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       REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  870 OF 2012

Mukut Bihari & Anr. …Appellants

Versus

State of Rajasthan                      …Respondent

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. This  appeal  has  been  preferred  against  the  judgment  and  

order dated 12.10.2011 passed by the High Court of Judicature at  

Rajasthan (Jaipur Bench) in S.B. Criminal Appeal No.726 of 2001,  

by which it has affirmed the judgment and order of the trial Court  

dated 7.9.2001 passed by the Special Judge (ACD Cases), Jaipur in  

Regular Special Criminal Case No.26 of 1995 (State of Rajasthan v.  

Mukut  Bihari  etc.)  whereby  the  appellant  Mukut  Bihari  stood  

convicted for the offences punishable under Sections 7 and 13(1)(d)  

read  with  Section  13(2)  of  Prevention  of  Corruption  Act,  1988

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(hereinafter called the “Act 1988”) and under Section 120B of Indian  

Penal Code, 1860 (hereinafter called ‘IPC’) and has been awarded  

the punishment of rigorous imprisonment for a period of 2 years for  

each count; whereas appellant Kalyan Mal has been convicted for  

the offences  punishable under Section 13(1)(d) read with Section  

13(2) of the Act 1988  and under Section 120B IPC and he has also  

been awarded the punishment of rigorous imprisonment for a period  

of 2 years on each count.

2. Facts and circumstances giving rise to this case are that:

A. Rafiq  (PW.1)  filed  a  complaint  on  16.11.1994  before  the  

Anti-Corruption Department (hereinafter called “ACD”), Tonk that  

his father Deen Mohd. (PW.8) underwent the treatment in   Sahadat  

Hospital, Tonk for urinary infection from 24.10.1994 to 12.11.1994.  

He stood discharged on 12.11.1994, however he was not issued the  

discharge  ticket  and  for  which  Mukut  Bihari-accused  demanded  

Rs.100/- as bribe for issuance of the same.  The said demand was  

made on 14.11.1994 when the complainant (PW.1) offered Rs.75/-  

and 2 Kilogram of Ladoo.

B. In view of the aforesaid complaint, a trap was arranged and  

as per plan, the complainant met Mukut Bihari, appellant in the staff  

room of the surgical ward of the hospital and had conversation with  

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him.  Both of them went to the store room wherein the complainant  

handed over Rs.100/-  to Kalyan Mal,  appellant  at  the instance of  

Mukut Bihari, appellant.  The trap party arrested both the appellants  

immediately  and  the  case  was  registered  against  them.   After  

completing the investigation, charge sheet was filed against both of  

them.  During the course of trial, a large number of witnesses were  

examined and on conclusion of the trial, the court found them guilty  

and  imposed  the  punishment  as  referred  to  hereinabove  vide  

judgment and order dated 7.9.2001.

C. Aggrieved, the appellants preferred Criminal Appeal No.726  

of 2001 before the Rajasthan High Court which has been dismissed  

vide impugned judgment and order dated 12.10.2011.   

            Hence, this appeal.

3. Ms.  Shobha,  learned counsel  appearing for  the appellants,  

has submitted that for constituting an offence under the Act 1988,  

the  prosecution  has  to  prove  the  demand  of  illegal  gratification.  

Recovery of tainted money or mere acceptance thereof is not enough  

to  fasten  the  criminal  liability  as  the  money  could  be  offered  

voluntarily and the accused may furnish a satisfactory explanation  

for receipt of the money.  The trap case should be supported by an  

independent  eye-witness.   The deposition of  an interested witness  

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requires corroboration.  The conversation between the accused and  

the  complainant  at  the  time of  demand and accepting  the money  

must  be  heard/recorded  by  the  Panch  witness.   If  two views  are  

possible, then the one in favour of the accused should prevail.  In the  

instant case then the prosecution failed to prove the foundational fact  

beyond  reasonable  doubt.   Therefore,  the  appeal  deserves  to  be  

allowed.

4. On the contrary, Shri Kunal Verma, learned counsel for the  

State of Rajasthan, has vehemently opposed the appeal contending  

that acceptance of tainted money is an ample proof for conviction of  

the offences punishable under the Act 1988.  It is not necessary in  

the trap cases that there must be a shadow witness and conversation  

between  the  complainant  and  the  accused  should  be  recorded  or  

heard by the independent witness.  In absence of the shadow witness,  

for any reason, accused cannot insist that demand and acceptance is  

required by the statute to be proved by corroboration.  In the instant  

case, the appellant no.2 has accepted the money at the instance and  

in the presence of appellant no.1.  There is no reason to disbelieve  

the  testimony of  the  complainant  nor  the  recovery  of  the  tainted  

money can be doubted.  Thus, the appeal lacks merit and is liable to  

be dismissed.

