Supreme Court of India
VINOD KUMARversusSTATE OF PUNJAB
- Citation
- 2015 INSC 956
- Decided
- 21 January 2015
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
The prosecution proved demand, acceptance and recovery of the bribe, attracting the presumption under Section 20, and the evidence of hostile and interested witnesses, when corroborated, was admissible; therefore the conviction under the Prevention of Corruption Act was upheld.
Summary
Vinod Kumar, an octroi inspector, was convicted under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 for demanding and accepting a bribe of Rs.500. The prosecution relied on the recovery of the tainted notes, the testimony of an independent clerk (PW‑6), a shadow witness (PW‑7) who was later declared hostile, and a police officer (PW‑8) who conducted the trap. The appellant argued that the complainant turned hostile, the trap witnesses were interested parties, and that mere recovery of money could not sustain a conviction. The Supreme Court held that the evidence proved demand, acceptance and recovery, that the presumption under Section 20 of the Act was attracted, and that hostile or interested witnesses may be relied upon when corroborated. Consequently, the conviction and sentence were upheld and the appeal dismissed.
Issues considered
- Whether a conviction under Sections 7 and 13(2) of the Prevention of Corruption Act can be sustained on the basis of recovery of money and testimony of trap witnesses despite the complainant turning hostile.
- Whether the presumption under Section 20 of the Prevention of Corruption Act is attracted when demand, acceptance and recovery are proved.
- Whether the testimony of a hostile or interested (trap) witness can be relied upon for conviction.
- Whether mere recovery of tainted currency notes is sufficient to establish the offence of taking illegal gratification.
- Whether the extensive adjournments and delay in cross‑examination violated the principles of a fair trial.
Legislation cited
- Code of Criminal Procedure, 1973s. 138, s. 309, s. 313
- Indian Evidence Act, 1872s. 114, s. 138
- Prevention of Corruption Act, 1988s. 13(2), s. 20, s. 7
Subjects
Prevention of Corruption Actbriberyillegal gratificationpresumptionhostile witnesstrap witnessadjournmentsfair trialcriminal procedureevidencepublic servantconvictioncorruption
Judgment
[2015] 1 S.C.R. 504
A VINOD KUMAR
V.
STATE OF PUNJAB
(Criminal Appeal No. 554 of 2012)
JANUARY 21, 2015.
B
[DIPAK MISRA AND ROHINTON FALi NARIMAN, JJ.]
Prevention of Corruption Act, 1988 - ss. 7 and 13(2) -
Public servant taking illegal gratification - Public servant-
C octroi inspector accepting bribe - Conviction and sentence
ulss. 7 and 13(2) on basis of the trap laid, examination and
cross-examination of the prosecution witnesses by the courts
below - On appeal held: On facts, presumption can be drawn
that the inspector had received or accepted the said currency
D notes on his own volition - Testimony of PW6, an
independent witness and PW-7 show that the prosecution was
able to prove demand, acceptance fWd recovery of the
amount - Though PW 7 was cross-examined after 20 months
which resulted in his pre-varication from the examination-in-
E chief, he was declared hostile and re-examined, reading the
evidence in entirety, his evidence cannot be brushed aside
- Thus, order passed by the courts below upheld.
Criminal trial - Inordinate delay in holding trial in respect
of serious offences relating to corruption - Adjournments
F sought by the counsel for cross-examination - Duty of the
court - Held: Adjournments sought on the drop of a hat by
the counsel, even though the witness is present in court, is
contrary to all principles of holding a trial - It is necessary that
if the examination-in-chief is over, the cross-examination
G should be completed on the same day - If the examination
of a witness continues till late hours the trial can be adjourned
to the next day for cross-examination - Cross-examination
should not be deferred for a long time - Special reasons are
H 504
VINOD KUMAR v. STATE OF PUNJAB 505
to be recorded for grant of time but the same is not taken note A
of - If adjournments are granted in this manner it would
tantamount to violation of rule of law and eventually turn such
trials to a farce - Trial judges directed to follow the principles
relating to trial in a requisite manner and not to defer cross-
examination of a witness at their pleasure or at the leisure of B
the defence counsel, for it eventually makes the trial an
apology for trial and compels the whole society to suffer
chicanery - Administration of criminal justice - Practice and
procedure - Adjournments.
Dismissing the appeal, the Court
c
HELD: 1. Mere recovery of the tainted money is not
sufficient to record a conviction unless there is evidence
that bribe had been demanded or money was paid
voluntarily as bribe. In the absence of any evidence of D
demand and acceptance of the amount as illegal
gratification, recovery would not alone be a ground to
convict the accused. PW6-clerk supported the recovery
in entirety. He stood firm and remained unshaken in the
cross-examination and nothing has been elicited to E
dislodge his testimony. Further, from. the testimony of PW
7 it is absolutely clear that he supported in entirety about
the demand, acceptance and recovery of money. PW7
was examined-in-chief on 30.9.1999 and was cross-
examined on 25.5.2001, almost after 1 year and 8 months. F
The delay in said cross-examination, had given enough
time for prevarication due to many a reason. A fair trial is
to be fair both to the defence and the prosecution as well
as to the victim. An offence registered under the
Prevention of Corruption Act is to be tried with all G
seriousness. There is failure to appreciate how the trial
Judge could exhibit such laxity in granting so much time_,,. ·
for cross-examination in a case of this nature. It would
have been absolutely appropriate on the part of the trial
Judge to finish the cross-examination on the day the said H
506 SUPREME COURT REPORTS [2015] 1 S.C.R.
A witness was examined. As is evident, for no reason
whatsoever it was deferred and the cross-examination
took place after 20 months. The witness had all the time
in the world to be gained over. He was declared hostile
and re-examined. Reading the evidence in entirety, the
B evidence of PW-7 cannot be brushed aside. However, part
of his testimony does not commend acceptance in the
backdrop of entire evidence in examination-in-chief and
the re-examination. Further, the evidence of PW6 and
PW7 have got corroboration from PW8. He in all material
c particulars stated about the recovery and proven the
necessary documents pertaining to the test carried with
phenolphthalein powder. The appellant was caught red-
handed with the currency notes smeared with the powder
by PW 8. The appellant in his statement recorded under
Section 313 CrPC took the plea that he is innocent and
0
was falsely implicated due to animosity. No explanation
was given as regards the recovery. Therefore, legitimately
a presumption can be drawn that the accused-appellant
had received or accepted the said currency notes on his
E own volition. The factum of presumption and the
testimony of PW6 and 7 go a long way to show that the
prosecution was able to prove demand, acceptance and
recovery of the amount. Thus, the trial judge and the High
Court appositely concluded that the charges leveled
against the accused have duly been proven by the
F prosecution. It is not a case that there is no other
evidence barring the evidence of the complainant. On the
contrary there are adequate circumstances which
establish the ingredients of the offences in respect of
which he was charged. [Para 39-40] [537-A-D; 538-D-H;
G 539-D-G; 540-8-D]
2. Agony and anguish is expressed in the manner in
which trials jn respect of serious offences relating to
corruption are being conducted by the trial courts.
H Adjournments are sought on the drop of a hat by the
VINOD KUMAR v. STATE OF PUNJAB 507
counsel, even though the witness is present in court, A
contrary to all principles of holding a trial. That apart, after
the examination-in-chief of a witness is over,
adjournment is sought for cross-examination and the
disquieting feature is that the trial courts grant time. The
law requires special reasons to be recorded for grant of B
time but the same is not taken note of. There has to be a
fair and proper trial but the duty of the court while
conducting the trial to be guided by the mandate of the
law, the conceptual fairness and above all bearing in mind
its sacrosanct duty to arrive at the truth on th.e basis of c
the material brought on record. If an accused for his
benefit takes the ttial on the path of total mockery, it
cannot be countenanced. The Court has a sacred duty
to see that the trial is conducted as per law. If
adjournments are granted in this manner it would
D
tantamount to violation of rule of law and eventually turn
such trials to a farce. It is legally impermissible and
jurisprudentially abominable. The trial courts are
expected in law to follow the command of the procedure
relating to trial and not yield to the request of the counsel
E
to grant adjournment for non-accepta~ble reasons. In fact,
it is not all appreciable to call a witness for cross-
exam ination after such a long span of time. It is
imperative if the examination-in-chief is over, the cross-
examination should be completed on the same day. If the
examination of a witness continues till late hours the trial F
can be adjourned to the next day for cross-examination.
