Holding

The Supreme Court restored the conviction, holding that the prosecution evidence was sufficient and that, in exceptional circumstances, it may re‑appreciate evidence, while reducing the sentence to six months’ rigorous imprisonment.

Summary

The respondent, Dr. G.K. Ghosh, a government orthopaedic surgeon, was convicted by a Special Judge for demanding and accepting illegal gratification from a patient’s father under Section 5(1)(d) of the Prevention of Corruption Act, 1947 and for criminal intimidation under Section 161 IPC. The conviction was set aside by the Allahabad High Court on the ground that the evidence was insufficient and that the police officer who led the trap was an interested witness. On special leave, the Supreme Court examined whether it could re‑appreciate the evidence and whether the complainant’s testimony, the police officer’s evidence, and the circumstantial material (a half‑filled medical certificate and phenolphthalein test) were reliable. The Court held that the High Court had failed to record findings of fact and that, in exceptional cases, the Supreme Court may undertake evidence appraisal. It concluded that the prosecution evidence was sufficient to sustain the conviction, restored the finding of guilt, and reduced the rigorous imprisonment term from two years to six months. The appeal by the State was allowed, the High Court’s acquittal set aside, and the sentence modified.

Issues considered

Whether the Supreme Court may re‑appreciate evidence on special leave when the High Court failed to record findings of fact
Whether the testimony of the complainant and the police officer leading the trap is admissible and reliable despite being an interested witness
Whether the circumstantial evidence (half‑filled medical certificate and phenolphthalein test) corroborates the prosecution’s case
Whether the conviction under Section 5(1)(d) of the Prevention of Corruption Act, 1947 and Section 161 IPC is sustainable
Whether the sentence of two years’ rigorous imprisonment should be modified

Legislation cited

Code of Criminal Procedures. 313
Indian Penal Code, 1860s. 161
Prevention of Corruption Act, 1947s. 5(1)(d)

Subjects

corruptionillegal gratificationevidence appraisalpolice witnesscircumstantial evidenceconvictionsentence modificationspecial leavePrevention of Corruption ActIPC Section 161

Judgment

. STATE OF U.P.
/ A
v.

I;>R. G. K. GHOSH

September 21, 198~
B
(S. MURTAZA FAZAL ALI, A, VAllADARAJAN
AND M. P. THAKKAR JJ.] '

Evidence-Re-appreciation of evidence by the Supreme Court in an appeal
" by Spe~ial Leave-Article 136 of the Constitution read with Order XXI.
c
Witnesses-Evidence of the complainant Probative value of.

Prevention, of <:;__orruption Act,- 1947-Pollce officer leading the raiding
party-Not an interested witness.

Respondent was an orthopaedic surgeOn in the U.H.M. Hospital and D
was incharge of the Orthopaedic Departtnent. IIe. was allotted an official·
residence within tlie campus of the hospHal 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 Coriuption Act,· 1947 and for an offence
under section 161 of the Penal Code by the Special Judge, Kanpur. Conse- E
quently 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.) Tlie
appeal preferred by the convict was allowed and the order of conviction
and sentence was set aside by-the High Court. Hence th~ appeal by State, by
I \
special leave.

Allowing the appeal, restoring the finding of guilt, and order of con- F
viction, 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 1 which
function properly falls within the sphere of the High Court in its capacity as G
the appellate•Court. Here, the High Court resorted to surmises and conjec-
tures for which there was not the ·slightest basis. The iligh. 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 reli-
ability and credibility_of t!J_e witnesses an<t weighing the probabilities in the
context -of the circumstantial evidence. (996 B-E] · H
. -
2:1. By a.nd large-a citizen is somewhat reluctant, rather than anxious.
to complain to the vigilarice Department and to have a trap arranged even if
SUPREME cotiRr REPORTS [1983) 3 S.C.R.
- .l.
illegal gratification is demanded. by a Government servant. There are nume.;
A rous reasons for the reluctance.. Jn the first place, he has to make a number
of visits to the office of Vigilance Departmefit 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 tq sacrifice his time and effort whilst
doing so. Thereafter, he has to attend the court at the time of the trial from
B 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 Or the Government serv3.nts of the
department collcerned in· his future dealings with the department. No one
c would therefore be too keen or too anxious to face such an ordeal. Ordinarily,
it is only when a citizen feels ~ppresSed by a feeling of being wronged and
finds the situation to be beyond cnduranse, that he adopts the course of
. approaching the Vigilance Department for laying a tfap. His evidellce cannot
therefore be easily or lightly brushed aside. [1001 E-H; 1002 A BJ

