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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 554 OF 2012

Vinod Kumar ... Appellant

Versus

State of Punjab       ... Respondent

J U D G M E N T

Dipak Misra, J.

If one is asked a question, what afflicts the legally  

requisite criminal trial in its conceptual eventuality in this  

country  the  two  reasons  that  may  earn  the  status  of  

phenomenal signification are, first, procrastination of trial  

due to non-availability of witnesses when the trial  is in  

progress and second, unwarranted adjournments sought  

by the counsel conducting the trial and the unfathomable  

reasons for acceptation of such prayers for adjournments

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by the trial courts,  despite a statutory command under  

Section  309  of  the  Code  of  Criminal  Procedure,  1973  

(CrPC) and series of pronouncements by this Court.  What  

was a malady at one time, with the efflux of time, has  

metamorphosed  into  malignancy.  What  was  a  mere  

disturbance once has become a disorder, a diseased one,  

at present.  

2. The  instant  case  frescoes  and  depicts  a  scenario  

that exemplifies how due to passivity of the learned trial  

Judge,  a  witness,  despite  having  stood  embedded  

absolutely  firmly  in  his  examination-in-chief,  has  

audaciously  and,  in  a  way,  obnoxiously,  thrown all  the  

values to the wind, and paved the path of tergiversation.  

It would not be a hyperbole to say that it is a maladroit  

and  ingeniously  designed  attempt  to  strangulate  and  

crucify the fundamental purpose of trial, that is, to arrive  

at  the  truth  on  the  basis  of  evidence  on  record.  The  

redeeming  feature  is,  despite  the  malevolent  and  

injurious assault, the cause of justice has survived,  for  

there is, in the ultimate eventuate, a conviction which is  

under assail in this appeal, by special leave.   

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3. The  narration  of  the  sad  chronology  shocks  the  

judicial  conscience  and  gravitates  the  mind  to  pose  a  

question, is it justified for any conscientious trial Judge to  

ignore  the  statutory  command,  not  recognize  “the  felt  

necessities of time” and remain impervious to the cry of  

the collective asking for justice or give an indecent and  

uncalled  for  burial  to  the  conception  of  trial,  totally  

ostracizing the concept that a civilized and orderly society  

thrives on rule of law which includes “fair  trial” for the  

accused as well as the prosecution.  

4. In  the  aforesaid  context,  we  may  recapitulate  a  

passage from Gurnaib Singh V. State of Punjab.1

“...... We are compelled to proceed to reiterate  the law and express our anguish pertaining to  the manner in which the trial was conducted as  it  depicts  a  very  disturbing  scenario.  As  is  demonstrable  from  the  record,  the  trial  was  conducted  in  an  extremely  haphazard  and  piecemeal manner. Adjournments were granted  on a mere asking. The cross-examination of the  witnesses was deferred without recording any  special  reason  and  dates  were  given  after  a  long gap. The mandate of the law and the views  expressed  by  this  Court  from  time  to  time  appears to have been totally kept at bay. The  learned trial Judge, as is perceptible, seems to  have  ostracised  from  his  memory  that  a  criminal trial has its own gravity and sanctity. In  

1  (2013) 7 SCC 108

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this  regard,  we  may  refer  with  profit  to  the  pronouncement  in  Talab  Haji  Hussain v.  Madhukar Purshottam Mondkar2 wherein it has  been  stated  that  an  accused  person  by  his  conduct cannot put a fair trial into jeopardy, for  it  is  the  primary  and  paramount  duty  of  the  criminal  courts  to  ensure that  the risk  to  fair  trial  is  removed  and  trials  are  allowed  to  proceed  smoothly  without  any  interruption  or  obstruction.”

5. Be it noted, in the said case, the following passage  

from  Swaran  Singh  V.  State  of  Punjab3,  was  

reproduced.

“It has become more or less a fashion to have a  criminal case adjourned again and again till the  witness  tires  and gives  up.  It  is  the  game of  unscrupulous lawyers to  get adjournments for  one excuse or the  other till  a witness is  won  over  or  is  tired.  Not  only  is  a  witness  threatened, he is abducted, he is maimed, he is  done away  with,  or  even  bribed.  There  is  no  protection  for  him.  In  adjourning  the  matter  without  any  valid  cause  a  court  unwittingly  becomes party to miscarriage of justice.”