It is inconceivable in law that the cross-examination
should be deferred for such a long time. It is anathema
to the concept of proper and fair trial. The duty of the
court is to see that not only the interest of the accused G
as per law is protected but also the societal and collective
interest is safe-guarded. It is distressing to note that
despite series of judgments of this Court, the habit of
granting adjournment, really an ailment, continues. There
is a constant discomfort. Therefore, it is appropriate that H
508 SUPREME COURT REPORTS [2015] 1 S.C.R.
A the copies of the judgment be sent to the Chief Justices
of all the High Courts for circulating the same among the
trial Judges with a command to follow the principles
relating to trial in a requisite manner and not to defer the
cross-examination of a witness at their pleasure or at the
B leisure of the defence counsel, for it eventually makes the
trial an apology for trial and compels the whole society
to suffer chicanery. Law cannot allowed to be lonely; a
destitute. [Para 41] [540-G-H; 541-A-G]
Gumaib Singh V. State of Punjab 2013 (3) SCR 563 =
C (2013) 7 SCC 108; Swaran Singh V. State of Punjab 2000
(3) SCR 572 = 2000 (5) SCC 668, State of U.P. V. Shambu
Nath Singh (2001) 5 SCC 667, Raghubir Singh V. State of
Haryana 1974 (2) SCR 799: 1974 (4) SCC 560; Madhukar
Bhaskarrao Joshi V. State of Maharashtra 2000 (4) Suppl.
D SCR 475 = 2000 (8) SCC 571; B. Jayaraj V. State of Andhra
Pradesh (2014) 4 SCALE 81; M.R. Purushotham Vs. State
of Kamataka (2014) 11 SCALE 467; Sat Paul V. Delhi
Administration 1976 (2) SCR 11 = 1976 ( 1 ) SCC 727; State
of Bihar V. Basawan Singh (CB) (1959) SCR 195, Major E.G.
E Barsey V. State of Bombay (1962) 2 SCR 195, Bhanupratap
Hariprasad Dave V. State of Gujarat (1969) 1 SCR 22; MO
Shamshuddin V. State of Kera/a 1995 ( 2 ) SCR 900 = 1995
( 3 ) SCC 351; C. M. G Babu V. C. B. I., Cochin 2009 (2 )
SCR 1-021 = 2009 (3 ) SCC 779; and Benarsi Das V. State
F of Haryana 2010 (4 ) SCR 383 = 2010 (4 ) SCC 450; Shiv
Bahadur Singh V. State of Vindhya Pradesh 1954
SCR 1038 =AIR 1954 SC 322 , Bhagwan Singh V. State of
Rajasthan 1976 ( 1 ) SCC 15 , Megha Singh V. State of
Haryana 1996 (11 ) SCC 709, State vs. V. Jayapau/ (2004)
G 5 SCC 223 State of U.P. V. Bhagwant Kishore Joshi 1964
SCR 71 = 1964 AIR 221, S.Jeevanatham V. State (through
Inspector of Police, TN.) 2004 (1 ) Suppl. SCR 607 = 2004
(5) SCC 230; Bhagwan Singh V. State of Haryana 1976 (2)
SCR 921 = 1976 (1) SCC 389, Khuji@ Surendra Tiwari V.
H State of Madhya Pradesh1991 ( 3) SCR 1 = 1991 ( 3) SCC
VINOD KUMAR v. STATE OF PUNJAB 509
627, Rabindra Kumar Dey V. State of Orissa 1977 ( 1 ) SCR A
439 = 1976 ( 4 ) SCC 233; and Syad Akbar V. State of
Karnataka 1980 ( 1 ) SCR 95 = 1980 ( 1 ) SCC 30, Rammi
@ Rameshwar V. State of Madhya Pradesh 1999 (3 ) Suppl.
SCR 1 = 1999 (8 ) SCC 649, Hazari Lal v. State (Delhi
Administration) 1980 (2) SCR 1051 =1980 (2) SCC 390;Sita B
Ram v. State of Rajasthan 1975 ( 2 ) SCC 227; M. Narsinga
Rao v. State of A.P 2000 (5) Suppl. SCR 584 = 2001 ( 1 )
SCC 691; Suraj Mal v. State (Delhi Admn.) 1979 (4)
SCC 725; Suresh Budharmal Kalani v. State of
Maharashtra1998 ( 1 ) Suppl. SCR 608 = 1998 ( 7 ) SCC c
337;M.R. Purushotham v. State of Karnataka 2014 (11)
SCALE 467; T. Subramanian v. The State of Tamil Nadu
2006 (1 ) SCR 180 = 2006 (1 ) SCC 401, Madhukar
Bhaskarrao Joshi v. State of Maharashtra 2000 ( 4 ) Suppl.
SCR 475 = 2000 ( 8 ) SCC 571 , Raj Rajendra Singh Seth v. D
State of Jharkhand and Anr. 2008 (11 ) SCR 66 = 2008 (11)
SCC 681; State of Maharashtra v. Dnyaneshwar Laxman Rao
Wankhede 2009 (11 ) SCR 513 = 2009 (15) SCC 200, C.M.
Girish Babu v. C.B.I., Cochin 2009 (2 ) SCR 1021 =
2009 AIR 2022, K. S. Panduranga v. State of Karnataka 2013 E
(4 ) SCR 155 = 2013 (3 ) SCC 721 and Satvir Singh v. State
of Delhi (2014) 13 SCC 143 - referred to.
Hawkins v. Powells Tillery Steam Coal Co. Ltd (1911) 1
KB 988 : 1911 WN 53 DPP V. Hester (1972) 3 All ER 1056;
OPP V. Kilbourne (1973) 1 All ER 440- referred to. F
Case Law Reference
2013 (3) SCR 563 referred to para 4
2000 (3) SCR 572 referred to para 5 G
(2001) 5 sec 667 referred to para 6
1974 (2) SCR 799 referred to para 13
2000 (4) Suppl. SCR 475 referred to para 13
H
510 SUPREME COURT REPORTS [2015] 1 S.C.R.
A (2014) 4 SCALE 81 referred to para 14
(2014) 11 SCALE 467 referred to para 14
1976 (2) SCR 11 referred to para 15
(1959) SCR 195 referred to para 15
B
(1962) 2 SCR 195 referred to para 15,20
(1969) 1 SCR 22 referred to para 15,21
1995 (2) SCR 900 referred to para 15,22
c
2009 (2) SCR 1021 referred to para 16
2010 (4) SCR 383 referred to para 16
1954 SCR 1038 referred to para 19
D 1976 (1) sec 15 referred to para 23
1996 (11) sec 109 referred tcf para 24,26
(2004) 5 sec 223 referred to para 25,27
E 1964 SCR 71 referred to para 25,26
2004 (1) Suppl. SCR 607 referred to para 27,28
1976 (2) SCR 921 referred to para 29
1991 (3) SCR 1 referred to para 29
F
1977 (1) SCR 439 referred to para 29
1980 (1) SCR 95 referred to para 29
1999 (3) Suppl. SCR 1 referred to para 30
G
1980 (2) SCR 1051 referred to para 33
1975 (2) sec 221 referred to para 34
2000 (5) Suppl. SCR 584 referred to para 35
H
VINOD KUMAR v. STATE OF PUNJAB 511
1979 (4) sec 725 referred to para 35 A
1998 (1) Suppl. SCR 608 referred to para 35
2014 (11) SCALE 467 referred to para 38
2006 (1) SCR 180 referred to para39
B
2000 (4) Suppl. SCR 475 referred to para 39
2008 (11) SCR 66 referred to para 39
2009 (11) SCR 513 referred to para 39
c
2009 AIR 2022 referred to para 39
2013 (4) SCR 155 referred para 39
(2014) 13 sec 143 referred to para 39
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal D
No. 554 of 2012.
From the Judgment and Order dated 13.10.2011 of the
High Court of Punjab and Haryana at Chandigarh in CRA No.
1280-SB of 2001 (0 & M) E
Sushil Kumar jain, Puneet Jain, Khushbhu Jain, Abhinay
Gupta, Manu Maheshwari, Pratibha Jain for the Appellant.
V. Madhukar, AAG, Anvita Cowshish, Kuldeep Singh tor
F
the respondent.
The Judgment of the Court was delivered by.
D.IPAK MISRA, J. 1. If one is asked a question, what
afflicts the legally requisite criminal trial in its conceptual G
eventuality in this country the two reasons that may earn the
status of phenomenal signification are, first, procrastination of
trial due to non-availability of witnesses when the trial is in
progress and second, unwarranted adjournments sought by the
H
512 SUPREME COURT REPORTS [2015] 1 S.C.R.
A counsel conducting the trial and the unfathomable reasons for
acceptation of such prayers for adjournments by the trial courts,
despite a statutory command under Section 309 of the Code
of Criminal Procedure, 1973 (CrPC) and series of
pronouncements by this Court. What was a malady at one time,
B with the efflux of time, has metamorphosed into malignancy.
What was a mere disturbance once has become a disorder, a
diseased one, at present.
