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Non-  Reportable  

                IN THE SUPREME COURT OF INDIA

  CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 14 OF 2016

(Arising out of SLP (Crl.) No.703 of 2015)

KRISHAN CHANDER   …APPELLANT Versus

STATE OF DELHI               …RESPONDENT J U D G M E N T  

V. GOPALA GOWDA, J.

Leave granted.

2. This  criminal  appeal  is  directed  against  the  impugned judgment and order dated 7.11.2014 passed by  

the High Court of Delhi at New Delhi in      Crl.  

Appeal No. 634 of 2008 wherein the High Court has  

dismissed  the  appeal  filed  by  the  appellant  and  

upheld the order of conviction and sentence passed  

against the appellant by the court of Special Judge,  

Delhi (for short the “trial court”) in CC No. 21 of  

2005. The trial court convicted the appellant vide  

its  judgment  dated  14.7.2008  for  the  offences

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punishable under Sections 7 and 13(1)(d) read with  

13(2) of the Prevention of Corruption Act, 1988 (for  

short “the PC Act”) and vide order dated 15.7.2008  

sentenced  him  to  undergo  rigorous  imprisonment  for  

two  years with  fine of  Rs.5,000/- for  the offence  

punishable  under  Section  7  of  the  PC  Act  and  in  

default  to  undergo  simple  imprisonment  for  two  

months.  For  the  offences  punishable  under  Section  

13(2)  of  the  PC  Act,  he  was  further  sentenced  to  

undergo rigorous imprisonment for two years with fine  

of  Rs.5,000/-  and  in  default  to  undergo  simple  

imprisonment  for  two  months.  Both  the  sentences  

imposed upon him for the above said offences were to  

run concurrently.

    3. Brief facts of the case are stated hereunder to  appreciate  the  rival  legal  contentions  urged  on  

behalf of the parties:-

4. The prosecution case before the trial court was  that  on  29.7.2004,  an  FIR  No.  662  of  2004  was  

registered  at  Police  Station,  Nangloi,  Delhi  under  

Sections 279 and 337 of Indian Penal Code (for short  

“IPC”) against one Krishan Kumar (PW-9), the brother

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of the complainant-Jai Bhagwan (PW-2). Krishan Kumar  

was  arrested  on  29.7.2004  in  connection  with  the  

alleged offences referred to in the above said FIR.

5. The complainant-Jai Bhagwan (PW-2) had approached  Assistant Sub-Inspector (ASI) Ranbir Singh (PW-11),  

the  Investigating  Officer  of  the  said  case  for  

release of Krishan Kumar on bail. The Investigating  

Officer is stated to have accepted the bail bond for  

release of Krishan Kumar and directed the appellant  

(a constable at the said Police Station) to release  

him on bail in connection with the alleged offences  

referred to supra.  

6. The appellant alleged to have demanded a bribe of  Rs.5000/-  from  the  complainant-Jai  Bhagwan  for  

releasing his brother Krishan Kumar on bail. It is  

alleged  that  under  duress,  complainant-Jai  Bhagwan  

(PW-2)  paid  Rs.4,000/-  as  bribe  to  the  appellant.  

Thereafter, Krishan Kumar (PW-9) was released on bail  

and the appellant asked the complainant-Jai Bhagwan  

to  pay  him  the  balance  amount  of  Rs.1,000/-  on  

30.7.2004 between 6.00 p.m. and 7.00 p.m. at Ditchau  

Kalan Bus Stand, Najafgarh.

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7. The complainant-Jai Bhagwan (PW-2) approached the  office of Anti Corruption Branch on 30.07.2004 and  

made  a  written  complaint  regarding  the  demand  of  

bribe  by the  appellant from  him. The  said written  

complaint was recorded by Sunder Dev     (PW-12) in  

presence of Anoop Kumar Verma (PW-6).

8. The  complainant-Jai  Bhagwan  took  with  him  two  Government Currency notes (for short the “GC notes”)  

in the denomination of Rs.500/- each and handed over  

the same to Inspector Sunder Dev (PW-12) who noted  

down  the  serial  numbers  of  the  said  GC  notes.  

Thereafter, phenolphthalein powder was applied to the  

said  GC  notes  and  recorded  in  the  pre-raid  

proceedings  and  its  effect  was  demonstrated.  The  

tainted GC notes were given to the complainant-Jai  

Bhagwan, who kept the same in the left pocket of his  

shirt.

9. As  per  the  instructions,  panch  witness-  Anoop  Kumar Verma (PW-6) was directed to remain close to  

complainant-Jai Bhagwan to overhear the conversation  

between  the  complainant-Jai  Bhagwan  and  the

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appellant. He was further instructed to give a signal  

to the raiding party by hurling his hand over his  

head when bribe amount had actually been given by the  

complainant-Jai Bhagwan.

