State Of Odisha vs Rabinarayan Patra
2022 Latest Caselaw 5432 Ori

                     IN THE HIGH COURT OF ORISSA, CUTTACK

                                       GCRLA No. 13 of 2016

        An appeal under section 378 of the Code of Criminal Procedure
        from the judgment and order dated 22.09.2009 passed by
        Additional Special Judge (Vigilance), Bhubaneswar in T.R. No.16
        of 1997.
                               -----------------------------

State of Odisha (G.A. Vigilance) ........... Appellant

-Versus-

               Rabinarayan Patra                      ...........                      Respondent


                      For Appellant :                     -              Mr. Sangram Das
                                                                         Standing Counsel (Vig.)

                      For Respondent:                     -              Mr. Sobhan Panigrahi
                                                                         Advocate
                                           -----------------------------

        P R E S E N T:

                           THE HON'BLE MR. JUSTICE S.K. SAHOO

--------------------------------------------------------------------------------------------------- Date of Hearing: 15.09.2022 Date of Judgment: 12.10.2022

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S.K. SAHOO, J. The respondent Rabinarayan Patra faced trial in the

Court of learned Additional Special Judge (Vigilance),

Bhubaneswar in T.R. No.16 of 1997 for offences punishable

under section 7 and section 13(2) read with section 13(1)(d) of

the Prevention of Corruption Act, 1988 (hereafter 'P.C. Act') on // 2 //

the accusation that on 30.06.1993 he being employed as a Junior

Clerk in the office of the Sub-Registrar, Sakhigopal and being a

public servant accepted for himself illegal gratification amounting

to Rs.200/- (rupees two hundred) other than legal remuneration

and also accepted for himself gratification of Rs.500/- (rupees

five hundred) other than the legal remuneration on 03.07.1993

from Sudarsan Behera (P.W.5) as a motive and reward for

delivering two sale deeds to him and thus by corrupt and illegal

means obtained for himself the gratification money at his office

as pecuniary advantage by abusing his official position as such

public servant without any public interest.

The learned trial Court vide impugned judgment and

order dated 22.09.2009 has been pleased to hold that the

investigation having been done by the trap laying officer who is

an interested witness for the prosecution, the prosecution case is

susceptible to reasonable doubt and accordingly held the

respondent not guilty and acquitted him of all the charges.

The State of Odisha, G.A Vigilance has preferred this

appeal challenging the aforesaid judgment and order of acquittal.

2. The prosecution case, as per the first information

report lodged by Sudarsan Behera (P.W.5) of village Bira

Ramachandrapur is that his brother-in-law Dhruba Charan

// 3 //

Behera purchased two plots from Sasimani Jena and Dibakar

Jena (P.W.2) by executing two separate sale deeds vide sale

deed nos.849 and 850 in the office of Sub-Registrar, Sakhigopal

after depositing all the required fees as per law and the vendors

of both the sale deeds gave the receipts to P.W.5 to obtain the

sale deeds from the office of the Sub-Registrar. As the sale deeds

were to be delivered to the vendee within two to three days of its

registration, on 30.06.1993 P.W.5 met the respondent who was

the Junior Clerk in the office of the Sub-Registrar, Sakhigopal in

his office and asked him to deliver the sale deeds, but the

respondent demanded illegal gratification of Rs.2,200/- (rupees

two thousand two hundred) from P.W.5 and told that if he would

not pay such amount, both the sale deeds would be objected for

registration on the ground of under-valuation for which P.W.5

shall have to pay an excess amount of Rs.4,500/- (rupees four

thousand five hundred). Being apprehensive of under-valuation,

P.W.5 agreed to give Rs.500/- to the respondent as gratification

against his will, but the respondent did not agree to it and

threatened to send the sale deeds for under-valuation on the

same day. However, after much persuasion of P.W.5, the

respondent asked P.W.5 to give him Rs.1,200/- (rupees one

thousand two hundred). P.W.5 paid Rs.200/- to the respondent

// 4 //

in advance as gratification instantly and further assured the

respondent to give the balance of Rs.1,000/- (rupees one

thousand) within ten days against his will. P.W.5 then met the

respondent on 02.07.1993 in the office of Sub-Registrar,

Sakhigopal and expressed his inability in arranging the money

and requested him to take Rs.500/- (rupees five hundred) and to

hand over both the sale deeds to him, however the respondent

did not pay any heed to the request of P.W.5 and got annoyed

and insisted for payment of Rs.1,000/- (rupees one thousand).

Finding no way out, P.W.5 told the respondent that he would

arrange Rs.500/- (rupees five hundred) and give the same to

him on 03.07.1993 in the afternoon and the balance amount of

Rs.500/- (rupees five hundred) would be paid within five days

thereafter for taking the sale deeds. P.W.5 requested the

respondent not to under-value the sale deeds to which the

respondent agreed. P.W.5 reported in writing the matter to the

Superintendent of Police, Vigilance, Cuttack on 02.07.1993 for

taking necessary action against the respondent.

