S.B. Criminal AppeaLNo.726 of 2001, by which it has
                                                                 H
    716          SUPREME COURT REPORTS             [2012] 6 S.C.R.


A affirmed the judgment and order of the trial Court dated
  7.9.2001 passed by the Special Judge (ACD Cases), Jaipur
  in Regular Special Criminal Case No.26 of 1995 (State of
  Rajasthan v. Mukut Bihari etc.) whereby the appellant Mukut
  Bihari stood convicted for the offences punishable under
B Sections 7 and 13(1)(d) read with Section 13(2) of Prevention
  of Corruption Act, 1988 (hereinafter called the "Act 1988") and
  under Section 120B of Indian Penal Code, 1860 (hereinafter
  called 'IPC') and has been awarded the punishment of rigorous
  imprisonment for a period of 2 years for each count; whereas
c appellant Kalyan Mal has been convicted for the offences
  punishable under Section 13(1)(d) read with Section 13(2) of
  the Act 1988 and under Section 120B IPC and he has also
  been awarded the punishment of rigorous imprisonment for a
  period of 2 years on each count.
D           2. Facts and circumstances giving rise to this case are
    that:

       A Rafiq (PW.1) filed a complaint on 16.11.1994 before
  the Anti-Corruption Department (hereinafter called "ACD"), Tonk
E that his father Deen Mohd. (PW.8) underwent the treatment in
  Sahadat Hospital, Tonk for urinary infection from 24.10.1994
  to 12.11.1994. He stood discharged on 12.11.1994, however
  he was not issued the discharge ticket and for which Mukut
  Bihari-accused demanded Rs.100/- as bribe for issuance of
F the same. The said demand was made on 14.11.1994 when
  the complainant (PW.1) offered Rs. 75/- and 2 Kilogram of
  Ladoo.

       B. In view of the aforesaid complaint, a trap was arranged
  and as per plan, the complainant met Mukut Bihari, appellant
G in the staff room of the surgical ward of the hospital and had
  conversation with him. Both of them went to the store room
  wherein the complainant handed over Rs.100/- to Kalyan Mal,
  appellant at the instance of Mukut Bihari, appellant. The trap
  party arrested both the appellants immediately and the case
H was registered against them. After completing the investigation,
         MUKUT BIHARI & ANR. v. STATE OF                      717
         RAJASTHAN [DR. B.S. CHAUHAN, J.]
charge sheet was filed against both of them. During the course        A
of trial, a large number of witnesses were examined and on
conclusion of the trial, the court found them guilty and imposed
the punishment as referred to hereinabove vide judgment and
order dated 7.9.2001.
                                                                      B
  . C. Aggrieved, the appellants preferred Criminal Appeal
No. 726 of 2001 before the Rajasthan High Court which has
been dismissed vide impugned judgment and order dated
12.10.2011.

     Hence, this appeal.                                              c
     3. Ms. Shobha, learned counsel appearing for the
appellants, has submitted that for constituting an offence under
the Act 1988, the prosecution has to prove the demand of illegal
gratification. Recovery of tainted money or mere acceptance           D
thereof is not en9ugh to fasten the criminal liability as the money
could be offered voluntarily and the accused may furnish a
satisfactory explanation for receipt of the money. The trap case
should be supported by an independent eye-witness. The
deposition of an interested witness requires corroboration. The
                                                                      E
conversation between the accused and the complainant at the
time of demand and accepting the money must be heard/
recorded by the Panch witness. If two views are possible, then
the one in favour of the accused should prevail. In the instant
case then the prosecution failed to prove the foundational fact
beyond reasonable doubt. Therefore, the appeal deserves to            F
be allowed.

     4. On the contrary, Shri Kuna! Verma, learned counsel for
the State of Rajasthan, has vehemently opposed the appeal
contending that acceptance of tainted money is an ample proof         G
for conviction of the offences punishable under the Act 1988. It
is not necessary in the trap cases that there must be a shadow
witness and conversation between the complainant and the
accused should be recorded or heard by the independent
witness: In absence of the shadow witness, for any reason,            H
    718      SUPREME COURT REPORTS                (2012] 6 S.C.R.

A accused cannot insist that demand and acceptance is required
  by the statute to be proved by corroboration. In the instant case,
  the appellant no.2 has accepted the money at the instance and
  in the presence of appellant no.1. There is no reason to
  disbelieve the testimony of the complainant nor the recovery of
B the tainted money can be doubted. Thus, the appeal lacks merit
  and is liable to be dismissed.