2. The instant case frescoes and depicts a scenario that
c exemplifies how due to passivity of the learned trial Judge, a
witness, despite having stood embedded absolutely firmly in
his examination-in-chief, has audaciously and, in a way,
obnoxiously, thrown all the values to the wind, and paved the
path of tergiversation. It would not be a hyperbole to say that it
o is a maladroit and ingeniously designed attempt to strangulate
and crucify the fundamental purpose of trial, that is, to arrive at
the truth on the basis of evidence on record. The redeeming
feature is, despite the malevolent and injurious assault, the
cause of justice has survived, for there is, in the ultimate
E eventuate, a conviction which is under assail in this appeal, by
special leave.
3. The narration of the sad chronology shocks the judicial
conscience and gravitates the mind to pose a question, is it
F justified for any conscientious trial Judge to ign_ore the statutory
command, not recognize "the felt necessities of time" and
remain impervious to the cry of the collective asking for justice
or give an indecent and uncalled for burial to the conception of
trial, totally ostracizing the concept that a civilized and orderly
G society thrives on rule of law which includes "fair trial" for the
accused as well as the prosecution.
4. In the aforesaid context, we may recapitulate a passage
from Gurnaib Singh V. State of Punjab. 1
H 1. (2013) 7 sec 10s.
VINOD KUMAR v. STATE OF PUNJAB 513
[DIPAK MISRA, J.]
"...... We are compelled to proceed to reiterate the law and A
express our anguish pertaining to the manner in which the
trial was conducted as it depicts a very disturbing scenario.
As is demonstrable from the record, the trial was
conducted in an extremely haphazard and piecemeal
manner. Adjournments were granted on a mere asking. 8
The cross-examination of the witnesses was deferred
without recording any special reason and dates were
given after a long gap. The mandate of the law and the
views expressed by this Court from time to time appears
to have been totally kept at bay. The learned trial Judge, c
as is perceptible, seems to have ostracised from his
memory that a criminal trial has its own gravity and sanctity.
In this regard, we may refer with profit to the
pronouncement in Ta/ab Haji Hussain v.· Madhukar
Purshottam Mondkai' wherein it has been stated that an D
accused person by his conduct cannot put a fair trial into
jeopardy, for it is the primary and paramount duty of the
criminal courts to ensure that the risk to fair trial is removed
and trials are allowed to proceed smoothly without any
interruption or obstruction."
E
5. Be it noted, in the said case, the following passage from
Swaran Singh V. State of Punjab 3 , was reproduced.
"It has become more or less a fashion to have a criminal
case adjourned again and again till the witness tires and F
gives up. It is the game of unscrupulous lawyers to get
adjournments for one excuse or the other till a witness is
won over or is tired. Not only is a witness threatened, he
is abducted, he is maimed, he is done away with, or even
bribed. There is no protection for him. In adjourning the
G
matter without any valid cause a court unwittingly becomes
party to miscarriage of justice."
2. AIR 1958 SC 376.
3. (2000) 5 sec 668.
H
514 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 6. In this regard, it is also fruitful to refer to the authority in
State of UP. V. Shambu Nath Singh 4 , wherein thts Court
deprecating the practice of a Sessions Court adjourning a case
in spite of the presence of the witnesses willing to be examined
fully, opined thus:
B
"9. We make it abundantly clear that if a witness is present
in court he must be examined on that day. The court must
know that most of the witnesses could attend the court only
at heavy cost to them, after keeping aside their own
avocation. Certainly they incur suffering and loss of income.
c The meagre amount of bhatta (allowance) which a witness
may be paid by the court is generally a poor solace for the
financial loss incurred by him. It is a sad plight in the trial
courts that witnesses who are called through summons or
other processes stand at the doorstep from morning till
D evening only to be told at the end of the day that the case
is adjourned to another day. This primitive practice must
be reformed by the presiding officers of the trial courts and
it can be reformed by everyone provided the presiding
officer concerned has a commitment towards duty."
E
7. With the aforesaid concern and agony, we shall
presently proceed to adumbrate the necessitous facts. We have
already stated that despite the impasse, there is a conviction
by the trial Judge and an affirmation thereof by the High Court.
F Elucidating the factual score, be it noted, the instant appeal is
directed against the judgment and order dated 13.10.2011
passed by the High Court of Punjab and Haryana at Chandigarh
in Criminal Appeal No. 1280-SB of 2001 (O&M) wherein the
learned Single Judge has given the stamp of approval to the
G judgment and order dated 24.10.2001 passed by the learned
Special Judge, Patiala whereby he had convicted the appellant
under Section 7 and 13(2) of the Prevention of Corruption Act,
1988 (for brevity, 'the Act') and sentenced him to undergo
H 4. (2001) 5 sec 667.
VINOD KUMAR v. STATE OF PUNJAB 515
[DIPAK MISRA, J.]
rigorous imprisonment for a period of two years and to pay a A
fine of Rs.2,000/- with a default clause.
8. The prosecution case, as has been unfurled, is that Baj
Singh, PW-5, used to bring earth in tractor trolley within the
municipal area of Rajpura. The appellant, at the relevant time,
B
was posted as Octroi lnspector·and he demanded Rs.20/- per
trolley for permitting him to enter into the municipal area.
Eventually, a deal was struck that the accused-appellant would
be paid Rs.500/- per month for the smooth operation. As the
prosecution story further unfolds, on 25.1.1995, Baj Singh met C
Jagdish Verma, PW-7, and disclosed before him the fact about
the demand of the accused for permitting the entry of the tractor
trolley inside the municipal area and thereafter, as he was not
desirous of obliging the accused, he narrated the entire story
to DSP Vigilance, who in his turn, with the intention to lay the
trap, explained it to Baj Singh, PW-5, and Jagdish Verma, PW- D
7 about the procedure of the trap. As alleged, Baj Singh gave
five notes of Rs.100/- to the DSP Vigilance who noted the
numbers of the notes and completed other formalities like
applying phenolphthalein powder on the currency notes.
Thereafter, they proceeded to the place of the accused and a E
trap was laid. Eventually, currency notes amounting to Rs.500/
- were recovered from the trouser of the appellant and were
taken into possession. The statements of the witnesses were
recorded and after completing the investigation chargesheet
was placed for the offences punishable under Sections 7 and F
13(2) of the Act.
9. To bring home the charges against the accused-
appellant, the prosecution examined eight witnesses. PW-1 to
PW-4 are formal witnesses. PW-5, the complainant resiled from
G
his previous statement and was cross-examined by the
prosecution. Sher Singh, PW-6, a clerk in the office of
Tehsildar, Rajpura had joined the police party as an
independent witness. He supported the case of the prosecution
in detail. Jagdish Verma, PW-7, in his examination-in-chief,
H
516 SUPREME COURT REPORTS [2015] 1 S.C.R.
A supported the prosecution case in all aspects, but in cross-
examination, resiled from his examination-in-chief. The witness,
PW-7, was declared hostile on a prayer being made by the
Public Prosecutor and was re-examined. Narinder Pal Kaushal,
PW-8, DSP of Vigilance Bureau who had led the raiding party
B on 25.1.1995, in his deposition, deposed in detail about the
conducting of the raid and recovery of the amount.
10. The accused, in his statement under Section 313
CrPC, denied the allegations and took the plea of false
implication due to party faction and animosity. It was his further
C stand that he was brought from his office and was taken to the
office of thic Tehsildar and thereafter to the Vigilance office.
11. The learned trial Judge, on the basis of the evidence
brought on record, came to hold that though the complainant
D had not supported the case of the prosecution yet prosecution
had been able to prove the demand and acceptance of the
bribe and the recovery of the tainted money from the accused
and, therefore, the presumption as envisaged under Section 20
of the Act would get attracted and accordingly convicted the
E accused and sentenced him, as has been stated hereinbefore.
12. In appeal, it was contended before the High Court that
when the testimony of Baj Singh, PW-5, and Jagdish Verma,
PW-7, the shadow witness, was absolutely incredible, the same
could not have been pervertedly filtered by the learned trial
F Judge to convict the accused-appe11ant for the crime in
question. It was also urged that mere recovery of the currency
notes would not constitute the offence under Section 7 of the
Act. It was also propounded that the offence under Section
13(2) of the Act would not get attracted unless the demand and
G acceptance were proven. Non-involvement of any independent
witness in the raid was also seriously criticised. The High Court
posed the question whether the prosecution had been able to
prove the factum of demand of bribe, its acceptance and the
recovery of the money from the possession of the accused. With
H regard to demand of bribe, the High Court placed reliance on
VINOD KUMAR v. STATE OF PUNJAB 517
[DIPAK ~ISRA, J.]
the testimony of the independent witness Sher Singh, PW-6, A
and the examination-in-chief of Jagdish Verma, PW-7, and
came to hold that the demand. of bribe had been proven. It
appreciated the deposition of PW-7 and the documents,
especially, the Chemical Examiner's report of the hand wash
liquid and came to hold there had been acceptance of bribe. B
Relating to the recovery of the tainted money, the High Court
took note of the fact that the ocular testimony had been duly
corroborated by the documentary evidence and hence, the
recovery had been proved.