On the basis of such first information report, the

Superintendent of Police, Vigilance, Cuttack directed the officer in

charge of the Vigilance Police Station, Cuttack to register a case

and accordingly, Cuttack Vigilance P.S. Case No.34 dated

// 5 //

02.07.1993 was registered on under section 13(2) read with

section 13(1)(d) and section 7 of the P.C. Act and Sri U. Rama

Rao, Inspector of Vigilance, Cuttack was directed to lay a trap for

detection of the case against the respondent and to take up

investigation of the case.

Sri U. Rama Rao, Inspector of Vigilance, Cuttack laid

a trap and after preparation in the Vigilance Office, Puri, the trap

party proceeded to Sub-Registrar's Office, Sakhigopal along with

P.W.5 and two official witnesses, out of which one was the

overhearing witness Siva Narayan Acharya (P.W.4) and the other

was Sanat Kumar Pattanayak (P.W.6). After the respondent

demanded and received the tainted money from P.W.5, P.W.4

passed signal to the raiding party who rushed to the spot and

apprehended the respondent and his hand washes was taken.

The tainted money was recovered from the table of the

respondent which was covered by some blank challan form and

the number and denomination of the tainted currency notes

tallied with the number and denomination of the tainted notes

mentioned in the preparation report. Thereafter, the solution

bottles, tainted money, four fold white paper and copy of the

preparation report were seized by the Inspector of Vigilance,

Cuttack at the spot and finally a detection report was prepared

// 6 //

and also the original sale deeds were seized from the office of

Sub-Registrar. The brass seal used in sealing the bottles was

given in zima of P.W.6 with a direction to produce the same

before the Court as and when required and on completion of

investigation, charge sheet was submitted on 24.08.1994 against

the respondent under section 7 and section 13(2) read with

section 13(1)(d) of the P.C. Act.

3. The defence plea of the respondent is one of denial.

It is pleaded that on the relevant date and time of occurrence,

while he was talking with staff, namely, Khageswar Sahu and

Guru Charan Das, four to five persons entered inside the office of

Sub-Registrar and caught hold of both his hands and told him to

count some money and thereafter, took his hand washes. The

respondent denied to have demanded or accepted any bribe

money from P.W.5.

4. During course of trial, in order to prove its case, the

prosecution examined seven witnesses.

P.W.1 Bijay Kumar Nand was the Additional District

Magistrate -cum- District Registrar, Puri, who accorded sanction

for prosecution of the respondent.

// 7 //

P.W.2 Dibakar Jena is one of the vendors, who had

sold the land to the brother-in-law of P.W.5 and executed a sale

deed on 23.06.1993.

P.W.3 Satyananda Maharana was the Assistant

Director of S.F.S.L., Rasulgarh, Bhubaneswar, who examined the

exhibits of the case and proved the C.E. Report marked as Ext.3.

P.W.4 Siva Narayan Acharya was working as Junior

Clerk in the Office of the C.T.O. Circle-I, Puri who acted as over

hearing witness and he accompanied with the raiding party and

gave signal to the raiding party after the respondent accepted

the tainted money from P.W.5. He is also a witness to the seizure

of three bottles, currency notes, two sale deeds and the counter

foils of the receipts given to P.W.5 for receiving the sale deeds by

the vendees, purse and amount of the respondent, paper of

tainted money and the detection report.

P.W.5 Sudarsan Behera is the informant in the case.

He supported the prosecution case to a great extent but he was

declared hostile.

P.W.6 Sanat Kumar Patnaik was the Addl. C.T.O.,

Puri and he is a witness to the preparation report (Ext.4) in the

Vigilance Office, Puri. He further stated about the recovery of

tainted money from the table of the respondent. He verified and

// 8 //

compared the numbers of the currency notes noted in a paper

with the numbers of seized tainted money. He further stated

about the hand wash of the appellant taken in the sodium

carbonate solution to have turned to pink. He also took zima of

the brass seal from the I.O. which he produced before the

learned trial Court. He further stated that as the respondent had

held the currency notes in his right hand, his right hand so also

his left hand was washed with liquid solution which turned pink

colour. He further stated that after counting of the currency

notes, his hand was also washed with liquid solution and it

turned pink colour and the pink colour liquid solution were

preserved in bottles and sealed and the cash and the solution

bottles were also sealed at the spot.

P.W.7 Sarat Kumar Paramguru was the Inspector,

Vigilance, Cuttack Division, Cuttack and he was the member of

trap party. Inspector U. Rama Rao was the Investigating Officer

of the case who on completion of investigation, submitted charge

sheet against the respondent, but since he died, P.W.7 proved

the entire trap formalities and investigation carried out by

Inspector U. Rama Rao.

The prosecution exhibited twenty documents. Ext.1

is the sanction order, Ext.2 is the sale deed, Ext.3 is the C.E.

// 9 //

Report, Ext.4 is the preparation report, Ext.5 is the seizure list

relating to bottles, Ext.6 is the seizure list relating to solution

bottle, Ext.7 is the seizure list relating to currency notes, Ext.8 is

the seizure list relating to two sale deeds and counter foil, Ext.9

is the seizure list relating to purse and amount, Ext.10 is the

seizure list relating to paper of tainted money, Ext.11 is the

detection report, Ext.12 is the F.I.R., Ext.13 is the seizure list,

Exts.14 and 14/1 are the receipts, Exts.15 to 15/4 are the G.C.

