1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1350 2009 [Arising out of SLP (Crl.) No. 211 of 2006] [ENTITY] Appellant VERSUS [ENTITY] Respondent JUDGMENT
[ENTITY], J.
1. Leave granted.
2. The State is before us being aggrieved by and dissatisfied with a judgment and order dated 19.07.2005 passed by a learned Single Judge of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur whereby and whereunder a judgment of acquittal was recorded in favour of the respondent herein who was convicted by the Special Judge, Wardha in [CASE NUMBER] under [SECTION] of the [ACT] (for short "the Act").
3. Respondent was, at all material times, serving as a Head Constable in Police Station, Karanja in the District of Wardha. [ENTITY], hereinafter referred to as the complainant, was a resident of village Taroda in the Tehsil of Karanja (Ghadge). He had lodged a report against [ENTITY] and his servant [ENTITY] for allegedly allowing their cattle to graze orange plants. [ENTITY]'s mother, however, lodged a report against the complainant that he had assaulted her son. In his capacity as a Head Constable, the respondent visited the village for making an enquiry.
4. Respondent informed that having regard to the complaint made by the mother of [ENTITY], he and his three brothers were to be proceeded for commission of an offence under [SECTION] of the [ACT]. He allegedly demanded a sum of Rs. 2,000/- for releasing him on bail.
5. On or about 14.07.1995, [ENTITY], brother of the complainant and his servant had taken the cow of [ENTITY] to the cattle - pound as the cow had damaged the crops in the complainant's field. On 31.07.1995, the respondent is said to have again demanded a sum of Rs. 1500/- for releasing [ENTITY] and his servant on bail in the aforementioned matter. Allegedly, a sum of Rs. 100/- and thereafter a sum of Rs. 200/- was paid to him.
6. The complainant thereafter on the premise that he was unwilling to pay the balance sum of Rs. 1200/- to the respondent lodged an oral report before the Anti Corruption Bureau against the respondent on or about 8.08.1995. A raid was conducted but allegedly the same was not successful. On 21.08.1995, the complainant lodged additional report stating that the respondent told that he should come to Karanja on 22.08.1995 with remaining amount of Rs. 1200/-. The entire procedure was repeated again on 22.08.1995. Complainant and one panch witness [ENTITY] went to the police station. Respondent was not present at the police station. Then they went to his house. He is said to have again demanded the amount and asked them to come near the Veterinary hospital. Allegedly, nearabout the Veterinary Hospital, on demand of the amount of bribe by the respondent, the same was paid. He was apprehended by the raiding party. Upon obtaining sanction for the prosecution of the respondent, a case under [SECTION] and [SECTION] was initiated against him.
7. Respondent entered the plea of innocence. Charges were framed against him. [ENTITY], panch witness No. 1, died during pendency of the said proceeding. The other panch witness [ENTITY] although was not present when the respondent purported to have made a demand of the amount of gratification, deposed to the said effect. He was declared hostile and was permitted to be cross-examined by the prosecution. The complainant, however, examined himself as a prosecution witness and supported the prosecution case.
8. Respondent, on his part, examined a defence witness, [ENTITY] who was an autorickshaw driver. According to the said witness, the complainant and a person accompanying him stopped his autorickshaw and the former allegedly requested the respondent to see a buffalo which was brought near the hospital in an injured condition. Respondent got down from his autorickshaw. Complainant is said to have thrust the amount in question on the left hand of the accused whereafter the raid was conducted by the official of the Anti Corruption Bureau.
9. The learned Special Judge held the respondent guilty of commission of the said offence and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- in default whereof he was sentenced to undergo further rigorous imprisonment of two months.
10. Aggrieved by and dissatisfied with the said judgment of conviction and sentence, the respondent preferred an appeal before the High Court, which was marked as [CASE NUMBER]. Inter alia on a finding that the prosecution has failed to prove any demand on the part of the accused as also payment thereof and opining that the recovery of the purported amount of bribe was not sufficient to bring home the charge under [SECTION] of the Act reversed the said judgment of conviction and sentence recorded by the learned Special Judge and, thus, allowed the appeal of the respondent.