13. Be it noted, the High Court placed reliance upon C
Raghubir Singh V. State of Haryana 5 and Madhukar
Bhaskarrao Joshi V. State of Maharashtra 6 and eventually
came to hold that the prosecution had proven its case to the
hilt and resultantly affirmed the conviction and order of sentence
passed by the trial Court, but reduced the sentence of 2 years' D
rigorous imprisonment to one year.
14. Criticizing the conviction as recorded by the learned
trial Judge and affirmed by the High Court, it is submitted by
Mr. Jain, learned senior counsel for the appellant that when the
informant had not supported the case of the prosecution, it was E
not justifiable on the part of the learned trial Judge to record a
conviction against the accused. It is his submission that on the
basis of the testimony of PW-6 to PW-8, the conviction could
not have been recorded, for Sher Singh, PW-6, is not a witness
either to the demand or acceptance of the bribe by the appellant F
and further the version PW-7 requires careful scrutiny, regard
being had to the fact that he is a hostile witness. It is also urged
that the evidence of PW-8 deserves to be discarded as he is
an interested witness. To bolster the aforesaid submissions,
learned senior counsel has drawn inspiration from B. Jayaraj G
V. State of Andhra Pradesh 7 and M. R. Purushotham Vs. State
of Karnataka 8 .
5. (1974) 4 sec 560.
6 (2000) 8 sec 571.
7. (2014) 4 SCALE 81.
8. (2014) 11 SCALE 467. H
518 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 15. Apart from above, it is further put forth by him that as
PW-7 has not supported the prosecution story and stated to
have been tutored to give statement, his whole testimony should
have been thrown out of consideration and no reliance should
have been placed on it. It is contended by him that the High
B Court has failed to appreciate the importance of cross-
examination of PW-7 and hence, the judgment affirming the
conviction is absolutely flawed. To buttress the said submission,
reliance has been placed on Sat Paul V. Delhi Administration9 .
It is the further stand of Mr. Jain, learned senior counsel that
c the evidence of the trap witnesses, PW-6 and PW-8 should
have been wholly ignored as they are partisan witnesses and
their statements could not have been given any credence to
inasmuch as there has been no corroboration. In this context,
he has commended us to the authorities in State of Bihar V.
Basawan Singh (CB)1°, Major E G. Barsey V. State of
0
Bombay11, Bhanupratap Hariprasad Dave V State of Gujarat12
and MO Shamshuddin V. State of Kerala. 13
16. Learned senior counsel would contend, solely on the
basis of evidence of recovery, a conviction is not sustainable
E and in the obtaining factual matrix, the presumption under
Section 20 of the Act would not be attracted. To substantiate
the said proposition, strength has been drawn from C.M. Girish
Babu V. C.8.1., Cochin 14 and Benarsi Oas V. State of
Haryana 15 ".
F
17. The last plank of submission of Mr. Jain, is that in the
instant case, the prosecution was launched by Narinder Pal
9. (1976) 1 sec 727.
G 10. (1959) SCR 195.
11. (1962) 2 SCR 195.
12. (1969) 1 SCR 22.
13. (1995) 3 sec 351.
14. (2009) 3 sec 779.
H 15. (201 oi 4 sec 450.
VINOD KUMAR v. STATE OF PUNJAB 519
[DIPAK MISRA, J.]
Kaushal, PW-8, who has investigated into the case and, A
therefore, the concept of fair investigation, has been totally
marred as a consequence of which, the trial is vitiated. Learned
senior counsel would contend that a person who is a part of
the trap party is an interested witness and he would be
enthusiastic to see that the trap is sustained in every manner B
and in such a situation, it is per se an. unfair and biased
investigation that frustrates the essential principle inhered under
Article 21 of the Constitution and eventually the trial.
18. Mr. Madhukar, learned senior counsel appearing for
the State of Punjab, per contra, would contend that the view C
expressed by the learned trial Judge and the High Court cannot
be found fault with, for a conviction under the Act can be based
on the evidence of trap witnesses, if they are trustworthy and
the ingredients of the offence are satisfied and in the case at
hand, the High Court on x-ray of the evidence has so recorded. D
It is urged by him that neither the learned trial Judge nor the
High Court has fallen into error by applying the principle of
presumption as engrafted under Section 20 of the Act. It is
canvassed by Mr. Madhukar that the evidence of the hostile
witness can be placed reliance upon by the prosecution and E
in the obtaining factual matrix, the testimony of PW-7, one of
the shadow witnesses, renders immense assistance for
establishing the case of the prosecution. He has with great
pains, taken us through the evidence to substantiate the stand
that the conviction recorded against the appellant is totally F
defensible.
19. Keeping in abeyan9e what we intend to say on the facet
of anguish expressed by us in the beginning, we shall proceed
to deal with the proponement of Mr. Jain that when the
G
investigation conducted by Mr. Narinder Pal Kaushal, PW-8, is
vitiated on the foundation that he has lodged the FIR, the trial
is also vitiated. Though the said submission has been raised
and taken note of by us as the last plank, yet we think it seemly
to deal with it first as it goes to the root of the matter. On a
H
520 SUPREME COURT REPORTS [2015] 1 S.C.R.
A perusal of the material on record, it is manifest that PW-8 is a
part of the raiding party, a shadow witness, and admittedly had
also sent the complaint through a Constable to the concerned
police station for lodging of FIR. This being the factual score,
we are required to take note of certain authorities in this regard.
B In Basawan Singh (supra), the Constitution. Bench, after
referring to the decision in Shiv Bahadur Singh V. State of
Vindhya Pradesh 16 , opined that the said decision does not lay
down an invariable rule that the evidence of the witness of the
raiding party must be discarded in the absence of any
c independent corroboration. The larger Bench proceeded to
state thus:
"...... The correct rule is this: if any of the witnesses are
accomplices who are particeps criminis in respect of the
actual crime charged, their evidence must be treated as
D the evidence of accomplices is treated; if they are not
accomplices but are partisan or interested witnesses, who
are concerned in the success of the trap, their evidence
must be tested in the same way as other interested
evidence is tested by the application of diverse
E consideration which must vary from case to case, and in
a proper case, the Court may even look for independent
corroboratio·n· before ·donvicting the accused person. If a
Magistrate puts himself in the position of a partisan or
interested witness, he cannot claim any higher status and
F must be treated as any other interested witness."
20. In Major E.G. Barsey (supra), while dealing with the
evidence of a trap witness, the court opined that though a trap
witness is not an approver, he is certainly an interested witness
G in the sense that he is interested to see that the trap laid by
him succeeds. The Court further laid down that he can at least
be equated with a partisan witness and it would not be
admissible to rely upon his evidence without corroboration, but
his evidence is not a tainted one.
16. AIR 1954 SC 322.
H
VINOD KUMAR v. STATE OF PUNJAB 521
[DIPAK MISRA, J.]
21. In Bhanupratap Hariprasad Dave (supra), the Court A
observed that the police witnesses can be said to be partisan
witnesses as they are interested in the success of the trap laid
by them, but it cannot be said that they are accomplices.
Thereafter, the Court proceeded to state that their evidence
must be tested in the same way as any other interested witness B
is tested and in an appropriate case, the Court may look for
independent corroboration before convicting the accused
person. The three-Judge Bench reiterated the principle thus:
".... It is now well settled by a series of decisions of this C
Court that while in the case of evidence of an accomplice,
no conviction can be based on his evidence unless it is
corroborated in material particulars but as regards the
evidence of a partisan witness it is open to a court to
convict an accused person solely on the basis of that
evidence, If it is satisfied that that evidence is reliable. But D
it may in appropriate case look for corroboration".
22. In MO Shamshuddin (supra), the Court, after referring
to the decisions in OPP V. Hester17 and OPP V. Kilbourne 18 ,
made a distinction between accomplice and an interested E
witness. The Court, referred to the authority in Basawan Singh
(supra) at length and eventually adverted to the concept of
corroborating evidence. In that context it has been ruled thus:
"....... Now coming to the nature of corroborating evidence
F
that is required, it is well-settled that the corroborating
evidence can be even by way of circumstantial evidence.
No general rule can be laid down with respect to quantum
of evidence corroborating the testimony of a trap witness
which again would depend upon its own facts and
circumstances like the nature of the crime, the character G
of trap witness etc. and other general requirements
17. (1972) 3 All ER 1056.
18. (1973) 1 All ER 440. H
52-2 SUPREME COURT REPORTS [2015] 1 S.C.R.