Notes, Ext.16 is the sale deed, Ext.17 is the four fold paper,

Ext.18 is the receipt prepared by U. Rama Rao, Ext.19 is the

forwarding report along with signature of U. Rama Rao and

Ext.20 is the rough spot map.

The material objects i.e. glass bottles containing

some colourless solution whereas the other two are empty have

been marked as M.O.I to M.O.V and the brass seal has been

marked as M.O.VI on behalf of the prosecution.

The respondent examined one witness as D.W.1,

namely, Rama Chandra Sethi, who was peon at Sub-Registrar

Office, Sakhigopal and he stated that while he was standing near

the seat of the respondent, three to four persons entered inside

the office room, caught hold of both the hands of the respondent

// 10 //

to which they protested and they disclosed their identity as

Vigilance Officers.

5. The learned trial Court formulated the following two

points for determination:-

(i) Whether the accused Sri Patra being a public servant had accepted for himself illegal gratification of Rs.200/- (rupees two hundred) and Rs.500/- (rupees five hundred) on 30.06.1993 and 03.07.1993 respectively from complainant Sudarsan Behera as a motive and reward for delivering two registered sale deeds to him, which was his official act?

(ii) Whether Sri Patra, being a public servant, by corrupt and illegal means had obtained for himself cash of Rs.200/- (rupees two hundred) and Rs.500/- (rupees five hundred) from Sri Behera on 30.06.1993 and 03.07.1993 respectively at his office as pecuniary advantage by abusing position as public servant without any public interest?

6. After analyzing the evidence on record, the learned

trial Court has been pleased to hold that there are tell-tale

circumstances which do indicate that there must have been a

demand and therefore, the circumstances discussed rendered

support to the statement of P.W.4 that the demand at the time

of visit of P.W.5 to the respondent on 03.07.1993 must be

// 11 //

pursuant to his earlier demand. The learned trial Court observed

that after carefully scrutinizing the oral and documentary

evidence led by the prosecution as well as the C.E. Report and

the defence plea, the prosecution has succeeded to bring home

the charges against the respondent under section 7 and section

13(2) read with section 13(1)(d) of the P.C. Act. However, the

learned trial Court held that the Vigilance Inspector late U. Rama

Rao was the trap laying officer in the vigilance raid and he was

also the Investigating Officer and the investigation of the case by

the trap laying officer himself is not desirable in as much as

there is possibility of tainted investigation in order to boost up a

prosecution case, so as to create evidence which may enable the

Court to record a conviction. It was further held that the

investigation having been done by the trap laying officer who is

an interested witness for the prosecution, the prosecution case is

susceptible to reasonable doubt and on that ground, the learned

trial Court acquitted the respondent of all the charges.

7. Mr. Sangram Das, learned Standing Counsel for the

Vigilance Department challenging the impugned judgment and

order of acquittal of the respondent contended that the learned

trial Court has not properly appreciated the evidences of P.Ws.4,

5 and 7 who are consistent and there is no reason to discard

// 12 //

their evidence. He further urged that P.W.5 in his chief

examination has supported the prosecution story in its entirety

but in the cross-examination, he has taken the path of

prevarication and it is no more res integra that even if a witness

is characterized as a hostile witness, his evidence is not

completely effaced and such evidence remains admissible in the

trial and there is no legal bar to base a conviction upon his

testimony if corroborated by other reliable evidence. He further

argued that the evidence of P.W.5 has got corroboration from

the shadow witness (P.W.4) who in all material particulars has

stated about the factum of demand and acceptance of the

tainted money by the respondent and its recovery. The evidence

of P.W.7, the member of the raiding party also lends support and

renders immense assistance in establishing the case of the

prosecution case with regard to the factum of recovery of the

tainted money from the possession of the respondent. He further

argued that the chemical examination report (Ext.3)

unequivocally corroborates the trustworthy evidence of P.Ws.4, 5

and 7 and thus, the ocular testimony gets duly corroborated by

documentary evidence for which the prosecution has proved its

case relating to demand, acceptance and recovery of the tainted

money from the respondent to the hilt. He further argued that

// 13 //

the findings of the learned trial Court at paragraph-10 of the

impugned judgment that the prosecution has succeeded to bring

home the charges against the respondent, neither suffer from

any perversity nor can be faulted with. With regard to the

findings of the learned trial Court that the investigation having

been done by the trap laying officer, the respondent is entitled

for acquittal, learned Standing Counsel submitted that in the

instant case, though the investigation has been done by the trap

laying officer who was a member of the raiding party yet, in fact,

nothing has been elicited that he was in anyway personally

interested to get the respondent convicted inasmuch as there is

no clinching evidence on record to point out any circumstances

by which the investigation caused prejudice or was biased

against the respondent. He further submitted that the

investigation though done by the trap laying officer yet he was

not in any way personally interested in the case and there is also

nothing on record to indicate any sort of bias in the process of

investigation and thus, such findings recorded in para-11 of the

impugned judgment are neither defensible nor legally

sustainable. He further submitted that the reasonings assigned

by the learned trial Court for acquitting the respondent is quite

faulty and unreasonable and since the impugned judgment of the

// 14 //

learned trial Court is highly unreasonable and the view taken

therein is not sustainable, the same should be set aside and the

respondent should be convicted of the offence charged. In

support of such contention, he has relied upon the decision of

the Hon'ble Supreme Court in the case of Vinod Kumar -Vrs.-

State of Punjab reported in (2015) 3 Supreme Court Cases

220 and Mukesh Singh and others -Vrs.- State (Narcotic

Branch of Delhi) reported in (2020) 79 Orissa Criminal

Reports (S.C.) 924.

