PHULA SINGHversusSTATE OF HIMACHAL PRADESH

                     [2014] 3 S.C.R. 551


                       PHULA SINGH                             A
                             v.
             STATE OF HIMACHAL PRADESH
            (Criminal Appeal No. 2271 of 2011)
                      MARCH 3, 2014
                                                               B
  [DR. B.S. CHAUHAN AND J. CHELAMESWAR, JJ.]

    PREVENTION OF CORRUPTION ACT, 1988:

     ss. 7 and 13(2) -- Demand and acceptance of illegal       c
gratification -- Trap laid --Appellant caught red handed --
Acquittal by trial court -- Conviction by High Court and
sentence of one year imprisonment with fine - Held: Appellant
has not denied his visit to house of complainant nor has he
furnished any explanation in respect of recovery of chemically
                                                                0
treated currency notes from his pocket and the test of his
fingers being positive --There is no perversity in the judgment
of High Court.

    CODE OF CRIMINAL PROCEDURE, 1973:
                                                               E
    s.313-Power to examine accused -- Held: Accused has
a duty to furnish an explanation in his statem~n~ uls 313
regarding any incriminating material that has been produced- ·
against him, failing which court would be entitled to draw an
adverse inference against him.                                 F
    APPEAL

     Appeal against acquittal -- Power of appellate court --
Held: In exceptional cases where there are compelling
circumstances and judgment under appeal is found to be G
perverse, appellate court can interfere witn the order of
acquittal.

    The appellant a Kanungo, was prosecuted for
                            551                                H
    552      SUPREME COURT REPORTS             [2014] 3 S.C.R.

A committing offences punishable u/ss 7 and 13(2) of the
  Prevention of Corruption Act, 1988, as he was caught red
  handed in a trap laid at the instance of the complainant.
  The trial court acquitted him, but the High Court convicted
  him of the offences charged and sentenced him to one
B year RI with a fine of Rs. 10,000/-.

          Dismissing the appeal, the Court

       HELD: 1. The accused has a duty to furnish an
  explanation in his statement u/s 313 Cr.P.C. regarding any
C incriminating material that has been produced against
  him. If he chooses to maintain silence or even remain in
  complete denial, the court would be entitled to draw an
  adverse inference against him as may be permissible
  under the law. In the instant case, the appellant could not
o have maintained complete silence particularly, with
  regard to his visit to the house of the complainant, his
  fingers test being positive and recovery of chemically
  treated currency notes of Rs.1,000/- from the pocket of
  his pant. [para 6, 8 and 9] [555-G-H; 556-E-F, G-H]
E       Ramnaresh & Ors. v. State of Chhattisgarh, 2012 (3)
    SCR 630 =AIR 2012 SC 1357; Munish Mubar v. State of
    Haryana, 2012 (9) SCR 193 =AIR 2013 SC 912; and Raj
    Kumar Singh alias Raju @ Batya v. State of Rajasthan, AIR
    2013 SC 3150 - relied on.
F
       2. In exceptional cases where there are compelling
  circumstances and judgment under appeal is found to be
  perverse, appellate court can interfere with the order of
  acquittal. In the instant case, it cannot be said that it was
G not a fit case where the High Court ought to have reversed
  the judgment of acquittal. There is no perversity in the
  judgment of the High Court. [para 9-11) [557-A-C, D]
                        Case Law Reference:

H         2012 (3) SCR 630      relied on           para 8
 PHULA SINGH v. STATE OF HIMACHAL PRADESH                 553
                                  •

    2012 (9) SCR 193          relied on            para 8        A
    AIR 2013 SC 3150          relied on            para 8
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2271 of 2011.
                                                                 B
     From the Judgment & Order dated 24.08.2011/07.09.2011
of the High Court of Himachal Pradesh at Shimla in Criminal
Appeal No. 358 of 2009.

    Dinesh Kumar Garg, M.S. Bakshi, L.S. Bakshi for the
Appellant.                                                       C

    Promila for the Respondent.