2:3. or'course, it cannot be gain said .that it does not mean that the
D court should be o,blivious of the need for caution and circumspection hearihg
in mind that one can conceive of cases where an honest or strict Government
official inay 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]

E 3:1. The evidence of a. policf'. officer cannot be brushed aside as that ,0f
an interested witness. That he has an interest is true .only to an extent-a
very ·limited ex.tent. He is interested in the. success of the trap to ensure' that
a citizen, Who complains of harrassment by a Government Officer making a
·demand for illegal gratification, is Protected and the role of his departmellt
in the protection of such citizens is vindicated. Perhaps it can be contended
that he is interested in the suc:ess of the trap so that his ego is satisfied or
F that he earns a feather in his cap. At the same time it ni.ust be realised that
it is not frequently that a police officer. himself being a Government Servant
would res.art to perjury and concoct eviJence in order ll:o rope in an innOcen;
Governm.ent servant. In the event of the· Government servant concern~d
r~fusing to accept the curreficy note'> offered by the complainant, it would n.ot
be reasonable.to expect the police officer to go to ·the length of concocting a
G 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 cas'e, feels safe
in accepting the prosecution verson on the basis of the oral evidence of t~e
complainant and the police officers' even if the trap witnesses turn hostile or
are found not to be independent. When therefore- bcei:des such evidence thefe
H 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. .
. . [1002 D·HJ ·
u.P. STATE v. G.K. GHOSH (Thakkar, J.) 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 A
the raid proved abortive and yet everyone conspired together in order to falsely
·rope in the respondent. [1009 F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 609
of I 981.
J
B
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.

0. P. Malhotra and D. Bhandari for the Appellant.
c
V. M. Tarkunde, U. R. La/it, Dr. B. S. Chauhan and B. B. Singh,
for the Respondent. ·

·The Judgment of the Court was delivered by
D
THAKKAR, J. A doctor in a Government Hospital was found
guilty of demanding and accepting illegal gratification from the father
.Qf a patient under his treatment at the Hospital and was convicted
for an offence under Section 5 (I) (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 E
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
I this appeal by special leave.
F
The High Court allowed the appeal on forming the op1mon
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 permitied to have private p,actice of his
own as per the relevant rules, though such was not his defence at

.. any stage. G

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 H
accused had not offered any such explanation in his statement
recorded llnder Section 313 of the Code of Criminal Procedure. In
(act the defence of the respondent before the Sessions Court was that·
996 SUPREME COURT REPORTS (1983) 3 s.c.R.

he had never accepted any such amount from PW 3 Babu Lal. It
A was his case that the story regarding passing of the currency notes
was concocted and that he bad not accepted any currency notes· from
PW 3, as alleged by the prosecution. According to him be bad been
.'framed'. What is more, i!. is obvious that if the respondent had
accepted monetary consideration in respect of a patient being treated
B at the Government hospital, it could scarcely have been contended
that it was a part of permissible private practice and not iilegal grati•
fication. · The High Court resorted to surmises and conjectures for
which there was not the slightest basis, apart fro!ll 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
c High Court cannot be sustained on the basis of the reasoning which
found favour with it. The finding of guilt, recorded by the Sessions
Court, will therefo;e have to be examined afresh on merits, since the
High Court has altogether failed to undertake the exercise of scrutiniz-
ing.'and making assessment of the evidence. If only the High Court
D 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 takhig 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
E 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 :
\ -
F 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 ofthe Hospital. As per the then
prevailing rules he was permitted consultation practice at his residence
G 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 Ortho·

H
paedic 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 ~ objected saying tharthe condition
of his child had not improved. The respondent a3ked PW 3 to see
U.P. STATE v G.K. GHOSH (Thakkar, J.) 997.