Mr. Sobhan Panigrahi, learned counsel for the

respondent, on the other hand, supported the impugned

judgment and submitted that though the respondent was

acquitted, but the learned trial Court after analyzing the

evidence available on record came to a conclusion that the

prosecution has succeeded in bringing home the charges against

the respondent under section 7 and section 13(2) read with

section 13(1)(d) of the P.C. Act which is against the weight of

the evidence available on record. He further submitted that the

prosecution has miserably failed to prove any demand for the

alleged illegal gratification and the essential ingredients of the

offences both under section 7 and section 13(2) read with

section 13(1)(d) of the P.C. Act are conspicuously absent. He

// 15 //

further submitted that P.W.5 is a wholly unreliable witness and

the brother-in-law of P.W.5 was also not examined for reasons

best known to the prosecution which creates suspicion. He

further argued that mere acceptance and recovery of tainted

currency notes from an accused without proof of demand would

not establish an offence under section 7 as well as section

13(1)(d)(i) & (ii) of the P.C. Act. 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 or pecuniary advantage cannot be held to be

proved. The proof of demand is an essential and permeating

mandate for an offence under sections 7 and 13 of the P.C. Act.

Section 20 of the P.C. Act which permits a presumption to be

raised relates to an offence only under section 7 P.C. Act and not

to those under section 13(1)(d)(i) & (ii) of the P.C. Act. In

absence of proof of demand, legal presumption under section 20

of the P.C. Act would not arise. He further argued that the

prosecution miserably failed to establish the proof of demand by

the respondent. The investigation by the trap laying officer

caused prejudice to the respondent, but the biasness of the I.O.

could not be brought on record as he could not be examined on

account of his death and therefore, if at this stage almost after

// 16 //

thirty years of the date of occurrence, the order of acquittal is

interfered with, it would cause serious miscarriage of justice and

therefore, the GCRLA should be dismissed. In support of such

contention, he has relied upon the decisions of the Hon'ble

Supreme Court in the cases of Popular Muthiah -Vrs.- State

represented by Inspector of Police reported in (2006) 7

Supreme Court Cases 296, Chandrappa and others -Vrs.-

State of Karnataka reported in (2007) 4 Supreme Court

Cases 415, P. Satyanarayana Murthy -Vrs.- District

Inspector of Police, State of Andhra Pradesh reported in

(2015) 10 Supreme Court Cases 152, B. Jayaraj -Vrs.-

State of A.P. reported in 2014 Criminal Law Journal 2433,

K. Shanthamma -Vrs.- State of Telengana reported in

(2022) 86 Orissa Criminal Reports (S.C.) 345, Suraj Mal

-Vrs.- The State (Delhi Administration) reported in A.I.R.

1979 Supreme Court 1408, State of Delhi -Vrs.- Shri Ram

Lohia reported in A.I.R. 1960 Supreme Court 490 and Sat

Paul -Vrs.- Delhi Administration reported in A.I.R. 1976

Supreme Court 294.

8. Adverting to the contentions raised by the learned

counsel for both the parties, there is no dispute that the order of

acquittal has been passed on the sole ground that investigation

// 17 //

having been done by the trap laying officer who is an interested

witness for the prosecution and therefore, the prosecution case

is susceptible to reasonable doubt.

In the case of Vinod Kumar (supra), the Hon'ble

Supreme Court held as follows:-

"30. In the instant case, P.W.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 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 (Ref: (2004) 5 Supreme Court Cases 230) would be squarely applicable to the present case and, accordingly, without any reservation we repel the submission so assiduously urged by Mr. Jain, learned Senior Counsel for the appellant."

In the case of Mukesh Singh -Vrs.- State

(Narcotic Branch of Delhi) reported in (2020) 79 Orissa

Criminal Reports (SC) 924, which is a five-Judge Constitution

Bench decision constituted to decide the correctness of the ratio

laid down in the case of Mohan Lal -Vrs.- The State of Punjab

reported in (2018) 17 Supreme Court Cases 627, it was

held that whether the investigation conducted by the concerned

// 18 //

informant was fair investigation or not is always to be decided at

the time of trial. The concerned informant/investigator will be

cited as a witness and he is always subject to cross-examination.