11. The State is, thus, before us.
12. Ms. [ENTITY], learned counsel appearing on behalf of the appellant, would contend that keeping in view the materials brought on record by the prosecution, the High Court committed a serious error in opining that all the three ingredients of commission of an offence under [SECTION] of the Act have not been proved. It was urged that having regard to the provisions of [SECTION] of the Act, the burden of proof was on the accused and he having failed to explain as to how the amount of Rs. 1200/- was found in his pocket, the High Court ought not to have recorded a judgment of acquittal in his favour.
13. The learned counsel furthermore would contend that the discrepancies in the depositions of the prosecution witness were not sufficient to record the judgment of acquittal.
14. Mr. [ENTITY], learned counsel appearing on behalf of the respondent, on the other hand, would contend that the sole-surviving panch witness PW-1 having been disbelieved and in fact having been declared hostile, no reliance could be placed on his evidence. It was pointed out that the prosecution had earlier made several raids and at least two other incidents have been brought on record, it is improbable that the respondent had demanded any amount by way of bribe or otherwise.
15. Before embarking on the rival contentions raised before us, it is our duty to remind ourselves that we are dealing with a judgment of acquittal and, thus, it is absolutely essential to keep in mind the well-settled principles of law that in the event two views are possible to be taken, this Court shall not interfere with a judgment of acquittal. There cannot be any doubt that in the event, having regard to the materials brought on record, the court comes to the conclusion on the basis thereof that only one view is possible, a judgment of acquittal may be interfered with. [See [PRECEDENT], [ENTITY] v. Rashid B. Mulani (2006) 1 SCC 407 and [PRECEDENT]]
16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in [SECTION] of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of [SECTION] of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.
17. Indisputably, the complainant took with him two panch witnesses. One of them [ENTITY] was a witness in respect of the alleged demand of illegal gratification on the part of the respondent. He having died during pendency of the matter before the learned Special Judge, no other independent witness was available to prove the prosecution case in that behalf. The second panch witness was not a witness of demand. Despite the said fact, the prosecution sought to prove the demand purported to have made by the respondent through him. It is of some significance to notice that although by the said process PW-1 did not support the accused, he was declared hostile and permission to cross-examine him was sought for by the prosecution.
18. Initially, an amount of Rs. 2000/- was demanded. A sum of Rs. 1800/- was said to have been paid against the aforementioned demand. Another criminal case was instituted on 14.07.1995. An amount of Rs. 1500/- was said to have been demanded on 31.07.1995. Only a very small part of the said amount had been paid, viz., Rs. 100/- and Rs. 200/- on two different occasions. Keeping in view the fact that the respondent enquired about the correctness or otherwise of the First Information Reports lodged by the complainant and the mother of said [ENTITY] after a long time, it is doubtful that the respondent had been coming to the village again and again. Even complaint was made only on 8.08.1995. Indisputably, at least two attempts have been made, one on that date and another later on. The entire procedure for making a raid was repeated on 22.08.1995. This itself casts a serious doubt about the prosecution case. The matter does not end here. Complainant with [ENTITY] went to the police station. Then, they went to their residence. If the respondent intended to take the amount, he would have accepted the same in his house itself and there was no reason to ask the complainant and the witness to meet him at a public place, i.e., near the Veterinary Hospital. Even the details of the said purported raid, viz., time of the complainant's visit to the police station, the residence of the respondent and Veterinary Hospital, have not been disclosed.
19. It is, therefore, highly doubtful that the version of the complainant was true. It is in the aforementioned backdrop only the evidence of DW-1 is to be considered. Even otherwise, in our opinion, the prosecution has failed to prove its case. It is, therefore, not a case where the High Court, as has been contended by Ms. [ENTITY], has failed to take into consideration the legal implication of the provisions of [SECTION] of the Act and/ or placed too much reliance on the minor inconsistencies in the statements of the prosecution witnesses.
20. Even in a case where the burden is on the accused, it is well-known, the prosecution must prove the foundational facts. [See [PRECEDENT] and Jayendra Vishnu Thakur v. [ENTITY] and Anr. 2009 (7) SCALE 757]
21. It is also a well-settled principle of law that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail. [See [PRECEDENT] and [PRECEDENT]]
22. For the reasons aforementioned, there is no merit in this appeal, which is dismissed accordingly.
J. [[ENTITY]] J. [[ENTITY]] New Delhi;
July 29, 2009