· him at his residence ih the evening. It appears that at the hospital
Babu Lal learnt that he would have to pay some money to the A
respondent, Dr. Ghosh, if he warited 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
B
app"ears that PW 3 gathered the impress'ion 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 t]:ie
medical expenses. The respondent told PW 3 that he would have to pay c
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 del)Jand. 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 issuo 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 E
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 riotes of the denomination of
Rs.. 10 with him. He noted down the numbers of these notes and
carried the sum with hilll when he again approached the 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 Depart,
ment. He approached the Vigilance Officer and lodged complaint G
exhibit KA·8 on March 31, 1976.. It appears that he bad borrowed
Rs. 200 with a vi~w to provide the currency notes for laying a trap.
He had carried 20 ten-rupee notes with him. In the complail;it 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 H
occasion, the numbers of which he had noted down previously. He
also specified the nu~bers of the 20 ten·rupee notes ·provided by
998 SUPREME COURT REPORTS ~ '[1983] 3 s.c.R.
him at the time of lodging the complaint. The Superintendent of the
A Vigilance Department, Shri I.P. Bhatnagar, called his Deputy, Dy.
S. P. Pandey, and asked him to do the needful in the matte.r. Dy.
S. P. Pandey asked PW 3 to meet hi111 on April 2, 1976-at 5-30 p. m.
in Kaushik Park. Meanwhile, Superintendent Bhatnagar contacted
the Dir~ctor of Vigilance Department and moved the competent
B authority for the requisite permission. The Coinmissioner-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 Jay the trap. It is the prosec~tion case that thereafter
. PW 3 contacted Dy. S. P. Pandey at Kaushik Park on April 2, 1976
c at 5-30 p.m. Two witnesses were called. The currency notes were·
· handed over to PW I, Inspector Bahadur Singh. Initlals 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 pnblic
.
witnesses, ' to the members who were to accompany the party. _
and
D
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 transpire-1 need not be stated as he has not
been examined as a w·itness. After Sham Lal returned. PW 3; along
with PW 2 Constable Bachu Lal, entered the Consultation room.
E PW 2 was in pla_in clothes and had posed as the· elder brother of PW
3. Whel) 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.
F 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
G 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
H
will stay in Hospital· for'. ----days. The anticipated expendh
ture likely to incur is Rs.-------. Shri-:--------,is
recommended to draw Medical Advanw of Rs.--------...;,.
U.P; STATE v. G•. K. GHOSH (Thakkar, J.) 999

------,--from--------- -------from his
employer. A

Station Kanpur Medical Officer

·Date: Kanpur
B
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 mentio'ned the name of PW-3 (Babu Lal) in the relevant column
in the second line. 1n the fourth line in the blank space he men·
tioned the name of the disease (T.B. Left Hip). He also mentioned
the date of admission in his own liand (18-2-76). Having filled in
c
' 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 D
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 be had accepted money
E
from PV. 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·!. The_currency notes were placed in an envelope which was F
sealed. The hand of the respondent was washed in a cup of rnlotion
of Sodium Carbonate in the presence of the' witnesses. The solution
turned red. The parse of the respondent was searched. The bush·
shirt 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
G
5 ten-rupee notes given qy 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 livin.g room and the almirah
H
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 SUPRJlMB COURT REPORTS [1983) 3 s.C.J.i.,
•
also seized and were placed in an envelope which was sealed~ Mean- •
A while, 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
8 of the investigation. The sanction for prosecuting respondent
Dr. Ghosh was obtained from the Government of U.P. and the
charge-sheetagainst the accused was silbmi\ted Jn 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
c of an encounter with dacoits before the trial commenced). Out
of the two public witnesses, one, PW-5 Ram Singh, has been
J
examined. The other public witnesses Thakur Prasad has not been
exa'llined 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
D Babula!; three of the members of the raiding party viz. PW· I
Bahadur Singh, Inspector Vigilance Department, and PW-2 constable
Bachu Lal who had posod as the brother of PW -3 and had accom-
'panied him when he entered the consultation room, were examined
at the trial. The defence examined · five witnesses. Though the
E 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 consideratfon the
F evidence of PW-5 Ram Singh in view of the criticism levelled by the
defence in regard· to his selection. The learned judge however con·
sidered the evidence of PW -3 complainant Babula! as reliable. He
also relied upon the evidence of PW -I Inspector Bahadur Singh
and PW·2 Constable Bachulal. Taking into account the totality of
G 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 explaµation offered by the respondent in
regard to various circumstances appearing . against him; the learned
H Special Judge reached the conclusion that the prosecution had
established beyond reasonable doubt that the respondent had
demanded and accepted illegal grati'.lcation. The ie!lrned Special
..