There may be cases in which even the case of the prosecution is

not solely based upon the deposition of the informant/informant-

cum-investigator but there may be some independent witnesses

and/or even the other police witnesses. The testimony of police

personnel will be treated in the same manner as testimony of

any other witness and there is no principle of law that without

corroboration by independent witnesses, his testimony cannot be

relied upon. It has also been held that there is no reason to

doubt the credibility of the informant or the entire case of the

prosecution solely on the ground that the informant has

investigated the case. Solely on the basis of some apprehension

or the doubts, the entire prosecution version cannot be discarded

and the accused is not to be straightway acquitted unless and

until the accused is able to establish and prove the bias and the

prejudice. While concluding, it was observed that in a case where

the informant himself is the investigator, by that itself cannot be

said that the investigation is vitiated on the ground of bias or the

like factor. The question of bias or prejudice would depend upon

the facts and circumstances of each case. It was held that

// 19 //

merely because the informant is the investigator, by that itself

the investigation would not suffer the vice of unfairness or bias

and therefore, on the sole ground that informant is the

investigator, the accused is not entitled to acquittal. The matter

has to be decided on a case to case basis. It was held that a

contrary decision in the case of Mohan Lal (supra) and any

other decision taking a contrary view that the informant cannot

be the investigator and in such a case the accused is entitled to

acquittal are not good law and they are specifically overruled.

Therefore, the sole ground of acquittal of the

respondent passed by the learned trial Court is not acceptable.

However, the submission of the learned Standing Counsel for the

Vigilance Department that in view of the finding of the learned

trial Court that the prosecution has succeeded to bring home the

charges against the respondent, which does not suffer from any

perversity, the respondent should be convicted of the offences

charged, requires thorough consideration.

9. The crux of the matter is whether a finding arrived at

by the trial Court against an accused in a case of acquittal can be

reappreciated and reconsidered where the judgment and order of

acquittal has been challenged in an appeal by the State.

// 20 //

In the case of Popular Muthiah (supra), the Hon'ble

Supreme Court held as follows:-

"27. While exercising its appellate power, the jurisdiction of the High Court although is limited but, in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revisional jurisdiction and/or inherent jurisdiction not only when an application therefor is filed but also suo motu. It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdictions in the matter. Keeping in view the intention of Parliament, while making the new law the emphasis of Parliament being 'a case before the Court' in contradistinction from 'a person who is arrayed as an accused before it' when the High Court is seized with the entire case although would exercise a limited jurisdiction in terms of Section 386 of the Code of Criminal Procedure, the same, in our considered view, cannot be held to limit its other powers and in particular that of Section 482 of the Code of Criminal Procedure in relation to the matter which is not before it."

// 21 //

In the case of Chandrappa (supra), the Hon'ble

Supreme Court held as follows:-

"42. From the above decisions, in our considered view, the following general principles regarding powers of Appellate Court while dealing with an appeal against an order of acquittal emerge:

(1) An Appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an Appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an Appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an Appellate Court to interfere with acquittal than to curtail

// 22 //

the power of the Court to review the evidence and to come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial court."

Therefore, the finding of the learned trial Court that

the prosecution has succeeded to bring home the charges

against the appellant under section 7 and section 13(2) read

with section 13(1)(d) of the P.C. Act is not final and this Court

can reconsider and reappreciate the evidence on record and can

reach its own conclusion, both on questions of fact and of law. As

// 23 //

an Appellate Court, there is no limitation, restriction or condition

on exercise of power of reconsideration and reappreciation of

evidence on record and also the reasoning given by the trial

Court. This Court has as wide powers of appreciation of evidence

in an appeal against an order of acquittal as in the case of an

appeal against an order of conviction, subject to the riders that

the presumption of innocence with which the accused person

starts in the trial court continues even up to the appellate stage.

Once the appeal is entertained against the order of acquittal, the

High Court is entitled to re-appreciate the entire evidence

independently and come to its own conclusion. An Appellate

Court while dealing with an appeal against acquittal passed by

the learned trial Court, is required to bear in mind that in case of

acquittal, there is double presumption in favour of the accused.

Firstly, the presumption of innocence is available to him under

the fundamental principle of criminal jurisprudence that every

person shall be presumed to be innocent unless he is proved

guilty by a competent court of law. Secondly, the accused having

secured his acquittal, the presumption of his innocence is further

reinforced, reaffirmed and strengthened by the trial Court.

// 24 //

10. Now, on the basis of the aforesaid rival legal

contentions urged on behalf of the parties, the following points

would arise for consideration of this Court:-

i) Whether the demand, acceptance and

recovery of gratification are proved by the

prosecution and whether the presumption of

offence alleged to have been committed by the

respondent would arise in this case?

ii) Whether the findings and reasons recorded

on the charges by the learned trial Court are

based on proper appreciation of legal evidence

on record and within the legal parameters laid

down by the Hon'ble Supreme Court and this

Court in its decisions?

11. In a case of this nature, there is no dispute that the

prosecution has to successfully prove the foundational facts i.e.

the demand, acceptance of bribe money and recovery of the

same from the accused and then only the statutory presumption

under section 20 of the P.C. Act against the guilt of the accused

would arise and the accused has to adduce evidence relating to

the rebuttal of such presumption. Demand of illegal gratification

is sine qua non for constituting the offence under section 7 and

// 25 //

section 13(2) read with section 13(1)(d) of the P.C. Act. Mere

receipt of amount by the accused is not sufficient to fasten the

guilt, in the absence of any evidence with regard to demand and

acceptance of the amount as illegal gratification. Mere recovery

of tainted money from the possession of the accused is not

sufficient to convict him, unless there is evidence to prove

payment of bribe or to show that the money was taken

voluntarily as bribe.