A oecessarv to sustain the conviction in that case. The court
should weigh the evidence and then see whether
corroboration is necessary. Therefore as a rule of law it
cannot be laid down that the evidence of every complainant
in a bribery case should be corroborated in all material
B particulars and otherwise it cannot be acted upon. Whether
eorroboration is necessary and if so to what extent and
wh-at should be its nature depends upon the facts and
circumstances of each case. In a case of bribe, the person
who pays the bribe and those who act as intermediaries
c are the only persons who can ordinarily be expected to
give evidence about the bribe and it is not possible to get
absolutely independent evidence about the payment of
bribe."
From the aforesaid authorities it is clear that a trap witness
D is an interested witness and his testimony, to be accepted and
relied upon requires corroboration and the corroboration would
depend upon the facts and circumstances, nature of the crime
and the character of the trap witness.
E 23. There is no doubt that the status of PW8 is that of an
interested witness. There is no cavil over the fact that he had
sent the FIR and conducted the investigation, but the question
posed is whether the investigation by him is vitiated. In this
context we may, with profit, refer to the decision in Bhagwan
F Singh V. State of Rajasthan 19 , where one Ram Singh, who was
a Head Constable, was the person to whom the offer of bribe
was alleged to have been made by the appellant therein and
he was the informant who had lodged the First Information
Report for taking action against the appellant. He himself had
G undertaken the investigation. In that factual backdrop the Court
ruled thus:
"Now, ordinarily this Court does not interfere with
concurrent findings of fact reached by the trial court and
H 19. (1976) 1 sec 1s.
VINOD KUMAR v. STATE OF PUNJAB 523
.[DIPAK MISRA, J.]
the High Court on an appreciation of the evidence. But this A
is one of those rare and exceptional cases where we find
that several important circumstances have not been taken
into account by the trial court and the High Court and that
has resulted in serious miscarriage of justice calling for
interference from this Court. We may first refer to a rather B
disturbing feature of this case. It is indeed such an unusual
feature that it is quite surprising that it should have
escaped the notice of the trial court and the High Court.
Head Constable Ram Singh was the person to whom the
offer of bribe was alleged to have been made by the c
appellant and he was the informant or complainant who
lodged the first information report for taking action against
the appellant. It is difficult to understand how in these
circumstances Head Constable Ram Singh could
undertake investigation of the case. How could the
D
complainant himself be the investigator? In fact, Head
Constable Ram Singh, being an officer below the rank of
Deputy Superintendent of Police, was not authorised to
investigate the case but we do not attach any importance
to that fact, as that may not affect the validity of the
conviction. The infirmity which we are pointing out is not E
an infirmity arising from investigation by an officer not
authorised to do so, but an infirmity arising from
investigation by a Head Constable who was himself the
person to whom the bribe was alleged to have been
offered and who lodged the first information report as F
informant or complainant. This is an infirmity which is
bound to reflect on the credibility of the prosecution case".
24. In Megha Singh V. State of Haryana 20 , the Court
noticed the discrepancy in the depositions of PW-2 and PW-3 G
and absence of independent corroboration. Be it noted, the
Court was dealing with an offence under Section 6(1) of the
20. (1996) 11 sec 709. H
524 SUPREME COURT REPORTS [2015] 1 S.C.R.
A Terrorist and Disruptive Activities (Prevention) Act, 1985. In that
context the Court observed that the testimony of the said
witnesses did not inspire confidence about the reliability of the
prosecution's case. Proceeding further, the Court held:
" .... We have also noted another disturbing feature in this
B
case. PW 3, Siri Chand, Head Constable arrested the
accused and on search being conducted by him a pistol
and the cartridges were recovered from the accused. It was
on his complaint a formal first information report was
lodged and the case was initiated. He being complainant
c should not have proceeded with the investigation of the
case. But it appears to us that he was not only the
complainant in the case but he carried on with the
investigation and examined witnesses under Section 161
CrPC. Such practice, to say the least, should not be
D resorted to so that there may not be any occasion to
suspect fair and impartial investigation".
25. In this regard, it is useful to refer to the pronouncement
in State vs. V. Jayapauf2 1 wherein the Court posed the question
E whether the High Court was justified in quashing the criminal
proceedings on the ground that the police officer, who had
lodged/recorded the FIR regarding the suspected commission
of certain cognizable offence by the respondent should not have
investigated the case. The case against the accused was that
F he was indulging in corrupt practices by extracting money from
the drivers and owners of the motor-vehicles while conducting
check of the vehicles and making use of certain bogus notice
forms in the process. The charge-sheet was filed under
Sections 420 and 201 l.P.C. and Section 13(2) read with
G Section 13(1 ){d) of the Act. The Court referred to the decision
in the State of UP. V. Bhagwant Kishore JoshP 2 , wherein it
has been ruled thus:
21. (2004) 5 sec 223.
22. AIR 1964 SC 221.
H
VINOD KUMAR v. STATE OF PUNJAB 525
[DIPAK MISRA, J.]
"Section 154 of the Code prescribes the mode of A
recording the information received orally or in writing by
an officer in charge of a police station in respect of the
commission of a cognisable offence. Section 156 thereof
authorises such an officer to investigate any cognisable
offence prescribed therein. Though ordinarily investigation B
is undertaken on information received by a police officer,
the receipt of information is not a condition precedent for
investigation. Section 157 prescribes the procedure in the
matter of such an investigation which can be initiated
either on information or otherwise. It is clear from the said c
provisions that an officer in charge of a police station can
start investigation eit.her on information or otherwise."
26. After reproducing the said paragraph, the Court
proceeded to state thus:
D
"Though there is no such statutory bar, the premise on
which the High Court quashed the proceedings was that
the investigation by the same officer who "lodged" the FIR
would prejudice the accused inasmuch as the investigating
officer cannot be expected to act fairly and objectively. We E
find no principle or binding authority to hold that the
moment the competent police officer, on the basis of
information received, makes out an FIR incorporating his
name as the informant, he forfeits his right to investigate.
If at all, such investigation could only be assailed on the F
ground of bias or real likelihood of bias on thn part of the
investigating officer. The question of bias would depend
on the facts and circumstances of each case and it is not
proper to lay down a broad and unqualified proposition,
in the manner in which it has been done by the High Court,
G
that whenever a police officer proceeds to investigate after
registering the FIR on his own, the investigation would
necessarily be unfair or biased. In the present case, the
police officer received certain discreet information, which,
according to his assessment, warranted a probe and
H
526 SUPREME COURT REPORTS (2015] 1 S.C.R.
A therefore made up his mind to investigate. The formality
of preparing the FIR in which he records the factum of
having received the information about the suspected
commission of the offence and then taking up the
investigation after registering the crime, does not, by any
B semblance of reasoning, vitiate the investigation on the
ground of bias or the like factor. If the reason which
weighed with the High Court could be a ground to quash
the prosecution, the powers of investigation conferred on
the police officers would be unduly hampered for no good
c reason. What is expected to be done by the police officers
in the normal course of discharge of their official duties will
then be vulnerable to attack."
Be it noted, the Court distinguished the decisions in
Bhagwant Kishore Joshi (supra) and Megha Singh (supra).
D
27. At this juncture, it would be fruitful to refer to
S.Jeevanatham V. State (through Inspector of Police, T.N.} 23 .
In the said case, the appellant was found guilty under Section
8(c) read with Section 20(b)(ii) of the Narcotic Drugs and
E Psychotropic Substances Act, 1985. One of the contentions that
was canvassed was that PW-8, who lodged the FIR had himself
conducted the investigation and hence, the entire investigation
was vitiated. The Court referred to the decision in Jayapaul
(supra) and opined thus:
F "In the instant case, PW 8 conducted the search and
recovered the contraband article and registered the case
and the article seized from the appellants was narcotic
drug and the counsel for the appellants could not point out
any circumstances by which the investigation caused
G prejudice or was biased against the appellants. PW 8 in
his official capacity gave the information, registered the
case and as part of his official duty later investigated the
case and filed a charge-sheet. He was not in any way
H 23. (2004) s sec 230.
VINOD KUMAR v. STATE OF PUNJAB 527
[DIPAK MISRA, J.]
personally interested in the case. We are unable to find A
any sort of bias in the process of investigation."
28. In the instant case, PW-8, who was a member of the
raiding party had sent the report to the police station and
thereafter carried the formal investigation. In fact, nothing has
B
been put to him to elicit that he was anyway personally
interested to get the appellant convicted. In our considered
view, the decision in S. Jeevanatham (supra) would be
squarely applicable to the present case and, accordingly,
without any reservation we repel the submission so assiduously C
urged by Mr. Jain, learned senior counsel for the appellant.