6. In  this  regard,  it  is  also  fruitful  to  refer  to  the  

authority  in  State of  U.P.  V.  Shambu Nath Singh4,  

wherein this Court deprecating the practice of a Sessions  

2  AIR 1958 SC 376 3  (2000) 5 SCC 668 4  (2001) 5 SCC 667

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Court adjourning a case in spite of the presence of the  

witnesses willing to be examined fully, opined thus:

“9. We  make  it  abundantly  clear  that  if  a  witness  is  present  in  court  he  must  be  examined  on  that  day.  The  court  must  know  that  most  of  the  witnesses  could  attend  the  court only at heavy cost to them, after keeping  aside their own avocation. Certainly they incur  suffering  and  loss  of  income.  The  meagre  amount of bhatta (allowance) which a witness  may be paid by the court is  generally a poor  solace for the financial loss incurred by him. It  is a sad plight in the trial courts that witnesses  who  are  called  through  summons  or  other  processes stand at the doorstep from morning  till evening only to be told at the end of the day  that the case is adjourned to another day. This  primitive  practice  must  be  reformed  by  the  presiding officers of the trial courts and it can  be  reformed  by  everyone  provided  the  presiding officer concerned has a commitment  towards duty.”

7. With  the  aforesaid  concern  and  agony,  we  shall  

presently  proceed  to  adumbrate  the  necessitous  facts.  

We have already stated that despite the impasse, there is  

a conviction by the trial Judge and an affirmation thereof  

by the High Court.   Elucidating the factual  score,  be it  

noted, the instant appeal is directed against the judgment  

and order dated 13.10.2011 passed by the High Court of  

Punjab and Haryana at Chandigarh in Criminal Appeal No.  

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1280-SB of 2001 (O&M) wherein  the learned Single Judge  

has  given  the  stamp of  approval  to  the  judgment  and  

order  dated  24.10.2001  passed  by  the  learned Special  

Judge,  Patiala  whereby  he had convicted  the  appellant  

under Section 7 and 13(2) of the Prevention of Corruption  

Act,  1988 (for  brevity,  ‘the Act’)  and sentenced him to  

undergo rigorous imprisonment for a period of two years  

and to pay a fine of Rs.2,000/- with a default clause.  

8.  The prosecution case, as has been unfurled, is that  

Baj  Singh,  PW-5,  used  to  bring  earth  in  tractor  trolley  

within the municipal area of Rajpura.  The appellant, at  

the relevant time, was posted as Octroi Inspector and he  

demanded Rs.20/- per trolley for permitting him to enter  

into the municipal  area.   Eventually,  a deal  was struck  

that  the  accused-appellant  would  be  paid  Rs.500/-  per  

month for the smooth operation.  As the prosecution story  

further  unfolds,  on  25.1.1995,  Baj  Singh  met  Jagdish  

Verma, PW-7, and disclosed before him the fact about the  

demand of the accused for  permitting the entry of the  

tractor trolley inside the municipal area and thereafter, as  

he was not desirous of obliging the accused, he narrated  

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the entire story to DSP Vigilance, who in his turn, with the  

intention to lay the trap, explained it to Baj Singh, PW-5,  

and Jagdish Verma, PW-7 about the procedure of the trap.  

As alleged, Baj Singh gave five notes of Rs.100/- to the  

DSP Vigilance who noted the numbers of the notes and  

completed other formalities like applying phenolphthalein  

powder  on  the  currency  notes.   Thereafter,  they  

proceeded to the place of the accused and a trap was  

laid.  Eventually,  currency  notes  amounting  to  Rs.500/-  

were  recovered  from the  trouser  of  the  appellant  and  

were  taken  into  possession.   The  statements  of  the  

witnesses  were  recorded  and  after  completing  the  

investigation  chargesheet  was  placed  for  the  offences  

punishable under Sections 7 and 13(2) of the Act.

9. To  bring  home  the  charges  against  the  accused-

appellant,  the  prosecution  examined  eight  witnesses.  