In the case of P. Satyanarayana Murthy (supra),

the Hon'ble Supreme Court held as follows:-

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.

// 26 //

26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas

-Vrs.- State of Assam : (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused."

In the case of B. Jayaraj (supra), the Hon'ble

Supreme Court held as follows:-

"7. Insofar as the offence under Section 7 is concerned, it is 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 knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma -Vrs.- State of A.P. :

// 27 //

(2010) 15 SCC 1 and C.M. Girish Babu

-Vrs.- C.B.I. : (2009) 3 SCC 779.

8....We are, therefore, inclined to hold that the learned 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 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 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 or pecuniary advantage cannot be held to be established."

In the case of K. Shanthamma (supra), the Hon'ble

Supreme Court held as follows:-

"7....The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act."

// 28 //

12. Keeping the above principles in view, let me now

examine the materials on record to judge whether the

prosecution has successfully proved the foundational facts i.e.

the demand, acceptance of bribe money voluntarily by the

respondent from P.W.5 and recovery of the same from the

respondent.

P.W.5, the decoy has stated that his brother-in-law

Dhruba Charan Behera had purchased two plots on 23.06.1993

under different sale deeds which were to be registered in the

Office of Sub-Registrar, Satyabadi and he was authorized by his

brother-in-law to receive the two sale deeds under authorization

ticket. He further stated that he came to the Sub-Registrar Office

at Satyabadi on 30.06.1993 and approached the respondent and

the respondent asked him to pay Rs.4,000/- (rupees four

thousand) or else the sale deeds might be undervalued. P.W.5

further stated that he came back and informed the same to his

brother-in-law and on the same day, he again came to the Office

of the Sub-Registrar with his brother-in-law and approached the

respondent and the respondent told them to pay Rs.2,200/-

(rupees two thousand two hundred) and to take back the sale

deeds and since the respondent compelled them to pay the

money, they agreed and paid him Rs.200/- in advance. He

// 29 //

further stated that he came to Vigilance Office at Cuttack on

02.07.1993 and lodged the written report (Ext.12).

The evidence of P.W.5 is contrary to what he has

mentioned in the F.I.R. wherein he has stated that the initial

demand by the respondent was Rs.2,200/- (rupees two thousand

two hundred) and not Rs.4,000/- (rupees four thousand) as

stated in his evidence. In the evidence, P.W.5 has stated that the

bribe amount was settled at Rs.2,200/- (rupees two thousand

two hundred) whereas in the F.I.R., it is mentioned that it was

settled at Rs.1,200/- (rupees one thousand two hundred). In the

F.I.R., though P.W.5 mentioned that on 02.07.1993 he met the

respondent in the Office of Sub-Registrar and told him that he

would arrange Rs.500/- (rupees five hundred) and give the same

to him on 03.07.1993 in the afternoon and the balance amount

of Rs.500/- (rupees five hundred) would be paid within five days

thereafter for taking the sale deeds, but no such statement has

been made by P.W.5 while deposing in Court.

Though in his evidence, P.W.5 has stated that on

30.06.1993, he approached the respondent in his office for two

times and on the second time, his brother-in-law was there with

him and the demand amount was settled at Rs.2,200/- (rupees

two thousand two hundred) in the presence of his brother-in-law,

// 30 //

but no such thing has been mentioned in the F.I.R. The brother-

in-law of P.W.5 has neither been cited as a witness in the charge

sheet nor examined in Court and the prosecution has offered no

explanation for the same. It cannot be denied that the brother-

in-law of P.W.5 is a very vital witness and it is he who had

purchased the plots and applied for registration of sale deeds and

the demand of bribe was made in that connection. In a criminal

trial, the prosecution must act fairly and honestly and must never

adopt the device of keeping back the witnesses from the Court

only because the evidence is likely to go against the prosecution

case. It is the duty of the prosecution to assist the Court in

reaching to a proper conclusion in regard to the case which is

brought before it for trial. It is no doubt open to the Prosecutor

not to examine some witnesses cited in the charge sheet and to

make a selection of witnesses, but the selection must be made

fairly and honestly and not with a view to suppress inconvenient

witnesses from the witness box. If the material witnesses are

deliberately kept back and no explanation is offered, the Court

may draw an adverse inference against the prosecution and may,

in a proper case, record the failure of the prosecution to examine

such witnesses as constituting a serious infirmity in the proof of

the prosecution case.

// 31 //

It is of course correct that P.W.5 has been declared

hostile by the prosecution and the learned Special Public

Prosecutor was allowed by the Court to put leading questions and

on being confronted with his previous statement, he has

admitted to have stated to the I.O. that when the respondent

demanded Rs.2,200/-, he (P.W.5) asked him to pay only

Rs.1,200/- and that he paid Rs.200/- and Rs.500/- on two

different dates and promised to pay the balance amount of

Rs.500/- on a subsequent date. In my humble view, such

admission cannot be used as substantive evidence in the case.