U.P. STATE v. G.K. GHOSH (Thakkar, J.) 1001

Judge thereupon convicted the respondent for the offence under
. Section 161 !PC as also for the offence under Section 5(1) (d) of the A
.. 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 men-
tioned earlier _in the course of the. judgment: For the reasons indi-
cated. earlier, the judgment rendered by the High Court is of no
8
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. -
c
The learned Special Judge was perfectly justified in making
the cautious approach adopted by him in excluding from considera-
tion the evidence of the public. witness, PW-5, Ram Singh. We
will have also to do likewise and exclude his evidence from con-
sideration to be on the safe side. ·We will have to examine whether D.
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 resp'ondent, taken along with the explanation
offered by him.

By and large a citizen is somewhat reluctant, rather than
lil
anxious, to complain to the Vigilance Department and to have a
trap arranged even if illegal gratification is demanded by a Govern-
ment 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 the result, a citizen who has been harassed by
a Government officer, has 'to face all these hazards. And if the H
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 im1>Iicate a Qov~rµment servant, not to speak of fac~ng the
1002 SUPREME
. .
COURT REPORTS [1983] 3 s.c.ll..

wrath of the Government servants of the department concerned, in
A 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 adopis the
course of approaching the Vigilance Department for laying a trap .
B . His evidence cannot therefore be easily or lightly brushed aside. Of
course, it cannot be gainsaid that it does not ,mean that the· court
shou)d 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
c 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-
D namely that he is an interested witness. This is true, but only to an
extent a very limited extent. He is i°'terested in the success of the
trap to ensure that a 'citizen, who complains of harassm'ent by a
'Government officer making a demand for illegal gratification, is
· protected' and the role of his department iri the protection of snch
citizens is vindicated. Perhaps it can be ·contended that he is
Ill
'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 l)e
' 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 Governme.nt servant .. In the event
I' of the Governmenfservant concerned refusing to accept the currency
notes offered by the cOmJ?lainant, it would not be reasonable to
except the police officer to go to the length of concocting afalse
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 circum-
G stances of acase, 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 circum-
H stantial evidence which is consistent with the guilt of the accused
and not consisten(with his innocence, there should be no difficulty
in upholding the· prosecution case, The present appears to be a
q1se of that nature. If the circumstantial evidence is of such a
U.P. STATE v. G.K. GHOSH (Thakkar, J.) -- ioo3
· nature tbat it affords adequate corroboration to the prosecution
ca~e, as held by the learned Special Judge, the appeal must succeed. A
~ If ou the other hand the circmmtantial 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 B
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. 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. c
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 forth. Now, the prosecution version is that illegal gratification D
was demanded by the accused from the complainant (~W-3, Babula!)
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 certifi-
cate which was to be issued as and by way of consideration fof the E
illegal gratification paid to him. When he was in the process of
preparing this certificate, at the point of ti.me. when he had filled it
·partly, the raiding party arrived upon the pre-agreed signal being
J given. In other words the prosecution case is. that· it was -in these
circumstances that a form of medical certificate which. was partly F
filled in by the accused and which was partly incomplete was found
on the table of the accused and was seized from his privote consulta-
tion 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 hand- G
- writing 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
pfosec'ution. The fact that the form has been . partly filled by the H
accused'himself is admitted in the statement made by him under
Section 313 of the Code of Criminal Procedure. It is an undisputed
ioo4 SUPREME COURT REPORTS