29. The next aspect which requires to be adverted to is
whether testimony of a hostile evidence that has come on
record should be relied upon or not. Mr. Jain, learned senior
counsel for the appellant would contend that as PW-7 has D
totally resiled in his cross-examination, his evidence is to be
discarded in toto. On a perusal of the testimony of the said
witness, it is evincible that in examination-in-chief, he has
supported the prosecution story in entirety and in the cross-
examination he has taken the path of prevarication. In Bhagwan E
Singh V. State of Haryana 24 , it has been laid down that even if
a witness is characterised has a hostile witness, his evidence
is not completely effaced. The said evidence remains
admissible in the trial and there is no legal bar to base a
conviction upon his testimony, if corroborated by other reliable F
evidence. In Khuji @ Surendra Tiwari V. State of Madhya
Pradesh 25 , the Court after referring to the authorities in
Bhagwan Singh (supra), Rabindra Kumar Dey V. State of
Orissa 26 and Syad Akbar V. State of Karnataka 27 , opined that
the evidence of such a witness cannot be effaced or washed
G
24. (1976) 1 sec 389.
2s. (1991) 3 sec 627.
26. (1976) 4 sec 233.
21. (1980) 1 sec 30. H
528 SUPREME COURT REPORTS [2015] 1 S.C.R.
A off the record altogether, but the same can be accepted to the
extent it is found to be dependable on a careful scrutiny thereof.
30. In this context, we think it apt to reproduce some
passages from Rammi @ Rameshwar V. State of Madhya
B Pradesh 28 , where the Court was dealing with the purpose of re-
examination. After referring to Section 138 of the Evidence Act,
the Court held thus:
"There is an erroneous impression that re-examination
should be confined to clarification of ambiguities which
c have been brought down in cross-examination. No doubt,
ambiguities can be resolved through re-examination. But
that is not the only function of the re-examiner. If the party
who called the witness feels that explanation is required
for any matter referred to in cross-examination he has the
D liberty to put any question in re-examination to get the
explanation. The Public Prosecutor should formulate his
questions for that purpose. Explanation may be required
either when the ambiguity remains regarding any answer
elicited during cross-examination or even otherwise. If the
E Public Prosecutor feels that certain answers require more
elucidation from the witness he has the freedom and the
right to put such questions as he deems necessary for that
purpose, subject of course to the control of the court in
accordance with the other provisions. But the court cannot
direct him to confine his questions to ambiguities alone
F
which arose in cross-examination.
Even if the Public Prosecutor feels that new matters should
be elicited from the witness he can do so, in which case
the only requirement is that he must secure permission of
G the court. If the court thinks that such new matters are
necessary for proving any material fact, courts must be
liberal in granting permission to put necessary questions''.
H 2s. (1999) s sec 649.
VINOD KUMAR v. STATE OF PUNJAB 529
[DIPAK MISRA, J.]
31. We have reproduced the aforesaid paragraphs to A
highlight that when the prosecution has such a right in the
process of re-examination, as a natural corollary, the testimony
of a hostile witness cannot be brushed aside. On the contrary,
both the prosecution and the defence can rely for their stand
and stance. Emphasis on re-examination by the prosecution is B
not limited to any answer given in the cross-examination, but
the Public Prosecutor has the freedom and right to put such
questions as it deems necessary to elucidate certain answers
from the witness. It is not confined to clarification of ambiguities,
which have been brought down in the cross-examination. c
32. Mr. Jain, learned senior counsel has propounded that
testimony of PW7 deserves to be discredited, and the learned
trial Judge as well as the High Court having not ignored have
committed a grave error. We will be dealing with the aspect
whether the evidence of PW-7 should be totally ignored or not D
while we will be dwelling upon the credibility and acceptability
of his testimony.
33. As a contention has been raised that once the informant
has resiled totally from his earlier statement no conviction can E
be recorded on the basis of evidence of the trap witnesses, it
required to be carefully dwelled upon. In this regard, reference
to the authority in Hazari Lal v. State (Delhi Administration)29
would be apt. In the said case a police Constable was convicted
under Section 5(2) of the Prevention of Corruption Act, 1947 F
on the allegation that he had demanded and received Rs.60/-
from the informant who was examined as PW-3 and had resiled
from his previous statement and was declared hostile by the
prosecution. Official witnesses had supported the prosecution
version. Keeping in mind the evidence of the official witnesses
G
the trial Court had convicted the appellant therein which was
affirmed by the High Court. A contention was raised that in the
absence of any direct evidence to show that the police
29. (1980) 2 sec 390 H
530 SUPREME COURT REPORTS [2015] 1 S.C.R.
A constable demanded or accepted bribery no presumption under
Section 4 of the Act, 194 7 could be drawn merely on the-
strength of recovery of the marked currency notes from the said
police constable. Chinnappa Reddy, J. speaking for the two-
Judge Bench observed as follows:-
B
" ... lt is not necessary that the passing of money should be
proved by direct evidence. It may also be proved by
circumstantial evidence. The events which followed in quick
succession in the present case lead to the only inference
that the money was obtained by the accused from PW 3.
c Under Section 114 of the Evidence Act the court may
presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course
of natural events, human conduct and public and private
business, in their relation to facts of the particular case.
D One of the illustrations to Section 114 of the Evidence Act
is that the court may presume that a· person who is in
possession of the stolen goods soon after the theft, is
either the thief or has received the goods knowing them
to be stolen, unless he can account for his possession. So
E too, in the facts and circumstances of the present case the
court may presume that the accused who took out the
currency notes from his pocket and flung them across the
wall had obtained them from PW 3, who a few minutes
earlier was shown to have been in possession of the
F notes. Once we arrive at the finding that the accused had
obtained the money from PW 3, the presumption under
Section 4(1) of the Prevention of Corruption Act is
immediately attracted."
G 34. It is pertinent to note here that in the aforesaid case
the decision rendered in Sita Ram v. State of Rajasthan 30 was
pressed into service. In the case of Sita Ram (supra) the
complainant had turned hostile in the court of Special Judge.
H 30. (1975) 2 sec 227.
VINOD KUMAR v. STATE OF PUNJAB 531
[DIPAK MISRA, J.]
However, the trial Judge convicted the accused who was tried A
along with another accused, namely, Vikram Singh. The High
court on appreciation ofthe evidence acq.uitted Vikram Singh
but maintained the conviction against Sita Ram. This Court
opined that the presumption under Section 4(1) of the 194 7 Act
could not be drawn in the facts of the case. The question, B
whether the rest of the evidence was sufficient to establish that
the accused had obtained the money from the complaint was
not considered. The Court in Hazari Lal (supra) distinguished
the pronouncement in Sita Ram (supra) by stating thus:-
" ... The question whether the rest of the evidence was C
sufficient to establish that the accused had obtained the
money from the complainant was not considered. All that
was taken as established was the recovery of certain
money from the person of the accused and it was held that
mere recovery of money was not enough to entitle the D
drawing of the presumption under Section 4(1) of the
Prevention of Corruption Act. The Court did not consider
the further question whether recovery of the money along
with other circumstances could establish that the accused
had obtained gratification from any person. In the present E
case we have found that the circumstances established by
the prosecution entitled the court to hold that the accused
received the gratification from PW 3. In Suraj Mal v. State
(Delhi Admn.) 31 , also it was said mere recovery of money
divorced from the circumstances under which it was paid F
was not sufficient when the substantive evidence in the
case was not reliable to prove payment of bribe or to show
that the accused voluntarily accepted the money. There can
be no quarrel with that proposition but where the recovery
of the money coupled with other circumstances leads to G
the conclusion that the accused received gratification from
some person the court would certainly be entitled to draw
the presumption under Section 4(1) of the Prevention of
31. (1979) 4 sec 725. H
532 SUPREME COURT REPORTS [2015] 1 S.C.R.
A Corruption Act. In our view both the decisions are of no
avail to the appellant and as already observed by us
conclusions of fact must be drawn on the facts of each
case and not on the facts of other cases."
B 35. In this context it would be germane to understand what
has been stated in M. Narsinga Rao v. State of A.P3 2 . In the
said case, allegations against the accused- appellant were that
one Satya Prasad, PW1 therein was to get some amount from
Andhra Pradesh Dairy Development Cooperative Federation
for transporting milk to or from the milk chilling centre at
C Luxettipet (Adilabad District). He had approached the appellant
for taking steps to enable him to get money disbursed. The
appellant demanded Rs.5000/- for sending the
recommendation in favour of payment of the amount due to
PW1. As the appellant persisted with his demand PW1 yielded
D to the same. But before handing over the money to him he
lodged a complaint with DSP of Anti-Corruption Bureau. On the
basis of the said complaint all arrangements were ma<;ie for a
trap to catch the corrupt public servant red-handed. Thereafter
the Court adverted how the trap had taken place. The court took
E note of the fact that PW1 and PW2 made a volteface in the trial
court and denied having paid any bribery to the appellant and
also denied that the appellant demanded the bribe amount. The
stand of the accused before the trial court under Section 313
of CrPC was that one Dr. Krishna Rao bore grudge and had
F orchestrated a false trap against him by employing PW1 and
PW2. Be it stated, in his deposition PW1 had stated that he
had acted on the behest of one Dr. Krishna Rao. It was further
the stand of the accused-appellant that the tainted currency
notes were forcibly stuffed into his pocket. The trial court and
G the High Court had disbelieved the defence evidence and found
that PW1 and PW2 were won over by the appellant and that is
why they turned hostile against their own version recorded by
the investigating officer and subsequently by a Magistrate under
H 32. (2001) 1 sec 691.