    The Judgment of the Court was delivered by

     DR. B.S. CHAUHAN, J. I. This appeal has been preferred D
against the impugned judgment and order dated 24.8.2011/
7.9.2011, passed by the High Court of Himachal Pradesh at
Shimla in Criminal Appeal No.358 of 2009 reversing the
judgment and order dated 19.2.2009, passed by Ld. Special'
Judge, Hamirpur in Corruption Case No.1 of 2008 acquitting E
the appellant from the Charges under Sections 7 and 13(2) of
the Prevention of.Corruption Act, 1988 (hereinafter referred to
as 'the Act'). The High Court has awarded the appellant
sentence of one year RI and a fine of Rs.10,000/- and in default
of payment of fine to undergo further RI for a period of six F
months.

    2. Facts and circumstances giving rise to this appeal are:

     A. That on 20.6.2007, the appellant was working as
Kanungo of the particular area and one Vakil Chand filed a       G
complaint against the father of the complainant that he
encroached upon the land thus, asked for demarcation. The
appellant investigated the matter and found that one· and half
kanals of the land of Vikil Chand had been encroached upon
by the complainant's father.                                     H
    554      SUPREME COURT REPORTS               [2014] 3 S.C.R.


A      B. The complain_ant raised the objection about this
  demarcation and at that time the appellant met the complainant
  at village Kheri and demanded "Chai Pani" to cancel the
  demarcation report. It was in view thereof that the complainant
  contacted the appellant on 10.7.2007 on his mobile and the
8 appellant demanded the bribe of Rs.5,000/- from the
  complainant. The complainant Prabhat Chand lodged an FIR
  with the Police Station of State Vigilance and Anti-Corruption
  Department, Hamirpur alleging demand of bribe by the
  appellant.

C       C. The appellant informed the complainant that he would
  visit his residence and he should pay the said amount. In the
  negotiation the deal was struck to the tune of Rs.1,000/-. The
  appellant came to the residence of the complainant on
  10."1.2007 and demanded the bribe. In view of the complaint
D already lodged by Prabhat Chand, the trap was laid and the
  appellant was arrested and after investigating the matter the
  chargesheet was filed which ultimately culminated into
  Corruption Case No.1 of 2008 under Sections 7 and 13(2) of
  the Act. After conclusion of the trial by judgment and order
E dated 19.2.2009 the Ld. Sessions Judge, Hamirpur acquitted
  the appellant of all the charges.

      D. Aggrieved, the State of Himachal Pradesh filed an
  appeal which has been allowed vide impugned judgment and
F order..

          Hence, this appeal.

       3. Shri D.K. Garg, learned counsel appearing for the
  appellant has submitted that demarcation had already been
G made and the report had been submitted before the Tahsildar,
  therefore, there was no occasion for the appellant to demand
  any amount. As the complainant's father had encroached upon
  the land of Vakil Chand to the tune of one and half kanals and
  the appellant had shown this fact in his report the complainant
H
 PHULA SINGH v. STATE OF HIMACHAL PRADESH 555
            [DR. B.S. CHAUHAN, J.]
was having the grudge against him. Therefore, he has falsely A
been enroped. The High Court failed to appreciate that there
are different parameters to reverse the judgment of acquittal
and in this respect failed to apply the law laid QQW!l by this Court .
in a catena of judgments. There is no evidence of demand or
acceptance of the bribe. Hence, the appeal deserves to be B
allowed.

      4. Per contra, Ms. Sliikha Bhardwaj, learned counsel for
the respondent has opposed the appeal contending that there
was sufficient material against the appellant on the basis of         C
which the High Court has rightly reversed the acquittal though
there was no direct evidence of demand of bribe. The appellant
visited the house· of the complainant though there was no
relationship between the two. He removed his shirt and hanged
in the house of the complainant though.-the money was
recovered from the pocket of the pant. After recovery when the        D
hands of the appellant were washed, the same turned pink.
Therefore, there was a duty cast upon the appellantto explain
all the circumstances while his statement under Section 313
Cr.P.C.was being recorded. The appellan_t kept mum and did
not lead any evidence in defence. The High Court was justified        E
to draw the adverse inference against the appellant in view of
the presumption enshrined under Section 20 of the Act. Hence,
the appeal is liable to be dismissed.