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5. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.

6. There are concurrent finding of facts that appellant Mukut  

Bihari  asked  for  bribe  as  stated  by  Rafiq  (PW.1).   It  is  duly  

supported by Keshar Singh, S.H.O. (PW.10), the leader of the trap  

party  as he deposed that persons sitting there asked for money.  The  

acceptance had duly been corroborated by R.C. Pareek (PW.3), who  

deposed  that  the  money  was  lying  on  the  table.  Zaheer  Ahmed,  

Constable  (PW.7)  stated  that  he  saw  Kalyan  Mal  counting  the  

money.    The trap stood proved by the depositions of Rafiq (PW.1),  

R.C. Pareek (PW.3), Mohd. Rasheed (PW.6), Zaheer Ahmed (PW.7)  

and Keshar Singh (PW.10).  All the witnesses narrated fully how the  

trap was conducted from the very beginning till the seizure of the  

tainted  money  including  the  making  of  seisure  memos  etc.   Dr.  

Bavel  (PW.5) admitted the practice of  donations by patients.  Mr.  

R.C.  Pareek  (PW.3)  and  Mohd.  Rasheed  (PW.6)  have  been  

independent witnesses.

7. The  courts  below  considered  the  facts  properly  and  

appreciated the evidence in correct perspective and then reached the  

conclusion that the charges stood fully proved against the appellants.  

The explanation  furnished by the  appellants  that  they had falsely  

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been enroped due to enmity could not be proved for the reason that  

no  evidence  could  be  brought  on  record  indicating  any  previous  

enmity between the complainant and the appellants nor any evidence  

was available to show that the complainant was not satisfied with the  

treatment given to his father  and he could act  with some oblique  

motive in order to falsely implicate the appellants.  Thus, under the  

garb of donation, he had offered the tainted money to the appellants  

and got them arrested.

8. The law on the issue is well settled that demand of illegal  

gratification is sine qua non for constituting an offence under the Act  

1988. Mere recovery of tainted money is not sufficient to convict the  

accused, when the substantive evidence in the case is not reliable,  

unless there is evidence to prove payment of bribe or to show that  

the money was taken voluntarily as bribe. 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, but the burden rests on the accused to displace  

the statutory presumption raised under Section 20 of the Act 1988,  

by bringing on record evidence,  either  direct  or  circumstantial,  to  

establish with reasonable probability, that the money was accepted  

by him, other than as a motive or reward as referred to in Section 7  

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of the Act, 1988. While invoking the provisions of Section 20 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. However, before 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.  The  

complainant is an interested and partisan witness concerned with the  

success of the trap and his evidence must be tested in the same way  

as that of any other interested witness and in a proper case the court  

may  look  for  independent  corroboration  before  convicting  the  

accused person.  

(Vide: Ram Prakash Arora v.  The State of Punjab AIR 1973 SC  

498;  Panalal Damodar Rathi v. State of Maharashtra AIR 1979  

SC 1191;  Suraj Mal v.  The State (Delhi Admn.) AIR 1979 SC  

1408; Smt. Meena Balwant Hemke v. State of Maharashtra AIR  

2000 SC 3377;  T. Subramanian v. The State of T.N.,  AIR 2006  

SC 836; A. Subair v. State of Kerela (2009) 6 SCC 587; State of  

Maharashtra v. Dnyaneshwar Laxman Rao Wankhede (2009) 15  

SCC  200;  C.M.  Girish  Babu  v.  CBI,  Cochin,  High  Court  of  

Kerala, AIR 2009 SC 2022; and State of Kerala and Anr. v. C.P.  

Rao (2011) 6 SCC 450)

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9. The  case  of  the  appellants  has  no  merit  as  the  case  is  

squarely covered by the judgment of this Court in C.M. Sharma v.  

State of A.P. TH. I.P., AIR 2011 SC 608, wherein a similar issue  

had been raised that the complainant alongwith the shadow witness  

went to the office of the accused but the accused asked the shadow  

witness to go out of the chamber.  Shadow witness left the chamber.  