10. On  30.07.2004,  at  around  4.30  p.m.,  the  complainant-Jai Bhagwan, panch witness- Anoop Kumar  

Verma,  Inspector  Sunder  Dev  (PW-12),  Sub-Inspector  

B.S. Yadav (PW-10) and Constable Rajiv Kumar (PW-5)  

along with other members of the raiding party left  

for Ditchau Kalan Bus Stand in a government vehicle  

and reached the spot at around 5.45 p.m. At around  

7.00  p.m.,  appellant  reached  the  spot  and  had  

conversation with complainant-Jai Bhagwan. Both the  

complainant and the appellant moved towards a water  

trolley,  had  water  and  again  continued  their  

conversation.  Panch  witness-Anoop  Kumar  Verma  

followed  them.  After  sometime,  the  complainant-Jai  

Bhagwan took out the tainted GC notes from the left  

pocket of his shirt and gave them to the appellant  

which he took with his right hand and kept the same  

in the left pocket of his shirt. Soon after the said  

transaction,  panch  witness-  Anoop  Kumar  Verma  gave

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the pre-determined signal to the raiding team upon  

which the team rushed to the spot.  

11. Anoop Kumar Verma informed the raiding team that  the  appellant  had  demanded  and  accepted  the  bribe  

money of Rs.1000/- from the complainant-Jai Bhagwan.  

Inspector Sunder Dev introduced himself as Inspector  

from  Anti  Corruption  Branch  to  the  appellant  upon  

which he immediately took out the tainted GC notes  

from the pocket of his shirt with his left hand and  

threw the same on the ground. The said GC notes were  

then picked up from the ground by panch witness-Anoop  

Kumar Verma on the instructions of Inspector-Sunder  

Dev.  The serial  numbers of  the recovered  GC notes  

were  matched  with  those  noted  in  the  pre-raid  

proceedings. The wash of right and left hand of the  

appellant as well as the wash of left pocket of his  

shirt  was  taken  in  colorless  solution  of  sodium  

carbonate  which  turned  pink.  The  solution  was  

transferred  into  clean  glass  bottles  which  were  

sealed  and  labeled.  Thereafter,  the  appellant  was  

arrested  and  FIR  No.  36  of  2004  was  registered  

against  him  for  the  offences  punishable  under

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Sections 7 and 13(1)(d) read with 13(2) of the PC  

Act.  

12. The  learned  Special  Judge  after  examining  the  evidence on record  convicted the appellant vide its  

judgment dated 14.7.2008 for the offences punishable  

under Sections 7 and 13(1)(d) read with Section 13(2)  

of  the  PC  Act  and  vide  order  dated  15.7.2008  

sentenced  him  to  undergo  rigorous  imprisonment  for  

two  years with  fine of  Rs.5,000/- for  the offence  

punishable  under  Section  7  of  the  PC  Act  and  in  

default  to  undergo  simple  imprisonment  for  two  

months.  For  the  offence  punishable  under  Section  

13(2)  of  the  PC  Act  he  was  further  sentenced  to  

undergo rigorous imprisonment for two years with fine  

of  Rs.5,000/-  and  in  default  to  undergo  simple  

imprisonment  for  two  months.  Both  the  sentences  

imposed upon him for the above said offences were to  

run concurrently.

13. Aggrieved by the decision of the learned Special  Judge, the appellant filed Crl. Appeal No.634 of 2008  

before the High Court of Delhi at New Delhi urging  

various grounds. The High Court vide its judgment and

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order  dated  07.11.2014  upheld  the  decision  of  the  

learned Special Judge. The correctness of the same is  

questioned in this appeal urging various grounds.

14.  Mr. Sidharth Luthra, the learned senior counsel  on behalf of the appellant contended that the High  

Court has failed to appreciate the fact that Krishan  

Kumar (PW-9) at the time of occurrence was already  

released  on  bail  in  connection  with  the  case  

registered in FIR No. 662 of 2004 by the appellant as  

per  the  directions  of  Ranbir  Singh,  ASI  (PW-11).  

Thus, the demand of bribe money of Rs.1000/- by the  

appellant from the complainant-Jai Bhagwan is highly  

improbable.

15. It was further contended by him that the demand  of illegal gratification by the accused is a sine qua  

non  for constitution of an offence under Sections 7  

and 13(1)(d) read with Section 13(2) of the PC Act. A  

mere production of the tainted money recovered from  

the  appellant  along  with  positive  result  of  

phenolphthalein  test,  sans  the  proof  of  demand  of

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bribe is not enough to establish the guilt of the  

charge  made  against  appellant.  In  support  of  the  

above legal submission, he placed reliance upon the  

judgments of this Court in the cases of B. Jayaraj v.  

State  of  Andhra  Pradesh1, A.  Subair  v.  State  of  

Kerala2 and  State  of  Kerala  &  Anr.  v.  C.P.  Rao3,  

wherein this Court, after interpreting Sections 7 and  

13(1)(d) of the PC Act, has held that the demand of  

bribe money made by the accused in a corruption case  

is a  sine qua non to punish him for the above said  

offences. The learned senior counsel has also placed  

reliance upon the three Judge Bench decision of this  

Court in the case of  P. Satyanarayana Murthy v. The  

Dist. Inspector of Police, State of Andhra Pradesh &  

Anr.4, in which I was one of the companion Judges,  

wherein this Court, after referring to the aforesaid  

two  Judge  Bench  judgments  on  the  question  of  

necessity of demand of bribe money by the accused,  

has reiterated the view stated supra.  