In the case of State of Delhi -Vrs.- Shri Ram Lohia

reported in A.I.R. 1960 S.C. 490, it is held as follows:-

"13....Statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under Section 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case."

A statement recorded under section 161 Cr.P.C. is

not a substantive piece of evidence. In view of the proviso to

sub-section (1) of section 162 Cr.P.C., the statement can be

// 32 //

used only for the limited purpose of contradicting the maker

thereof in the manner laid down in the said proviso. Such a

statement cannot be treated as evidence in the criminal trial but

may be used for the limited purpose of impeaching the credibility

of a witness. Therefore, the admission made by P.W.5 with

reference to his previous statement made before the I.O. would

not make such statement admissible, much less be used as

substantive evidence in the case.

In the case of Sat Paul (supra), it is held that even

in a criminal prosecution when a witness is cross-examined and

contradicted with the leave of the Court, by the party calling

him, his evidence cannot, as a matter of law, be treated as

washed off the record altogether. It is for the Judge of fact to

consider in each case whether as a result of such cross-

examination and contradiction, the witness stands thoroughly

discredited or can still be believed in regard to a part of his

testimony. If the Judge finds that in the process, the credit of the

witness has not been completely shaken, he may, after reading

and considering the evidence of the witness, as a whole, with

due caution and care, accept, in the light of the other evidence

on the record, that part of his testimony which he finds to be

creditworthy and act upon it. If in a given case, the whole of the

// 33 //

testimony of the witness is impugned, and in the process, the

witness stands squarely and totally discredited, the Judge

should, as matter of prudence, discard his evidence in toto.

No doubt, P.W.5 has stated in the chief examination

that the respondent demanded bribe from him at two instances

prior to the date of trap, but in the cross-examination, he has

stated that on 30.06.1993 he was not present when his brother-

in-law paid Rs.200/- to the respondent and that the monetary

dealing was with his brother-in-law and not with him and even

on 02.07.1993 the discussion about the monetary transaction

was made with his brother-in-law and not with him. P.W.5

further stated that on 02.07.1993 his brother-in-law came to him

at about 12 noon and told him that the respondent was

demanding money and doing mischief to give the sale deed and

further asked him to approach the vigilance office to give him a

lesson. In view of such evidence adduced by P.W.5 in the cross-

examination, it can be said that he had no direct knowledge

about the alleged demand of bribe money or acceptance of

Rs.200/- by the respondent in that connection and since he came

to know about the same from his brother-in-law, who has not

been examined during trial, the evidence of P.W.5 in that respect

is hearsay one and it is not admissible. Section 60 of the

// 34 //

Evidence Act mandates oral evidence must in all cases should be

direct, thereafter in the section, direct evidence has been

explained that a fact capable of being seen would be relevant

only when it is deposed by a witness, who saw it, so is the case

with a fact which could be heard or which could be perceived, the

emphasis is on the mode by which a fact by whatever can be

heard or perceived by any person, only that person's deposition

would be treated to be relevant to prove it. Hearsay evidence is

that evidence which a witness is merely reporting not what he

himself saw or heard, not what has come under the immediate

observation of his own bodily senses, but what he had learnt

respecting the fact through the medium of a third person.

Hearsay, therefore, properly speaking is secondary evidence of

any oral statement. What was deposed to by P.W.5 regarding

demand and acceptance of bribe money of Rs.200/- by the

respondent prior to the date of trap was the information

conveyed to him by his brother-in-law would remain hearsay

unless the author of the information is examined in the case and

is subjected to cross-examination. In the latter contingency, the

objection of hearsay would disappear and the Court will have to

weigh the relative merits and demerits of the respective versions

deposed to by the concerned witnesses.

// 35 //

After carefully analysing the evidence of P.W.5, it is

found that he has made inconsistent statements at different

stages and therefore, in view of the ratio laid down in the case of

Suraj Mal (supra) by the Hon'ble Supreme Court, his evidence

becomes unreliable and unworthy of credence. Since the

prosecution adduced the evidence of P.W.5 only to prove the

demand aspect before the date of trap and such evidence is hit

by section 60 of the Evidence Act being hearsay in nature and

moreover it is full of inconsistent statements, I am of the humble

view that the prosecution has miserably failed to prove the

demand of bribe made by the respondent before the date of

trap.

13. Let me now discuss the evidence adduced by the

prosecution as to what happened on the date of trap in the Office

of Sub-Registrar, Satyabadi. P.W.4, the overhearing witness has

stated that he stayed at the door of the office and was watching

the proceeding and another clerk Prasanna Das asked the

respondent to return Rs.200/- to P.W.5 saying that he was not

interested in making payment and at this P.W.5 told that he had

come to make payment of the balance amount and then the

respondent asked him to pay the money and P.W.5 then took out

the money kept folded in the paper and handed over the same to

// 36 //

the respondent and the respondent counted the money and kept

under a paper on his table. In the cross-examination, P.W.4 has

stated that on his arrival at Vigilance Office, he reported to the

D.S.P., Vigilance and after signing the preparation report (Ext.4),

he left the Vigilance Office and did not do any other act. Such a

statement made in the cross-examination creates doubt about

the presence of P.W.4 in the Office of Sub-Registrar.