         5. We have considered tlie rival submissions made by
    learned counsel for the parties and perused the record.

C      6. There are concurrent finding of facts that appellant Mukut
  Bihari asked for bribe as stated by Rafiq (PW.1). It is duly
  supported by Keshar Singh, S.H.O. (PW.10), the leader of the
  trap party as he deposed that persons sitting there asked for
  money. The acceptance had duly been corroborated by R.C.
o Pareek (PW.3), who deposed that the money was lying on the
  table. Zaheer Ahmed, Constable (PW.7) stated that he saw
  Kalyan Mal counting the money. The trap stood proved by the
  depositions of Rafiq (PW.1 ), R.C. Pareek (PW.3), Mohd.
  Rasheed (PW.6), Zaheer Ahmed (PW.7) and Keshar Singh
E (PW.10). All the witnesses narrated fully how the trap was
  conducted from the very beginning till the seizure of the tainted
  money including the making of seisure memos etc. Dr. Savel
  (PW.5) admitted the practice of donations by patients. Mr. R.C.
  Pareek (PW.3) and Mohd. Rasheed (PW.6) have been
F independent witnesses.

       7. The courts below considered the facts properly and
  appreciated the evidence in correct perspective and then
  reached the conclusion that the charges stood fully proved
  against the appellants. The explanation furnished by the
G appellants that they had falsely been enroped due to enmity
  could not be proved for the reason that no evidence could be
  brought on record indicating any previous enmity between the
  complainant and the appellants nor any evidence was available
  to show that the complainant was not satisfied with the
H treatment given to his father and he could act with some oblique
         MUKUT BIHARI & ANR. v. STATE OF                      719
         RAJASTHAN [DR. B.S. CHAUHAN, J.]
motive in order to falsely implicate the appellants. Thus, under     A
the garb of donation, he had offered the tainted money to the
appellants and got them arrested.

    8. The law on the issue is well settled that demand of illegal
gratification is sine qua non for constituting an offence under      8
the Act 1988. Mere recovery of tainted money is not sufficient
to convict the accused, when the substantive evidence' in the
case is not reliable, unless there is evidence to prove payment
of bribe or to show that the money was taken voluntarily as
bribe. Mere receipt of amount by the accused is· not sufficient      C
to fasten the guilt, in the absence of any evidence with regard
to demand and acceptance of the amount as illegal
gratification, but the burden rests on the accused to displace
the statutory presumption raised under Section 20 of the Act
1988, by bringing on record evidence, either direct or
circumstantial, to establish with reasonable probability, that the   d
money was accepted by him, other-than as a motive or reward
as referred to in Section 7 of the Act, 1988. While invoking the
provisions of Section 20 of the Act, the court is required to
consider the explanation offered by the accused, if any, only on
the touchstone of preponderance of probability and not on the        E
touchstone of proof beyond all reasonable doubt. However,
before the accused is called upon to explain as to how the
amount in question was found in his possession, the
foundational facts must be established by the prosecution. The
complainant is an interested and partisan witness concerned          F
with the success of the trap and his evidence must be tested
in the same way as that of any other interested witness and in
a proper case the court may look for independent corroboration
before convicting the accused person.
                                                                     G
(Vide: Ram Prakash Arora v. The State of Punjab AIR 1973
SC 498; Pana/a/ Damodar Rathi v. State of Maharashtra AIR
1979 SC 1191; Suraj Mal v. The State (Delhi Admn.) AIR
1979 SC 1408; Smt. Meena Ba/want Hemke v. State of
Maharashtra AIR 2000 SC 3377; T. Subramanian v. The                  H
    720      SUPREME COURT REPORTS                [2012f 6 S.C.R.