16. It was further contended by him that the High  Court  has  failed  to  appreciate  the  fact  that  the  

1  (2014) 13 SCC 55 2  (2009) 6 SCC 587 3  (2011) 6 SCC 450 4   (2015) 10 SCC 152

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complainant-Jai  Bhagwan  turned  hostile  during  his  

examination  before  the  trial  court  and  did  not  

support  the  prosecution  case  that  the  demand  of  

Rs.1000/- as illegal gratification was made by the  

appellant from him for release of Krishna Kumar (PW-

2) on bail.  

17. It was further contended by the learned senior  counsel  that  the  High  Court  has  failed  to  re-

appreciate the evidence on record that Panch witness-  

Anoop  Kumar Verma  was directed  by the  official of  

Anti  Corruption  Branch  to  remain  close  to  the  

complainant-Jai  Bhagwan  in  order  to  hear  the  

conversation  and  see  the  transaction  between  the  

appellant and the complainant-Jai Bhagwan. He further  

submitted that the learned Special Judge as well as  

the High Court have arrived at an erroneous finding  

without considering the fact that the appellant after  

reaching  the  spot  walked  with  the  complainant-Jai  

Bhagwan  for about  15 to  20 steps  while conversing  

with each other. Thereafter, both moved towards water  

trolley  and  after  taking  water  proceeded  ahead.

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Around that time the complainant-Jai Bhagwan took out  

the tainted GC notes from his pocket and gave it to  

the appellant. From the said evidence, it is clear  

that panch witness- Anoop Kumar Verma did not hear  

the  conversation  between  the  appellant  and  the  

complainant-Jai  Bhagwan.  Therefore,  there  was  no  

occasion to reach the conclusion that the appellant  

demanded any bribe from the complainant-Jai Bhagwan.  

18. He further contended that Ranbir Singh, ASI who  was Investigating Officer in the case in which the  

arrest of Krishan Kumar was made, accepted his bail  

bond and directed the appellant to release him. It is  

an admitted fact that Krishan Kumar was released on  

bail in the presence of and as per the directions of  

Ranbir Singh, ASI. Therefore, there was no occasion  

for the appellant to demand any bribe money from the  

complainant-Jai Bhagwan.

 19. It was further contended that the High Court has  failed to appreciate the fact that the alleged demand  

and the acceptance of amount of Rs. 1000/- is not  

corroborated by any independent witness despite the  

fact that the transaction alleged to have taken in a

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public place.

20. On the other hand, Mr. P.S. Patwalia, the learned  Additional Solicitor General (ASG), on behalf of the  

respondent-State  sought  to  justify  the  impugned  

judgment and order passed by the High Court which is  

on proper appreciation of evidence on record and it  

is well reasoned and therefore not vitiated in law.  

Hence, he would submit that no interference with the  

same is required by this Court in exercise of its  

appellate jurisdiction.

21. He has submitted that the High Court has rightly  re-appreciated  the  evidence  of  the  complainant-Jai  

Bhagwan  and  other  prosecution  witnesses  and  

concurred with the findings recorded on the charges.  Further it was submitted by him that the trial court  

while appreciating the evidence of the complainant-

Jai Bhagwan relied upon the decision of this Court in  

the  case  of  Sat  Paul  v. Delhi  Administration5,  

paragraphs 41 and 51 of which decision in recording  

the finding on the charges against the appellant, are  

extracted hereunder:

5  AIR 1976 SC 294

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“41. The fallacy underlying this view stems  from the assumption that the only purpose of  cross-examination  of  a  witness  is  to  discredit  him;  it  ignores  the  hard  truth  that  another  equally  important  object  of  cross-examination is to elicit admissions of  facts which would help build the case of the  cross-examiner. When a party with the leave  of the court, confronts his witness with his  previous inconsistent statement, he does so  in the hope that the witness might revert to  what  he  had  stated  previously.  If  the  departure from the prior statement is not  deliberate but is due to faulty memory or a  like cause, there is every possibility of  the  witness  veering  round  to  his  former  statement.  Thus,  showing  faultness  of  the  memory in the case of such a witness would  be  another  object  of  cross-examining  and  contradicting  him  by  a  party  calling  the  witness. In short, the rule prohibiting a  party  to  put  questions  in  the  manner  of  cross-examination or in a leading form to  his own witness is relaxed not because the  witness has already forfeited all right to  credit  but  because  from  his  antipathetic  altitude or otherwise, the court feels that  for doing justice, his evidence will be more  fully  given,  the  truth  more  effectively  extricated  and  his  credit  more  adequately  tested by questions put in a more pointed,  penetrating and searching way.     xx                                 xx               xx     51. From the above conspectus, it emerges  clear 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

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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 testimony  of  the  witness  is  impugned,  and  in  the  process,  the  witness  stands  squarely  and  totally discredited, the Judge should, as a  matter of prudence, discard his evidence in  toto.”