fact that the medical certificate was being prepared 'at the request'
A 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 veision pertaining to the circumstances
in which this situation arose has already been adverted to. The
defence· version. as to (I) the circumstances in which he started
preparing the medical certificate in his own writing and stopped
B
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
c , away the finger of gullt pointed at him by this in~riminating
circumstance, is good enough, If the outcome is in favour of the
defence, t)le 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. '

D ' Let us now ·therefore have a close look at the explanation
offered ·by the ac~used, which may be quoted verbatim for the sake
of preciseness :- · _.,

"Once after finishing my round I was returning
E back, At that time Babula! came to me and told that
in the present days of emergency he was not ' given leave.
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
F 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 theake
I started filling · the form -and found that the form is
incorrect. At ·that time Babu Lal' was not present there.
G I stopped writing the form and kept the same on the
table itself. I can't say as to how that from reach'ed to
the hands of Shri R.N. Pandey. This from is Ex. Ka. 5.
_Shri R.N. Pandey used to come to Shri B.TYf. P~ndey."

·H 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 i;sued. The from presented to him was a typed form. (it has
\J.il .. sTATB v. o.K. GHOSH (fhakkar, i.) JOOS

been reproduced in extenso in the earlier part of the judgment)
containing about eight lines with blank spaces which were required A
to be filled up. He would have immediately realised at a· bare glar.ce
that it was not the proper form before starting to . fill up the form.
In any event if be had realised that the form was not a proper form
after filling up four gaps, he would have at le~st conveyed to
PW-3 that he could not issue the certificat in that form.
It is not even his case that he did so. Besides, there was no .point
B
or purpose in keeping the half fil)ed form on bis table. Why
should be have preserved it at all 1 , It is inconceivable why
1
he sbould preserve that half filled form and keep it in bis 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 bow anyone
would know about the existence of this form, steal it, and pass it on
c
to PW-3 or to the police officers so that it could be readily used in
order to wea\fe it in the story pertaining to what transpired 11t !he
time of the raid. The respondent himself is unable to explain bow
the half filled form w]licb was lying.in bis office room in the hospital
made its way into the bands of the police officers. Again, it will D
have to be assumed that the police officers from the ver:19 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
E
.impossible to believe that so many co-incidences could have occurred
namely, (!) the respondent c~uld not realise that the form was not
a correct form till be 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 ftom 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 enimical to him G
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 respon<)ent. Nobody c~uld have known that
such a form would be lying on his table. Even if any member of
H
· , the staff had found .it on the table he would not have realised that
' I ' ,
1006 SUPREME 'COURT REPORTS ll91!~] 3 s.c.k.
,
it could be utilise.d for trapping the respondent through ·PW-3. ·It is
A too much to believe that someone interested in ·framing the respon-
dent had an easy access to his office room, could enter his office
room in the absence of the resp911dent, and take away such a paper
lying on bis table. And that such a person would contact PW-3,
· Babula!, and the police officers, and plant in their mind the idea that
B 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
d.emand fqr Rs. 200 was mentioned in Complaint Ka-14 ihicb· was
forwarded by the . Vigilance Commissioner to the Government for
obtainillg sancti~n. ·The evidence of PW-3, Babula!, and the evidence
c of PW-i, Police Constable Bachu Lal, who accompanied him goes
to show that as ·soon as the currency notes were banded 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
D
seized under a·Farad and a copy of this Farad was handed over
immediately to the: wife of the respondent after obtaining her signa-
ture 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 mani-
pulation after the police officer left the consultation room of the
E respondent after the raid. It was but natural for the respondent to
start filling up the form as soon as the amount demanded oy him
was paid. The fact that he bad 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 1n the light of the explan·ation offered b.y the respondent,
F 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 justi-
fied in attaching great importance to this piece of circumstantial
evidence. As discussed earlier, it is very difficult to ·believe that
G 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 be 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
H. himself to the hazards of becoming a witness in a criminal trial, just
in orde; to .. rope in the respondent against whom· there was no
personal enmity. On the other hand it is understanda hie if he was