VINOD KUMAR v. STATE OF PUNJAB 533
[DIPAK MISRA, J.]
Section 164 of CrPC. The Special Judge ordered the A
witnesses to be prosecuted for perjury and the said course
suggested by the trial Judge found approval of the High Court
also. While dealing with the controversy this court took note of
the fact that the High Court had observed that though there was
no direct evidence to show that the accused had demanded B
and accepted the money, yet the rest of the evidence and the
circumstances were sufficient to establish that the accused had
accepted the amount and that gave rise to a presumption under
Section 20 of the Prevention of Corruption Act that he accepted
the same as illegal gratification, particularly so, when the c
defence theory put forth was not accepted. It was contended
before this court that presumption under Section 20 of the Act
can be drawn only when the prosecution succeeded in
establishing with direct evidence that the delinquent public
servant had accepted or obtained gratification. It was further 0
urged that it was not enough that some currency notes were
handed over to the pubic servant to make it acceptance of
gratification and it was incumbent on the part of the prosecution
to further prove that what was paid amounted to gratification.
In support of the said contention reliance was placed on Sita
E
Ram (supra) and Sura) Mal v. State (Delhi Admn.} 33 . The
three-Judge Bench referred to Section 20(1) of the Act, the
pronouncements in Hawkins v. Powells Tillery Steam Coal Co.
Ltd34 and Suresh Budharmal Kalani v. State of Maharashtra 35
and adverted to the facts and came to hold as follows:-
F
"From those proved facts the court can legitimately draw
a presumption that the appellant received or accepted the
said currency notes on his own volition. Of course, the said
presumption is not an inviolable one, as the appellant could
rebut it either through cross-examination of the witnesses G
cited against him or by adducing reliable evidence. But if
the appellant fails to disprove the presumption the same
33. (1979) 4 sec 725.
34. (1911) 1 KB 988: 1911 WN 53.
35. (1998) 7SCC 337. H
534 SUPREME COURT REPORTS [2015] 1 S.C.R.
A would stick and then it can be held by the court that the
prosecution has proved that the appellant received the
said amount."
36. It is apt to note here the three-Judge Bench referred
to the observations in Hazari Lal (supra) and opined thus:-
8
"The aforesaid observation is in consonance with the line
of approach which we have adopted now. We may say with
great respect to the learned Judges of the two-Judge
Bench that the legal principle on this aspect has been
C correctly propounded therein."
37. In this regard Mr. Jain has placed reliance on the
authority B. Jayaraj (supra). In the said case the complainant
did not support the prosecution version and had stated in his
0 deposition that the amount that was paid by him to the accused
was with a request that it may be deposited in the bank as fee
for renewal of his licence for the fair price shop. The court
referred to Section 7 of the Act and observed as follows:-
"Insofar as the offence under Section 7 is concerned, it is
E a settled position in law that demand of illegal gratification
is sine qua non to constitute the said offence and mere
recovery of currency notes cannot constitute the offence
under Section 7 unless it is proved beyond all reasonable
doubt that the accused voluntarily accepted the money
F knowing it to be a bribe. The above position has been
succinctly laid down in several judgment of this Court. By
way of illustration reference may be made to the decision
in C.M. Sharma v. State of A.P36 . and C.M. Girish Babu
V. C.B./.37"
G
After so observing, the court proceeded to state thus:-
"ln the present case, the complainant did not support the
36. (2010) 15 sec 1.
37. (2009) 3 sec 779.
H
VINOD KUMAR v. STATE OF PUNJAB 535
[DIPAK MISRA, J.]
prosecution case insofar as demand by the accused is A
concerned. The prosecution has not examined any other
witness, present at the time when the money was allegedly
handed over to the accused by the complainant, to prove
that the same was pursuant to any demand made by the
accused. When the complainant himself has disowned B
what he had stated in the initial complaint (exbt. P-11)
before LW-9, and there is no other evidence to prove that
the accused had made any demand, the evidence of PW-
1 and contents of Exbt. P-11 cannot be relied upon to come
to the conclusion that the above material furnishes proof c
of the demand allegedly made by the accused. We are,
therefore, inclined to hold that the Ld. Trial court as well
as the High Court was not correct in holding the demand
alleged to be made by the accused as proved. The only
other material available is the recovery of the tainted
D
currency notes from the possession of the accused. In fact,
such possession is admitted by the accused himself. Mere
possession and recovery of the currency notes from the
accused without proof of demand will not bring home the
offence under Section 7. The above also will be conclusive
insofar as the offence under Section 13(1 )(d)(i)(ii) is
E
concerned as in the absence of any proof of demand for
illegal gratification, the use of corrupt or illegal means or
abuse of position as a public servant to obtain any
valuable thing of pecuniary advantage cannot be held to
be established." F
38. The said principle has been followed in M.R.
Purushotham v. State of Karnataka 38 . On an attentive and
cautious reading of the aforesaid decisions it is noticeable that
the court disbelieved the story of the prosecution as no other G
evidence was brought on record. In N. Narsinga Rao case the
accused was charged for the offences punishable under
Sections 7 read with Section 13(1 )(d) & (2) of the Act. The court,
38. 2014 (11) SCALE 467. H
536 SUPREME COURT REPORTS [2015] 1 S.C.R.
A as we have stated earlier, had referred to section 20(1) of the
Act and opined that from the proven facts the court can
legitimately draw a presumption that the delinquent officer had
received and accepted money. As we notice, the authorities
in 8. Jayaraj (supra) and M.R. Purushotam (supra) do not lay
B down as a proposition of law that when the complainant turns
hostile and does not support the case of the prosecution, the
prosecution cannot prove its case otherwise and the court
cannot legitimately draw the presumption under Section 20 of
the Act. Therefore the proposition, though industriously,
C presented by Mr. Jain that when Baj Singh, PW5, the
complainant, had turned hostile the whole case of the
prosecution would collapse is not acceptable and accordingly
hereby rejected.
39. Presently, we shall refer to the evidence of PW6, a clerk
D in the office of Tehsildar, Rajpura. He has deposed that on
25.1.1995, on the day of the raid, he joined the police party
headed by Narinder Pal Kaushal, DSP, on the instruction of
Tehsildar. He was introduced to Baj Singh, the complainant and
Jagdish Verma, a shadow witness. Thereafter, the complainant
E and the shadow witness, Jagdish Verma, were sent to the octroi
post and he stopped at some distance along with Narinder Pal
Kaushal who was waiting for signal and on receiving signal they
went inside the octroi post. As per his testimony Narinder Pal
K.aushal introduced himself as DSP and thereafter a glass of
F water was procured and sodium was added to it. Both the
hands of the accused were dipped in the glass of water and
the water turned pink. On search of the accused Rs.500/- in the
denomination of Rs.100/- were recovered. The numbers tallied
with the numbers mentioned in the memo, Ex. PE. The notes
G were taken into possession vide Ex. PH. As is manifest that
the said witness has supported the story of the prosecution in
ioto. The submission of Mr. Jain is that he is merely a witness
to recovery and solely on the basis of recovery no conviction
can be recorded. There can be no quarrel over the proposition
H that on the basis of mere recovery an accused cannot be found
VINOD KUMAR v. STATE OF PUNJAB 537
[DIPAK MISRA, J.]
guilty. It is the settled principle of law that mere recovery of the A
tainted money is not sufficient to record a conviction unless
there is evidence that bribe had been demanded or money was
paid voluntarily as bribe. In the absence of any evidence of
demand and acceptance of the amount as illegal gratification,
recovery would not alone be a ground to convict the accused. B
This has been so held in T Subramanian v. The State of Tamil
Nadu 39 , Madhukar Bhaskarrao Joshi · v. State of
Maharashtra 40 , Raj Rajendra Singh Seth v. State of
Jharkhand and Anr., 41 State of Maharashtra v. Dnyaneshwar
Laxman Rao Wankhede 42 , C.M. Girish Babu v. C.B./., c
Cochin43 , K. S. Panduranga v. State of Karnataka 44 and Satvir
Singh v. State of Delhi45 . The fact remains that PW6 has
supported the recovery in entirety. He has stood firm and
remained unshaken in the cross-examination and nothing has
been elicited to dislodge his testimony. His evidence has to be
D
appreciated regard being had to what has been deposed by
Jagdish Verma, PW7. In examination-in-chief he has deposed
that he had met tne DSP, Narinder Pal Kaushal who had
introduced him to Sher Singh, PW6. He has further stated that
he and PW5, Baj Singh, went inside the octroi post where
Vinod Kumar demanded bribe from Baj Singh whereupon Baj
E
Singh gave Rs.500/- to him, and at that juncture, he gave the
signal to the vigilance party to come inside where after and they
came and apprehended the accused. Apart from stating about
the demand and acceptance he had also stated that the hands
of the accused were dipped in that water and the colour of the F
water had turned light pink. It was transferred into a quarter
39. AIR 2006 SC 836.
40. (2000) a sec 571.