22. It was further submitted that the trial court by  placing  reliance  upon  the  Sat  Paul’s  case  (supra)  

found  a  part  of  the  complainant-Jai  Bhagwan’s  

testimony reliable and held that the demand of bribe  

money  by  the  appellant  from  the  complainant-Jai  

Bhagwan to release his brother Krishan Kumar (PW-9)  

can be said to be proved. He has placed reliance on  

the  following  finding  and  reasons  recorded  by  the  

trial  court,  which  relevant  portion  from  para  16  

reads thus:

“16…It  is  true  that  complainant  has  not  testified entirely in terms of his statement  recorded u/s 161 Cr.P.C and he was declared  hostile  and  was  cross  examined  with  the  leave of the court. But simply because he  did  not  testify  strictly  as  per  the  prosecution  case  does  not  mean  that  his  statement  is  altogether  effaced  from  the

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record.”

Therefore, he would submit that the decision of the  

trial  court  on  the  charges  framed  against  the  

appellant  is  based  on  proper  evaluation  of  the  

evidence on record which has been rightly accepted by  

the High Court. Therefore, the same cannot be termed  

as erroneous in law and need not be interfered with  

by  this  Court  in  exercise  of  its  appellate  

jurisdiction.

23. It was further contended by him that though the  complainant-Jai Bhagwan turned hostile witness and he  

has deposed before the trial court by stating that he  

had inserted the tainted GC notes in the left pocket  

of appellant’s shirt. The trial court has held that  

evidence of Anoop Kumar Verma and inspector-Sunder  

Dev have supported the case of the prosecution who  

have demolished the version given by the complainant-

Jai Bhagwan (PW-2) in his examination-in-chief.

24.  He has further submitted that as far as proof of  demand of Rs.1000/- as illegal gratification made by  

the  appellant  is  concerned,  the  trial  court  has  

rightly recorded the finding of fact holding that the

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appellant was caught red-handed accepting the bribe  

money at the Ditchau Kalan Bus Stand at Najafgarh and  

this evidence was sufficient enough to show that the  

complainant-Jai  Bhagwan  (PW-2)  was  asked  by  the  

appellant  to  bring  the  said  amount  as  illegal  

gratification for having released Krishan Kumar (PW-

9) on bail.

25.  We have carefully heard Mr. Sidhartha Luthra,  the learned senior counsel on behalf of appellant and  

Mr. P.S. Patwalia, the learned Additional Solicitor  

General on behalf of respondent-State. On the basis  

of factual and legal aspects of the case and evidence  

on record produced in the case, it is clear that the  

High Court has recorded the concurrent findings on  

the  charges  framed  against  the  Appellant  in  the  

impugned judgment and order. It has also failed to  

re-appreciate  the  evidence  on  record  properly  and  

consider the law on the relevant aspect of the case.  

Therefore, the said findings are not only erroneous  

in law but also suffer from error in law. Hence, the  

same is liable to be set aside.

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26.  We are of the view that as the complainant-Jai  Bhagwan in his examination-in-chief before the trial  

court  has  categorically  stated  that  it  was  Ranbir  

Singh, ASI (PW-11) who demanded Rs.5000/- for release  

of his brother, Krishan Kumar (PW-9) in connection  

with  the  offences  registered  against  him  in  FIR  

No.662 of 2004, the trial court has wrongly accepted  

a part of testimony of the complainant-Jai Bhagwan  

while  recording  such  findings  on  the  charges  to  

convict the appellant when there is nothing on record  

to show that it is the appellant who had demanded  

bribe money from the complainant-Jai Bhagwan. In his  

examination-in-chief  before  the  trial  court,  he  

categorically stated thus :-

“……One  Police  Officer  who  was  in  civil  uniform, who was the IO of that case, met  me in the Police station told me that I  would have to spend Rs.5000/- for the bail  of  my  brother……On  the  directions  of  that  IO,  I  had  given  Rs.4000/-  to  accused  Krishan on account of duress. That IO asked  me that he would send accused Krishan to  collect  balance  amount  of  Rs.1000/-  to  Najafgarh.”  

During the trial, the said witness did not support  

the prosecution version and therefore he was declared

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as  hostile  witness  and  thereafter,  he  was  cross-

examined by Mr. Alok Saxena, the learned Additional  

Public Prosecutor to the following effect:

“I did not mention in my complaint that one  ASI  Ranbir  Singh  asked  Constable  Krishan  Kumar to release my brother and he himself  went for some other work and I requested  Constable  Krishan  Kumar  to  release  my  brother and he demanded  Rs.5000/- from me  for releasing my brother (confronted with  portion A to A of his complaint Ex. PW2/A…… It  is  incorrect  to  suggest  that  accused  Krishan Kumar had demanded Rs.5000/- from  me and today I am giving a false exception  that one IO had demanded Rs.5000/- from me  in  order  to  save  the  accused……I  did  not  tell  to  the  police  that  after  receiving  signal  from  the  panch  witnesses,  Raid  Officer  came  near  me  and  challenged  the  accused  that  he  had  taken  Rs.1000/-  as  bribe  from  me  on  which  accused  became  perplexed and he took out those treated GC  notes from his pocket and threw the same on  the ground (confronted with portion B to B  of his statement-ExPW-2/H recorded).