'
tt.P. STATE V. Ci.K. Gliosli (Thakkar, J.) 1001
t
exasperated when he felt that his child was being denied proper
medical treatment by tl\e doctor who insisted on illegal gratification
'under one pretexi or another. And on account of the strong feeling
of injustice it was understa.ndable if he lodged a complaint with the
Vigilance Department out of exasperation. The respondent has ·no
other explanation to offer except and save to the effect that, PW 3
• must have done it at the )nstance of one of his ambitious colleagues
who was junior to him. This is what tl':e respondent says in his ·
B
statement in this connection :-

"Baboo Lal had gone wrongly under this impression
that h\s daughter had not been benefited by the
treatment: c
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.
D

· Having regained sensibility she started feeling pain
and she used to cry. Ba boo 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 E
never was there. He never gave me this opportunity to
convey him that ]low much the patient. has been benefited
and recovered by the treatment. Baboo Lal used to come
at evening and used to retu~n back· after meeting with
doctors. Qr. S. M. Pandey who was iny immediate junior F
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. o.'
Pandey Director Yigilance are both residents of Distt.
Basti and are colaterals in family.

Once Dr. B. M. Pandey had attempted to dislodge
H
me from U. H. M. Hospital an.d suddenly I got a tra,:,sfer
order. All the ministers, M. L. As and Dy. Ministers who
were Pandeys were in the back of Shri B. M. Pandey. My
1008 StiRREME COURT REPORTS . !1983) 3 s.c.i\.
\
transfer was stayed by the Court. Meanwhile, Dr. B: M.
A . Pandey wasposted 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 be '
alloted ten beds of the Verandb 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."
c
,. So also i_t is not possible to believe that all ihe 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
D possible to believe that nothing had transpired at the raid, and yet,
an imagined account oftheoccurance and the.seizure was incorpo- ·
rated 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
E 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.
Sh\lkla and other police officials were invoived. A vast
F 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 tl.
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 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
H Dr. B..M. Pandey.by· laying a trap on me. Baboo Lal

"
:; was made a willing stooge."
. ti.i>. STATE v. G;K. GHOSH (Thakkar, J.) i6M
The incident was a relatively stale one and it is highly
improbable that the entire police force would nurse a grievance on A
this score and wait for such an opportunity. Be it realized th.at the
child of PW 3 was genuinely afflicted with bone T.B. and was a
_ gen~ine 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 solutiqn turned into red indiCat·
B
ing that the fiingers 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 c
were recovered were both separtely 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 ?
D
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 iti the solu·
. E
tion. I don't know whether they had sealed this red
solution in bottles o_r not."

Taking an overall view of the evidence of PW. 1, PW 2, PW 3,
and the circumstantial evidence, it is riot possible to believe that the F
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 G
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
J money was paid to the repondent his child would not get proper
treatment. Nor can one be oblivious of the evidence of PW 3·10 H
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
lolo SUPREME COURT REPoRTS tl9S3] 3s.c.R..

which was seized upon by the respondent for ma!Qrig PW 3 y'ield
A tci 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 unles's. the demand was acceded to. If the 'com-
plainant was interested· in inventing .a story nothing could prevent
B him from inventing the story to the effect that the demand was beiQg
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
c in his own hand. The evidence of PW-land PW-2 as also of PW-3,
thu.s 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 oilt' earlier,
D set aside this finding under a serio.us 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 therespondent had to undergo the tension of a pending trial and
'E a pending appeal for six years, and the fact that it will have adverse
. impact on his employment after 23 years o.f service, no useful 'pur-
pose 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
F . guilt and the order of conviction recorded by tlie 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 sui:ntantive sentence imposed on him.

S.R. Appeal allowed.

' l