P.W.5 has stated that when he approached the

respondent in his office, two to four persons were there and the

respondent was talking with one or two persons and when he

told the respondent that his brother-in-law had sent the money

and asked him to give the sale deed, the respondent enquired

from him as to who he was and asked him to send his brother-

in-law and the respondent did not pay attention to him and

engaged in talking with two staff. P.W.5 has further stated that

seeing the vigilance staff and the witnesses approaching, he put

the money below the files on the table of the respondent. He

further stated that the respondent probably had not seen him

keeping the money on his table under the files or else he would

have forbade him. The Special Public Prosecutor had the freedom

and right to put such questions as it deemed necessary in re-

examination to elucidate certain answers from P.W.5 to explain

// 37 //

the matters which were brought in the cross-examination and

inconsistent with the examination in chief. The same having not

been done, the evidence has to be read as a whole and merely

because P.W.5 has stated something against the respondent in

the chief examination, this Court cannot ignore the materials,

which have been brought out in the cross-examination in favour

of the respondent and the same goes against the prosecution

case of demand and acceptance of bribe money by the

respondent from P.W.5.

Thus the evidence of P.W.4 and P.W.5 relating to the

demand and acceptance of bribe money on the date of trap is

quite contradictory to each other.

P.W.6 is another witness who accompanied the

vigilance staff to the Office of Sub-Registrar on the date of trap

and though in the chief-examination, he has stated that the

table of the respondent was searched and money in question

was recovered from below the file, but in the cross-examination,

he has stated that he had not seen the recovery of tainted

money and the tainted money was given to him by the D.S.P. He

has also stated that he had not seen when the respondent had

handled the tainted money.

// 38 //

In order to attract the culpability of section 7 of the

P.C. Act, the essential ingredients are (i) the person accepting

the gratification should be a public servant (ii) he should accept

the gratification for himself and the gratification should be as a

motive or reward for doing or forbearing to do any official act or

for showing or forbearing to show, in the exercise of his official

function, favour or disfavour to any person. So far as section

13(1)(d) of the P.C. Act is concerned, the prosecution must

establish that (i) the respondent as a public servant used corrupt

or illegal means or otherwise abused his position as such public

servant and (ii) he should have obtained a valuable thing or

pecuniary advantage for himself or for any other persons.

In the case of Kishore Kumar Swain -Vrs.- State

of Odisha (Vigilance) reported in (2018) 69 Orissa

Criminal Reports 925, it is held that whether all the ingredients

of the offences i.e. demand, acceptance and recovery of illegal

gratification have been satisfied or not, the Court must take into

consideration the facts and circumstances brought on the record

in its entirety and the standard of burden of proof on the accused

vis-à-vis the standard of burden of proof on the prosecution

would differ. It is only when this initial burden regarding demand

and acceptance of illegal gratification is successfully discharged

// 39 //

by the prosecution, then burden of proving the defence shifts

upon the accused. The proof of demand of illegal gratification is

the gravamen of the offences under sections 7 and 13(1)(d) of

the P.C. Act and in absence thereof, the charge would fail. Mere

acceptance of any amount allegedly by way of illegal gratification

or recovery thereof, dehors the proof of demand, ipso facto,

would not be sufficient to bring home the charge under these two

sections of the P.C. Act. (Ref:- State of Punjab -Vrs.- Madan

Mohan Lal Verma reported in A.I.R. 2013 S.C. 3368, State

of Maharashtra -Vrs.- Dnyaneshwar reported in (2009) 44

Orissa Criminal Reports 425, Punjabrao -Vrs.- State of

Maharashtra reported in A.I.R. 2002 S.C. 486, V. Sejappa

-Vrs.- State reported in A.I.R. 2016 S.C. 2045, Panalal

Damodar Rathi -Vrs.- State of Maharashtra reported in

A.I.R. 1979 S.C. 1191, Mukhitar Singh -Vrs.- State of

Punjab reported in (2016) 64 Orissa Criminal Reports

(S.C.) 1016).

14. In view of the foregoing discussions, I am of the

humble view that the finding and reasons recorded on the

charges and the observation made by the learned trial Court that

the prosecution has succeeded to bring home the charges

against the respondent under section 7 and section 13(2) read

// 40 //

with section 13(1)(d) of the P.C. Act is clearly erroneous. There

is no acceptable evidence regarding demand and acceptance of

bribe money by the respondent from P.W.5 and mere recovery of

tainted money from the table of the respondent is not sufficient

to prove such charges. Even though for the reasons assigned by

the learned trial Court in acquitting the respondent are not

acceptable, but the impugned judgment and order of acquittal is

otherwise sustainable.

Accordingly, the GCRLA being devoid of merits,

stands dismissed.

It appears that the respondent has been released on

bail by the learned trial Court as per the order dated 19.01.2017

of this Court. The respondent is discharged from the liability of

the bail bond. The personal bond and surety bonds stand

cancelled.

The trial Court records with a copy of this judgment

be sent down to the concerned Court forthwith for information.

.................................

S.K. Sahoo, J.

Orissa High Court, Cuttack The 12th October 2022/RKMishra