He has further stated that:

“It  is  wrong  to  suggest  that  accused  Krishan had accepted bribe from me in his  right hand and kept the same in his pocket  and  after  seeing  raiding  party.  It  is  further wrong to suggest that I am deposing  falsely.”

The High Court has also erroneously appreciated the

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same and held thus:

“23.  …As  regards  the  demand  of  bribe  of  Rs.1000/-  its  conscious  acceptance  by  the  appellant,  as  already  noticed,  has  been  proved by PW-6 and fully corroborated by PW- 12.”  

27. Adverting to the evidence of Ranbir Singh, ASI  (PW-11) who is the Investigation Officer in the above  

case  registered  against  Krishan  Kumar;  in  his  

examination-in-chief  before  the  trial  court,  he  

stated as under :-

“……After  getting  Sri  Kishan  medically  examined, the accused brought  him to PS  Nangloi.  No  surety  of  Sri  Kishan  was  present  in  the  PS  at  that  time.   After  about one hour one Jai Bhagwan brother of  Sri  Kishan  came  to  P.S.  Nangloi  and  presented the bail bond of his brother Sri  Krishan. I accepted the bail bond of Sri  Kishan at 10.00 pm and gave instruction to  the  accused  to  release  Sri  Kishan.  I  reported back at P.S. Nangloi at 11.55 pm  and made the entry vide DD NO. 29/A dated  29.7.2004. I also recorded about the arrest  and release of Sri Kishan in this very DD,  although I accepted the surety bond of Sri  Kishan in this very DD, although I accepted  the surety bond of Sri Kishan at 10.00 PM  on 29.7.2004.”

From  the  aforesaid  admitted  facts  stated  in  his  

statement of evidence, it is very clear that it was  

Ranbir  Singh,  ASI,  who  directed  the  appellant  to  

release Krishan Kumar. Therefore, at the time of his

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releasing  on  bail,  there  was  no  occasion  for  the  

appellant to demand bribe money from the complainant-

Jai Bhagwan as he was already released on bail in the  

above criminal case by Ranbir Singh, ASI, (PW-11).

28. We are unable to agree with the above contentions  urged  by  the  learned  ASG  that  the  complainant-Jai  

Bhagwan turned hostile witness in the case before the  

trial court, however, the statement of evidence of  

Anoop  Kumar  Verma  (PW-6)  and  inspector-Sunder  Dev  

(PW-12)  was sufficient  to support  the case  of the  

prosecution with regard to acceptance of bribe amount  

by the appellant from Jai Bhagwan (PW-2). This Court  

is of the view that whenever a prosecution witness  

turns  hostile  his  testimony  cannot  be  discarded  

altogether. In this regard, reliance is placed by the  

ASG on the decision of this court in the case of  

Rabindra Kumar Dey v. State of Orissa6. The relevant  para 12 of the aforesaid case reads thus:

      “12. It is also clearly well settled that the  mere fact that a witness is declared hostile  by  the  party  calling  him  and  allowed  to  be  cross-examined does not make him an unreliable  witness  so  as  to  exclude  his  evidence  from  consideration altogether. In  Bhagwan Singh v.  

6  (1976) 4 SCC 233

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State  of  Haryana Bhagwati,  J.,  speaking  for  this Court observed as follows:

“The prosecution could have even avoided re- questing for permission to cross-examine the  witness under Section 154 of the Evidence Act.  But the fact that the court gave permission to  the prosecutor to cross-examine his own wit- ness, thus characterising him as, what is de- scribed as a hostile witness, does not com- pletely efface his evidence. The evidence re- mains admissible in the trial and there is no  legal bar to base a conviction upon his testi- mony  if  corroborated  by  other  reliable  evi- dence.”

                         (emphasis supplied)

However, in the instant case, from the material on  

record, it is amply clear that the complainant-Jai  

Bhagwan  turned  hostile  on  two  important  aspects  

namely,  demand  and  acceptance  of  bribe  by  the  

appellant which is sine qua non for constituting the  

alleged offence under Sections 7 and 13(1)(d) read  

with 13(2) of the PC Act convicting the appellant and  

sentencing him for the period and fine as mentioned  

above.  