A State of T.N., AIR 2006 SC 836; A. Subair v. State of Kere/a
  (2009) 6 SCC 587; State of Maharashtra v. Dnyaneshwar
  Lax man Rao Wankhede (2009) 15 SCC 200; C. M. Girish
  Babu v. CBI, Cochin, High Court of Kera/a, AIR ~009 SC
  2022; and State of Kera/a and Anr. v. C.P. Rao (2011) 6 SCC
B 450)

        9. The case of the appellants has no merit as the case is
  squarely covered by the judgment of this Court in C:M. Sharma
  v. State of A.P. TH. J.P., AIR 2011 SC 608, wherein a similar
C issue had been raised that the complainant alongwith the
  shadow witness went to the office of the accused but the
  accused asked the shadow witness to go out of the chamber.
  Shadow witness left the chamber. However, the complainant
  brought the shadow witness in the chamber and explained to
  the accused that he was his financer. Despite that the accused
D again asked the shadow witness to leave the chamber and thus,
  he went out. The accused demanded the money and the
  complainant paid over the tainted money to him, which he
  received from his right hand and kept in right side pocket of
  the trouser. A signal was given, whereupon he was trapped by
E the team which apprehended the accused and conducted
  sodium carbonate test on the fingers of the right hand and right
  trouser pocket of the accused, which turned pink. The tainted
  notes were lying on the floor of the office, which were recorded.

F      10. This Court, after considering various judgments of this
  Court including Pana/al Damodar Rathi (supra) and Smt.
  Meena Ba/want Hemke (supra) held that acceptance of the
  submission of the accused that the complainant's version
  required corroboration in all circumstances, in abstract would
G encourage the bribe taker to receive illegal gratification in
  privacy and then insist for corroboration in case of the
  prosecution. Law cannot countenance such situation. Thus, it
  is not necessary that the evidence of a reliable witness is
  necessary to be corroborated by another witness, as such
  evidence stands corroborated from the other material on record.
H
         MUKUT BIHARI & ANR. v. STATE OF                  721
         RAJASTHAN [DR. B.S. CHAUHAN, J.]
The court further distinguished the case of Pana/al Damodar       A
Rathi (supra) on the ground that in that case the Panch witness
had not supported the prosecution case and therefore, the
benefit of doubt was given to the accused. In Smt. Meena
Ba/want Hemke (supra) as the evidence was contradictory, the
corroboration was found necessary.                                B

      11. Undoubtedly, in Smt. Meena Ba/want Hemke (supra),
this Court held that law always favours the presence and
importance of a shadow witness in the trap party not only to
facilitate such witness to see but also overhear what happens     C
and how it happens.

       12. This Court in Chief Commercial Manager, South
 Central Railway, Secunderabad & Ors. v. G. Ratnam & Ors.,
·AIR 2007 SC 2976, considered the issue as to whether non-
 observance of the instructions laid down in para nos. 704-705    D
 of the Railway Vigilance Manual would vitiate the departmental
 proceedings. The said manual provided for a particular
 procedure in respect of desirability/necessity of the shadow
 witness in a case of trap. This Court held that these were
 merely executive instructions and guidelines and did not have    E
 statutory force, therefore, non-observance thereof would not
 vitiate the proceedings. Executive instructions/orders do not
 confer any legally enforceable rights on any person and impose
 no legal obligation on the subordinate authorities for whose
 guidance they are issued.                                        F
     13. In Moni Shankar v. Union of India & Anr., (2008) 3
SCC 484, this Court held that instructions contained in Railway
Vigilance Manual should not be given a complete go-bye as
they provide for the safeguards to avoid false implication of a
railway employee.                                                 G

    14. So far as the instant case is concerned, the appellants
had been working under the health department of the State of
Rajasthan. No provision analogous to the paragraphs contained
in Railway Vigilance Manual, applicable in the health             H
    722      SUPREME COURT REPORTS                 [2012] 6 S.C.R.

A department of the State of Rajasti'1liW at the relevant time had
  been brougnt to the notice of the courts below, nor had been
  produced before us,

         Therefore, it can be held that it is always desirable to have
    a shadow witness in the trap party but mere absence of such
8
    a witness
        6
              would not vitiate the whole trap proceedings. .

      15. In the instant case, there is no contradiction in the
  deposition of the witnesses. The witnesses have truthfully
  deposed that they did not hear the conversation between the
C accused and the complainant.

        Therefore: their version is without any embellishment and
    improvement. There could be no reason/motive for Rafiq
    (PW.1) to falsely enrope the appellants in the case.
D       The appeal is devoid of any merit and is, accordingly,
    dismissed.

       However, considering the fact that the incident occurred
  about two decades ago and the appellants suffer from severe
E ailments, they have lost their service long ago and suffered the
  agony of protracted litigation, the appellant no.1 has been
  suffering from acute pancreatitis and both the appellants have
  served the sentence for more than six months, in the facts and
  circumstances of the case, their sentence is reduced to one
F year.

    K.K.T.                                       Appeal dismissed.