41. AIR2008SC3217. G
42. (2009) 15 sec 200.
43. AIR 2009 SC 2011.
44. (2012) 3 sec 121.
45. (2014) 13 sec 143.
H
538 SUPREME COURT REPORTS [2015] 1 S.C.R.
A bottle and was sealed and was taken into possession vide
recovery memo Ex.PG which was attested by him and Baj
Singh. The amount of Rs.500/- was recovered from right side
pant pocket of the accused. After making the arrangement for
the pant of the accused, the right side pocket of the pant of the
B accused was dipped in the mixture of water and sodium and
its colour turned light pink. It was also transferred into a quarter
bottle which was duly sealed and was taken into possession
vide recovery memo Ex.PJ. The pant was also taken into
possession vide recovery memo Ex.PJ. The notes recovered
c from the accused were compared with the numbers mentioned
in the memo and those tallied. The notes were taken into
possession vide recovery memo Ex.PF. A sum of Rs.310/- was
recovered from the further search of the accused which was
taken into possession vide recovery memo Ex.PK. Thus, from
the aforesaid testimony it is absolutely clear that he has
0
supported in entirety about the demand, acceptance and
recovery of money. It is necessary, though painful, to note that
PW? was examined-in-chief on 30.9.1999 and was cross-
examined on 25.5.2001, almost after 1 year and 8 months. The
E delay in said cross-examination, as we have stated earlier had
given enough time for prevarication due to many a reason. A
fair trial is to be fair both to the defence and the prosecution
as well as to the victim. An offence registered under the
Prevention of Corruption Act is to be tried with all seriousness.
We fail to appreciate how the learned trial Judge could exhibit
F such laxity in granting so much time for cross-examination in a
case of this nature. It would have been absolutely appropriate
on the part of the learned trial Judge to finish the cross-
examination on the day the said witness was examined. As is
evident, for no reason whatsoever it was deferred and the
G cross-examination took place after 20 months. The witness had
all the time in the world to be gained over. We have already
opined that he was declared hostile and re-examined. It is
settled in law that the testimony of a hostile witness can be relied
upon by the prosecution as well as the defence. In re-
H
VINOD KUMAR v. STATE OF PUNJAB 539
[DIPAK MISRA, J.]
examination by the public prosecutor this witness has accepted A
about the correctness of his statement in the court on 13.9.1999.
He has also accepted that he had not made any complaint to
the Presiding Officer of the Court in writing or verbally that the
Inspector was threatening him to make a false statement in the
Court. It has also been accepted by him that he had given the B
statement in the Court on account of fear of false implication
by the Inspector. He has agreed to have signed his statement
dated 13.9.99 after going through and admitting it to be correct.
It has come in the re-examination that he had not stated in his
statement dated 13.9.99 in the Court that recovery of tainted c
money was not effected in his presence from the accused or
that he had been told by the Inspector that amount has been
recovered from the accused. He had also not stated in his said
statement that the accused and witnesses were taken to the
Tehsil and it was there that he had signed all the memos. 0
40. Reading the evidence in entirety, his evidence cannot
be brushed aside. The delay in cross-examination has resulted
in his pre-varication from the examination-in-chief. But, a
significant one, his examination-in-chief and the re-examination
impels us to accept the testimony that he had gone into the E
octroi post and had witnessed about the demand and
acceptance of money by the accused. In his cross-examination
he has stated that he )1ad not gone with Baj Singh to the
vigilance department at any time and no recovery wa.s made
in his presence. The said part of the testimony, in our F
considered view, does not commend acceptance in the
backdrop of entire evidence in examination-in-chief and the re-
examination. The evidence of PW6 and PW7 have got
corroboration from PW8. He in all material particulars has stated
about the recovery and proven the necessary documents G
pertaining to the test carried with phenolphthalein powder. The
fact remains that the appellant's pocket contained
phenolphthalein smeared currency notes when he was
searched. It is apt to take note of the fact that the currency notes
H
540 SUPREME COURT REPORTS [2015] 1 S.C.R.
A that have been recovered from the right side of the pant pocket
were actually prepared by PW8 by smearing them with
phenolphthalein powder. The appellant was caught red-handed
with those currency notes. In is statement recorded under
Section 313 of CrPC he has taken the plea that he is innocent
B and has been falsely implicated due to animosity. No
explanation has been given as regards the recovery. Therefore,
from the above facts, legitimately a presumption can be drawn
that the accused-appellant had received or accepted the said
currency notes on his own volition. The factum of presumption
c and the testimony of PW6 and 7 go a long way to show that
the prosecution has been able to prove demand, acceptance
and recovery of the amount. Hence, we are inclined to hold that
the learned trial Judge and the High Court have appositely
concluded that the charges leveled against the accused have
duly been proven by the prosecution. It is not a case that there
0
is no other evidence barring the evidence of the complainant.
On the contrary there are adequate circumstances which
establish the ingredients of the offences in respect of which he
was charged.
E 41. Before parting with the case we are constrained to
reiterate what we have said in the beginning. We have
expressed our agony and anguish the manner in which trials in
respect of serious offences relating to corruption are being
conducted by the trial courts. Adjournments are sought on the
F drop of a hat by the counsel, even though the witness is present
in court, contrary to all principles of holding a trial. That apart,
after the examination-in-chief of a witness is over, adjournment
is sought for cross-examination and the disquieting feature is
that the trial courts grant time. The law requires special reasons
G to be recorded for grant of time but the same is not taken note
of. As has been noticed earlier, in the instant case the cross-
examination has taken place after a year and 8 months allowing
ample time to pressurize the witness and to gain over him by
adopting all kinds of tactics. There is no cavil over the
H
VINOD KUMAR v. STATE OF PUNJAB 541
[DIPAK MISRA, J.)
proposition that there has to be a fair and proper trial but the A
duty of the court while conducting the trial to be guided by the
mandate of the law, the conceptual fairness and above all
bearing in mind its sacrosanct duty to arrive at the truth on the
basis of the material brought on record. If an accused for his
benefit takes the trial on the path of total mockery, it cannot be B
countenanced. The Court has a sacred duty to see that the trial
is conducted as per law. If adjournments are granted in this
manner it would tantamount to violation of rule of law and
eventually turn such trials to a farce. It is legally impermissible
and jurisprudentially abominable. The trial courts are expected c
in law to follow the command of the procedure relating to trial
and not yield to the request of the counsel to grant adjournment
for non-acceptable reasons. In fact, it is not all appreciable to
call a witness for cross-examination after such a long span of
time. It is imperative if the examination-in-chief is over, the
D
cross-examination should be completed on the same day. If the
examination of a witness continues till late hours the trial can
be adjourned to the next day for cross-examination. It is
inconceivable in law that the cross-examination should be
deferred for such a long time. It is anathema to the concept of
E
proper and fair trial. The duty of the court is to see that not only
the interest of the accused ·as per law is protected but also the
societal and collective interest is safe-guarded. It is distressing
to note that despite series of judgments of this Court, the habit
of granting adjournment, really an ailment, continues. How long
shall we say, "Awake! Arise!". There is a constant discomfort. F
Therefore, we think it appropriate that the copies of the
judgment be sent to the learned Chief Justices of all the High
Courts for circulating the same among the learned trial Judges
with a command to follow the principles relating to trial in a
requisite manner and not to defer the cross-examination of a G
witness at their pleasure or at the leisure of the defence counsel,
for it eventually makes the trial an apology for trial and compels
the whole society to suffer chicanery. Let it be remembered that
law cannot allowed to be lonely; a destitute.
H
542 SUPREME COURT REPORTS [2015] t S.C.R.
A 42. In the ultimate analysis, we perceive no merit in the
appeal and consequently the same stands dismissed. As the
appellant is on bail, his bail bonds are cancelled. He be taken
into custody forthwith to suffer the sentence.
B Nidhi Jain Appeal dismissed •
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Prevention of Corruption Act"Sign in to search