29. As far as the evidence of Panch witness- Anoop  Kumar Verma (PW-6) is concerned, in his examination-

in-chief, he stated thus:

“…Thereafter,  the  complainant  and  the  accused walked for 15-20 steps and had some

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talk  with  the  complainant  and  the  complainant took out those GC notes from his  pocket and gave in the right hand of accused  which  he  kept  in  the  left  pocket  of  his  shirt…”

Anoop Kumar Verma (PW-6) in his examination-in-chief  

has  not deposed  as to  the exact  conversation that  

took place between the appellant and the complainant-

Jai Bhagwan at the time when he had approached him to  

give bribe money. He has simply mentioned about “some  

talk” had taken place between them but has failed to  

bring to light the factum of demand of bribe money by  

the appellant from the complainant-Jai Bhagwan. Thus,  

it  is amply  clear that  panch witness-  Anoop Kumar  

Verma  did  not  hear  the  conversation  between  the  

appellant and the complainant-Jai Bhagwan. Therefore,  

there was no occasion for both the courts below to  

reach the conclusion that the appellant demanded any  

bribe from the complainant-Jai Bhagwan.

30. The  Investigation  Officer  (PW-10)  in  his  evidence, has not at all spoken of the contents of  

the statement of the complainant-Jai Bhagwan (PW-2),  

recorded  by  him  under  Section  161  of  the  Cr.P.C.  

Further, PW-2 in the light of the answers elicited

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from  him  in  the  cross-examination  by  Public  

Prosecutor,  with  regard  to  the  contents  of  161  

statement which relevant portions are marked in his  

cross-examination and the said statements were denied  

by  him, the  prosecution was  required to  prove the  

said statements of the PW-2 through the Investigating  

Officer to show the fact that PW-2 Jai Bhagwan in his  

evidence  has  given  contrary  statements  to  the  

Investigation  Officer  at  the  time  of  investigation  

and, therefore, his evidence in  examination-in-chief  

has no evidentiary value. The same could have been  

used  by  the  prosecution  after  it  had  strictly  

complied with Section 145 of the Indian Evidence Act,  

1872. Therefore, the I.O. should have spoken to the  

above statements of PW2 in his evidence to prove that  

he  has  contradicted  in  his  earlier  Section  161  

statements  in  his  evidence  and,  therefore,  his  

evidence cannot be discarded to prove the prosecution  

case.  

31. It becomes amply clear from the perusal of the  evidence of PW-10, I.O. in the case that the same has  

not  been  done  by  the  prosecution.  Thus,  the

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statements of PW-2 marked from Section 161 of Cr.P.C.  

in his cross-examination cannot be said to be proved  

in the case to place reliance upon his evidence to  

record the findings on the charge. The position of  

law in this regard is well settled by this Court in  

the case of V.K. Mishra v. State of Uttarakhand7. The  

relevant paras are extracted hereinbelow:

“16. Section 162 CrPC bars use of statement  of witnesses recorded by the police except  for the limited purpose of contradiction of  such  witnesses  as  indicated  there.  The  statement  made  by  a  witness  before  the  police under Section 161(1) CrPC can be used  only for the purpose of contradicting such  witness on what he has stated at the trial  as  laid  down  in  the  proviso  to  Section  162(1)  CrPC.  The  statements  under  Section  161 CrPC recorded during the investigation  are not substantive pieces of evidence but  can  be  used  primarily  for  the  limited  purpose: (i) of contradicting such witness  by  an  accused  under  Section  145  of  the  Evidence Act; (ii) the contradiction of such  witness also by the prosecution but with the  leave  of  the  Court;  and  (iii)  the  re- examination of the witness if necessary.

17. The court cannot suo motu make use of  statements  to  police  not  proved  and  ask  questions with reference to them which are  inconsistent  with  the  testimony  of  the  witness in the court. The words in Section  162 CrPC “if duly proved” clearly show that  the  record  of  the  statement  of  witnesses  cannot be admitted in evidence straightaway  nor can be looked into but they must be duly  proved for the purpose of contradiction by  

7   (2015) 9 SCC 588

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eliciting admission from the witness during  cross-examination and also during the cross- examination  of  the  investigating  officer.  The  statement  before  the  investigating  officer can be used for contradiction but  only  after  strict  compliance  with  Section  145 of the Evidence Act that is by drawing  attention  to  the  parts  intended  for  contradiction.

18. Section 145 of the Evidence Act reads as  under:

‘145. Cross-examination  as  to  previous  statements  in  writing.—A  witness may be cross-examined as to  previous  statements  made  by  him  in  writing or reduced into writing, and  relevant  to  matters  in  question,  without such writing being shown to  him, or being proved; but, if it is  intended  to  contradict  him  by  the  writing,  his  attention  must,  before  the writing can be proved, be called  to those parts of it which are to be  used for the purpose of contradicting  him.’