However,  the  complainant  brought  the  shadow  witness  in  the  

chamber  and  explained  to  the  accused  that  he  was  his  financer.  

Despite that the accused again asked the shadow witness to leave the  

chamber and thus, he went out.  The accused demanded the money  

and the complainant paid over the tainted money to him, which he  

received from his  right  hand and kept in right  side pocket  of  the  

trouser.  A signal was given, whereupon he was trapped by the team  

which apprehended the accused and conducted sodium carbonate test  

on  the  fingers  of  the  right  hand  and  right  trouser  pocket  of  the  

accused,  which turned pink.  The tainted notes were lying on the  

floor of the office, which were recorded.

10. This Court, after considering various judgments of this Court  

including  Panalal  Damodar  Rathi  (supra)  and  Smt. Meena  

Balwant Hemke (supra) held that acceptance of the submission of  

the accused that the complainant’s version required corroboration in  

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all  circumstances,  in  abstract  would  encourage  the  bribe  taker  to  

receive  illegal  gratification  in  privacy  and  then  insist  for  

corroboration in case of the prosecution.  Law cannot countenance  

such  situation.   Thus,  it  is  not  necessary  that  the  evidence  of  a  

reliable witness is necessary to be corroborated by another witness,  

as  such  evidence  stands  corroborated  from the  other  material  on  

record.   The  court  further  distinguished  the  case  of  Panalal  

Damodar Rathi (supra) on the ground that in that case the Panch  

witness had not supported the prosecution case and therefore,  the  

benefit of doubt was given to the accused.  In Smt. Meena Balwant  

Hemke  (supra) as the evidence was contradictory, the corroboration  

was found necessary.   

11. Undoubtedly, in Smt. Meena Balwant Hemke (supra), this  

Court held that law always favours the presence and importance of a  

shadow witness in the trap party not only to facilitate such witness to  

see but also overhear what happens and how it happens.   

12. This Court in Chief Commercial Manager, South Central  

Railway, Secunderabad & Ors. v. G. Ratnam & Ors., AIR 2007  

SC 2976, considered the issue as to whether non-observance  of the  

instructions laid down in para nos. 704-705 of the Railway Vigilance  

Manual would vitiate the departmental proceedings. The said manual  

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provided  for  a  particular  procedure  in  respect  of  

desirability/necessity of the shadow witness in a case of trap. This  

Court  held  that  these  were  merely  executive  instructions  and  

guidelines  and  did  not  have  statutory  force,  therefore,  non-

observance  thereof  would  not  vitiate  the  proceedings.   Executive  

instructions/orders do not confer any legally enforceable rights on  

any  person  and  impose  no  legal  obligation  on  the  subordinate  

authorities for whose guidance they are issued.  

13.  In Moni Shankar v. Union of India & Anr.,  (2008) 3 SCC  

484, this Court held that instructions contained in Railway Vigilance  

Manual should not be given a complete go-bye as they provide for  

the safeguards to avoid false implication of a railway employee.  

14.   So far as the instant case is concerned, the appellants had  

been working under the health department of the State of Rajasthan.  

No  provision  analogous  to  the  paragraphs  contained  in  Railway  

Vigilance Manual, applicable in the health department of the State of  

Rajasthan at the relevant time had been brought to the notice of the  

courts below, nor had been produced before us.  

     Therefore, it can be held that it is always desirable to have a  

shadow witness in the trap party but mere absence of such a witness  

would not vitiate the whole trap proceedings.   

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15. In the instant case, there is no contradiction in the deposition  

of the witnesses.  The witnesses have truthfully deposed that they did  

not hear the conversation between the accused and the complainant.   

Therefore,  their  version  is  without  any  embellishment  and  

improvement.  There could be no reason/motive for Rafiq (PW.1) to  

falsely enrope the appellants in the case.  

 The  appeal  is  devoid  of  any  merit  and is,  accordingly,  

dismissed.

However,  considering  the  fact  that  the  incident  occurred  

about  two  decades  ago  and  the  appellants  suffer  from  severe  

ailments, they have lost their service long ago and suffered the agony  

of protracted litigation, the appellant no.1 has been suffering from  

acute pancreatitis and both the appellants have served the sentence  

for more than six months, in the facts and circumstances of the case,  

their sentence is reduced to one year.     

..……………………….J. (Dr. B.S. CHAUHAN)

.………………………..J.  (DIPAK MISRA)

New Delhi,  May 25, 2012

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