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

     6. The admitted facts remain that the appellant had no
relationship or acquaintance with the complainant whatsoever
and the appellant failed to furnish any explanation about his visit
and staying in the house of the complainant. The appellant            G
has not denied visit to the house of the complainant. More so,
he did not furnish any explanation in respect of recovery of
Rs.1,000/- from the pocket of his pant nor he could furnish any
information as how his fingers turned pink on being washed,
with_ sodium carbonate sol~ion as the currency notes already          H
    556      SUPREME COURT REPORTS                 [2014] 3 S.C.R.

A found in pocket of his pant had been treated with
  phenolphthalein. On being washed, part of his pant also turned
  pink.

         Even in the statement under Section 313 Cr.P.C., the
  appellant answered every question saying "I do not know" or
8
  "it is incorrect" but when he was asked as to whether he wanted
  to say anything else, he answered as under:-

          "! am innocent and Prabhat Chand had lodged a false case
          against him, because he had encroached the land of Shri
C         Vakil Chand as per his demarcation".

      7. We do not find any force in the submission advanced
  by Shri D.K. Garg that it is the prosecution which has to
  establish each and every fact and the accused has a right only
D to maintain silence.

       8. The accused has a duty to furnish an explanation in his
  statement under Section 313 Cr.P.C. regarding any
  incriminating material that has been produced against him. If
  the accused has been given the freedom to remain silent during
E the investigation as well as before the court, then the accused
  may choose to maintain silence or even remain in complete
  denial when his statement under Section 313 Cr.P.C. is being
  recorded. However, in such an event, the court would be entitled
  to draw an inference, including such adverse inference against
F the accused as may be permissible in accordance with law.
  (Vide: Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012
  SC 1357; Munish Mubar v. State of Haryana, AIR 2013 SC
  912; and Raj Kumar Singh alias Raju @ Batya v. State of
  Rajasthan, AIR 2013 SC 3150).
G
       9. In the instant case, we fail to understand as under what
  circumstances the appellant could maintain complete silence
  particularly, in view of the fact that he did not deny his visit to
  the house of the complainant or that his shirt was found hanging
H on the peg in the wall and that his hands turned pink on being
 PHULA SINGH v. STATE OF HIMACHAL PRADESH 557
            [DR. B.S. CHAUHAN, J.]
                  I
washed with sodium carbonate water. We do not find any force            A
in the submission advanced by Shri D.K. Garg that it was not
a fit case where the High Court ought to have reversed the well
reasoned judgment of acquittal as it was based on -evidence
on record.
                                                                        8
      10. We are fully aware of limitations of the appellate court
to interfere with an order of acquittal. In exceptional cases
where there are compelling circumstances and the judgment
under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court should
bear in mind the presumption of innocence of the accused and            C
further that the trial Court's acquittal bolsters the presumption
of his innocence. Interference in a routine manner where the
otherview is possible should be avoided, unless there are good
reasons for interference.
                                                                        D
      11. In the instant case, there is no perversity in the judgment
of the High Court as it cannot be said that the judgment is not
based on evidence or the evidence on record has not properly
been re-appreciated by the appellate court, whjch may warrant
interference by this court.                                             E
     12. In view of the above, the appeal is dismissed. The
appellant has been enlarged on bail. The bail bonds are
cancelled. He must surrender before the Ld. Special Judge,
Hamirpur, Shimla within a period of four weeks, failing which
the said Court shall secure his presence and send him to jail           F
to serve the remaining part of the sentence.

    A copy of the judgment be sent to the aforesaid learned
Court for information and compliance.
                                                                        G
R.P.                                           Appeal dismissed.