19. Under Section 145 of the Evidence Act  when  it  is  intended  to  contradict  the  witness  by  his  previous  statement  reduced  into writing, the attention of such witness  must be called to those parts of it which  are  to  be  used  for  the  purpose  of  contradicting him, before the writing can be  used. While recording the deposition of a  witness, it becomes the duty of the trial  court to ensure that the part of the police  statement  with  which  it  is  intended  to  contradict  the  witness  is  brought  to  the  notice  of  the  witness  in  his  cross- examination.  The  attention  of  witness  is  drawn to that part and this must reflect in  his cross-examination by reproducing it. If

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the  witness  admits  the  part  intended  to  contradict him, it stands proved and there  is no need to further proof of contradiction  and it will be read while appreciating the  evidence. If he denies having made that part  of  the  statement,  his  attention  must  be  drawn  to  that  statement  and  must  be  mentioned in the deposition. By this process  the  contradiction  is  merely  brought  on  record,  but  it  is  yet  to  be  proved.  Thereafter  when  investigating  officer  is  examined in the court, his attention should  be  drawn  to  the  passage  marked  for  the  purpose of contradiction, it will then be  proved  in  the  deposition  of  the  investigating officer who again by referring  to the police statement will depose about  the witness having made that statement. The  process  again  involves  referring  to  the  police statement and culling out that part  with which the maker of the statement was  intended to be contradicted. If the witness  was  not  confronted  with  that  part  of  the  statement with which the defence wanted to  contradict him, then the court cannot suo  motu make use of statements to police not  proved in compliance with Section 145 of the  Evidence Act that is, by drawing attention  to the parts intended for contradiction.”

                  (emphasis laid by this Court)

Thus,  the  contradiction  of  evidence  of  the  

complainant-Jai  Bhagwan  (PW-2)  does  not  prove  the  

factum of demand of bribe by the appellant from the  

complainant-Jai  Bhagwan  as  the  statement  recorded  

under Section 161 of Cr.P.C. put to him in his cross-

examination was not proved by B.S. Yadav (PW-10) by  

speaking  to  those  statements  in  his  evidence  and

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therefore, the evidence of PW-2 is not contradicted  

and proved his Section 161 statement in the case.

32. Further, the appellant in his examination under  Section 313 of Code of Criminal Procedure, 1973  has,  

inter alia, stated thus:

“Q 4: it is in evidence against you that on  28.07.2004 you demanded Rs. 5000/- as bribe  from  complainant  Jai  Bhagwan  and  you  accepted Rs. 4000/- as bribe from him and  asked the complainant to bring Rs. 1000/- on  30.07.2004  near  Dichau  Kalan  bus  stand,  Najafgarh. What you have to say?

Ans. It is incorrect.

     XXX        XXX          XXX

Q 14: It is evidence against you that at  about 7:00 p.m. you came and you met with  complainant  and  moved  towards  one  water  rairi  and  you  demanded  and  accepted  Rs.  1000/- as bribe from the complainant in the  presence of panch witness with your right  hand and kept the same in left pocket of  your shirt. What you have to say?

Ans. It is incorrect.

Q 15: It is in further evidence against you  that in the meantime panch witness gave pre- determined signal and thereafter the members  of  raiding  party  came  and  you  were  apprehended  and  panch  witness  told  the  raiding officer that you had demanded and  accepted the bribe of Rs. 1000/- from the  complainant (PW-2) with your right hand and  kept the same in your left pocket of your  shirt. What you have to say?

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Ans. It is incorrect.”

33. After a careful reading of the evidence of the  complainant-Jai  Bhagwan  (PW-2),  statements  made  by  

the appellant in his examination under Section 313 of  

Cr.P.C. as well as the evidence of Anoop Kumar Verma  

(PW-6) and inspector-Sunder Dev (PW-12), it is clear  

that  there  was  no  demand  of  bribe  money  by  the  

appellant from the complainant-Jai Bhagwan.

34. It  is  well  settled  position  of  law  that  the  demand for the bribe money is sine qua non to convict  

the  accused  for  the  offences  punishable  under  

Sections 7 and 13(1)(d) read with Section 13(2) of  

the PC Act. The same legal principle has been held by  

this  Court  in  the  case  of  B.  Jayaraj  (supra), A.  

Subair  (supra)  and P.  Satyanarayana  Murthy  (supra)  

upon which reliance is rightly placed by the learned  

senior  counsel  on  behalf  of  the  appellant.  The  

relevant  paragraph  7  from  B.  Jayaraj case  (supra)  

reads thus:

“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

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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 v. State of A.P. and  C.M. Girish Babu v. CBI.”

                         (emphasis supplied)

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

was held by this Court as under:

“21. In State of Kerala and another vs. C.P.  Rao,  this  Court,  reiterating  its  earlier  dictum,  vis-à-vis  the  same  offences,  held  that mere recovery by itself, would not prove  the charge against the accused and in absence  of any evidence to prove payment of bribe or  to  show  that  the  accused  had  voluntarily  accepted the money knowing it to be bribe,  conviction cannot be sustained.   22. In a recent enunciation by this Court to  discern  the  imperative  pre-requisites  of  Sections 7 and 13 of the Act, it has been  underlined  in  B.  Jayaraj  in  unequivocal  terms, that mere possession and recovery of  currency notes from an accused without proof  of  demand  would  not  establish  an  offence  under Sections 7 as well as 13(1)(d)(i)&(ii)  of the Act. It has been propounded that 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, thus, has been  held to be an indispensable essentiality and  of  permeating  mandate  for  an  offence  under  Sections 7 and 13 of the Act. Qua Section 20  of the Act, which permits a presumption as

