Banarsi Dass Vs. State of Haryana
Prevention of Corruption Act, 1947
Section 5(2) – Penal Code, 1860, Section 161 – Public servant – Illegal gratification – Appeal against conviction – PW2, complainant and PW4 in whose presence money was accepted by appellant turning hostile – PW-2 in examination-in-chief stated that she apprehended demand whereas as per her statement under Section 161, IPC appellant demanded illegal gratification – PW-4 in cross-examination denied his presence at the time of acceptance of money by appellant and also the fact of making any statement to police – Statement of PW-10 and PW-11, police officials, against appellant found reliable. Held PW-10 & PW11 were not eye-witnesses and their statement was based on what was told to them by PW-2 and PW-4. Though recovery of money was proved but that alone in absence of establishment of essential ingredients to prove guilt under Section 5 (2) of the Act or under Section 161 of the IPC could not have sustained conviction.
Section 5 (1) (d) – Penal Code, 1860, Section 161 – Ingredients – Recovery of money from the accused – Whether sufficient to sustain conviction. Held, mere recovery of money by itself is not enough and in absence of substantive evidence for demand and acceptance conviction cannot be sustained. Under Section 161 IPC and Section 5(1)(d) of the Act voluntary demand and acceptance of the money is sine qua non to the conviction of the accused. M.K. Harshan’s case, C.M. Girish Babu’s case and Sita Ram’s case referred.
We are not and should not even be taken to have suggested that PW-10 and PW-11 have not made correct statement before the Court or that the Court has disbelieved any part of their statement. But, fact of the matter remains that their statement with regard to demand and acceptance is based on hearsay i.e. what was told to them together by PW-2 and even by PW-4 at that stage. The money was certainly recovered from the pocket of the accused vide memo Ex. P-D. We, therefore, do not accept the contention on behalf of the accused that the amount was not recovered and the recovery is improper in law. Ex. P-D has duly been attested by witnesses. Thus, it cannot be said that the recovery from the pocket of the accused is unsustainable in law and is of no consequence. (Para 10)
In these circumstances, it is difficult for the Court to hold that the prosecution has established the offence against the accused, that he accepted the money voluntarily as illegal gratification. The effect of the statement of PW-2 and PW-4 has a substantial adverse effect on the case of the prosecution. In the absence of support of PW-2 and PW-4, the prosecution has not been able to establish the charge (demand and acceptance of illegal gratification by the accused), thus entitling him to some benefit on the technical ground of two witnesses i.e. PW-2 and PW-4, turning hostile. (Para 15)
To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. (Para 11)
Mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. (Para 13)
2. M.K. Harshan v. State of Kerala [1996 (11) SCC 720] (referred) (Para 11)
3. Sita Ram v. State of Rajasthan [1975 (2) SCC 227] (referred) (Para 13)
1. The present appeal under Article 136 of the Constitution of India is directed against the final judgment and order of conviction dated 20.11.2002 passed by the learned Single Judge of the High Court of Punjab & Haryana at Chandigarh. Learned counsel appearing for the appellant has raised challenge to the impugned judgment, inter alia, but primarily on the following grounds:
(a) There is no evidence to prove demand and voluntary acceptance of the alleged bribe so as to attract the offence under Section 5(2) of the Prevention of Corruption Act, 1947 (For short, `the Act’). Reliance has been placed by the judgment of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala [JT 2009 (3) SC 32 : 2009 (3) SCC 779].
(b) The High Court as well as the trial Court have passed an order of conviction despite the fact that there was serious contradiction between the statements of the prosecution witnesses. And in fact, there was no cogent and reliable evidence to support the charge against the appellant. Even the recovery has not been proved in accordance with law. These factors clearly justify the benefit of doubt in favour of the appellant and thus entitling the accused of judgment of acquittal.
(c) The punishment awarded to the appellant is unreasonably excessive. The appellant has faced the agony