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envisaged  therein,  it  has  been  held  that  while  it  is  extendable  only  to  an  offence  under  Section  7  and  not  to  those  under  Section 13(1)(d) (i)&(ii) of the Act, it is  contingent as well on the proof of acceptance  of  illegal  gratification  for  doing  or  forbearing to do any official act. Such proof  of  acceptance  of  illegal  gratification,  it  was  emphasized,  could  follow  only  if  there  was  proof  of  demand.  Axiomatically,  it  was  held that in absence of proof of demand, such  legal presumption under Section 20 of the Act  would also not arise.   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  therefore,  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 Sections 7 or 13  of the Act would not entail his conviction  thereunder.”                         (emphasis supplied)

35. Further, in the case of Satvir Singh v. State of  Delhi8, this Court has held thus:

8   (2014) 13 SCC 143

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“34. This Court, in K.S. Panduranga case has  held that the demand and acceptance of the  amount  of  illegal  gratification  by  the  accused  is  a  condition  precedent  to  constitute  an  offence,  the  relevant  paragraph in this regard from the abovesaid  decision  is  extracted  hereunder:  (SCC  pp.  740-41, para 39)

“39. Keeping in view that the demand and  acceptance  of  the  amount  as  illegal  gratification  is  a  condition  precedent  for  constituting  an  offence  under  the  Act, it is to be noted that there is a  statutory presumption under Section 20 of  the  Act  which  can  be  dislodged  by  the  accused  by  bringing  on  record  some  evidence,  either  direct  or  circumstantial,  that  money  was  accepted  other than for the motive or the reward  as stipulated under Section 7 of the Act.  When  some  explanation  is  offered,  the  court  is  obliged  to  consider  the  explanation under Section 20 of the Act  and the consideration of the explanation  has  to  be  on  the  touchstone  of  preponderance of probability. It is not  to be proven beyond all reasonable doubt.  In the case at hand, we are disposed to  think that the explanation offered by the  accused does not deserve any acceptance  and,  accordingly,  we  find  that  the  finding  recorded  on  that  score  by  the  learned  trial  Judge  and  the  stamp  of  approval given to the same by the High  Court cannot be faulted.”

                                           (emphasis supplied)

35. The  learned  Senior  Counsel  for  the  appellant has also placed reliance upon the  case  of  Banarsi  Dass referred  to  supra  wherein it was held that: (SCC pp. 456-57,  para 24)

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“24. In M.K. Harshan v. State of Kerala  this  Court  in  somewhat  similar  circumstances, where the tainted money  was kept in the drawer of the accused  who denied the same and said that it  was  put  in  the  drawer  without  his  knowledge, held as under: (SCC pp. 723- 24, para 8)

‘8.  …  It  is  in  this  context  the  courts  have  cautioned  that  as  a  rule  of  prudence,  some  corroboration is necessary.  In all  such type of cases of bribery, two  aspects  are  important.  Firstly,  there  must  be  a  demand  and  secondly, there must be acceptance  in the sense that the accused has  obtained the illegal gratification.  Mere  demand  by  itself  is  not  sufficient  to  establish  the  offence.  Therefore,  the  other  aspect, namely, acceptance is very  important and when the accused has  come forward with a plea that the  currency  notes  were  put  in  the  drawer without his knowledge, then  there must be clinching evidence to  show  that  it  was  with  the  tacit  approval  of  the  accused  that  the  money had been put in the drawer as  an illegal gratification.’…”               (emphasis supplied)

36. In view of the aforesaid reasons, the approach of  both the trial court and the High Court in the case  

is erroneous as both the courts have relied upon the  

evidence of the prosecution on the aspect of demand  

of  illegal  gratification  from  the  complainant-Jai

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Bhagwan (PW-2) by the appellant though there is no  

substantive evidence in this regard and the appellant  

was  erroneously  convicted  for  the  charges  framed  

against him. The prosecution has failed to prove the  

factum of demand of bribe money made by the appellant  

from the complainant-Jai Bhagwan (PW-2), which is the  

sine  qua  non for  convicting  him  for  the  offences  

punishable under Sections 7 and 13(1)(d) read with  

Section  13(2)  of  the  PC  Act.  Thus,  the  impugned  

judgment  and  order  of  the  High  Court  is  not  only  

erroneous  but  also  suffers  from  error  in  law  and  

therefore, liable to be set aside.

37. For  the  reasons  stated  supra,  the  impugned  judgment and order of the High Court as well as the  

trial court are set aside. The appeal is allowed. The  

Jail  Superintendent  is  directed  to  release  the  

appellant  forthwith  from  the  Jail  if  he  is  not  

required  in  connection  with  any  other  case.  The  

Registry is directed to communicate the above portion  

of the order to the concerned Jail Superintendent to  

comply with the directions issued to him.

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                      ……………………………………………………CJI.                        [T.S. THAKUR]

                                                   …………………………………………………………J.                                 [V. GOPALA GOWDA]

New Delhi, January 6, 2016