PW-1  to  PW-4  are  formal  witnesses.   PW-5,  the  

complainant resiled from his previous statement and was  

cross-examined by the prosecution.  Sher Singh, PW-6, a  

clerk  in  the  office  of  Tehsildar,  Rajpura had joined the  

police party as an independent witness.   He supported  

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the case of the prosecution in detail.  Jagdish Verma, PW-

7, in his examination-in-chief, supported the prosecution  

case in all aspects, but in cross-examination, resiled from  

his  examination-in-chief.   The  witness,  PW-7,  was  

declared hostile  on a prayer being made by the Public  

Prosecutor and was re-examined.  Narinder Pal Kaushal,  

PW-8, DSP of Vigilance Bureau who had led the raiding  

party on 25.1.1995, in his deposition, deposed in detail  

about  the  conducting  of  the  raid  and  recovery  of  the  

amount.  

10.  The accused,  in his statement under Section 313  

CrPC, denied the allegations and took the plea of false  

implication due to party faction and animosity.  It was his  

further stand that he was brought from his office and was  

taken to the office of the Tehsildar and thereafter to the  

Vigilance office.    

11. The learned trial Judge, on the basis of the evidence  

brought  on  record,  came  to  hold  that  though  the  

complainant  had  not  supported  the  case  of  the  

prosecution   yet prosecution had been able to prove the  

demand and acceptance of the bribe and the recovery of  

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the tainted money from the accused and, therefore, the  

presumption  as envisaged under Section 20 of the Act  

would  get  attracted  and  accordingly  convicted  the  

accused  and  sentenced  him,  as  has  been  stated  

hereinbefore.    

12. In appeal,  it  was contended before the High Court  

that when the testimony of Baj Singh, PW-5, and Jagdish  

Verma,  PW-7,  the  shadow  witness,  was  absolutely  

incredible,  the  same  could  not  have  been  pervertedly  

filtered by the learned trial Judge to convict the accused-

appellant for the crime in question.  It was also urged that  

mere recovery of the currency notes would not constitute  

the  offence  under  Section  7  of  the  Act.   It  was  also  

propounded that the offence under Section 13(2) of the  

Act  would  not  get  attracted  unless  the  demand  and  

acceptance  were  proven.   Non-involvement  of  any  

independent  witness  in  the  raid  was  also  seriously  

criticised.   The High Court posed the question whether  

the  prosecution had been able  to  prove the  factum of  

demand of bribe, its acceptance and the recovery of the  

money from the possession of the accused.  With regard  

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to demand of bribe, the High Court placed reliance on the  

testimony of the independent witness Sher Singh, PW-6,  

and the examination–in-chief of Jagdish Verma, PW-7, and  

came to hold that the demand of bribe had been proven.  

It appreciated the deposition of PW-7 and the documents,  

especially,  the Chemical  Examiner’s  report  of  the hand  

wash liquid and came to hold there had been acceptance  

of bribe.  Relating to the recovery of the tainted money,  

the  High  Court  took  note  of  the  fact  that  the  ocular  

testimony  had  been  duly  corroborated  by  the  

documentary evidence and hence, the recovery had been  

proved.  

13. Be  it  noted,  the  High  Court  placed  reliance  upon  

Raghubir Singh V. State of Haryana5 and Madhukar  

Bhaskarrao  Joshi  V.  State  of  Maharashtra6 and  

eventually came to hold that the prosecution had proven  

its case to the hilt and resultantly affirmed the conviction  

and  order  of  sentence  passed  by  the  trial  Court,  but  

reduced the sentence of 2 years’ rigorous imprisonment  

to one year. 5 (1974) 4 SCC 560 6  (2000) 8 SCC 571

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14. Criticizing the conviction as recorded by the learned  

trial Judge and affirmed by the High Court, it is submitted  

by Mr. Jain, learned senior counsel for the appellant that  

when the informant had not supported the case of the  

prosecution,  it  was  not  justifiable  on  the  part  of  the  

learned  trial  Judge  to  record  a  conviction  against  the  

accused.   It  is  his  submission that  on the basis  of  the  

testimony of PW-6 to PW-8, the conviction could not have  

been  recorded,  for  Sher  Singh,  PW-6,  is  not  a  witness  

either to the demand or acceptance of the bribe by the  

appellant and further the version PW-7 requires careful  

scrutiny, regard being had to the fact that he is a hostile  

witness.   It  is  also  urged  that  the  evidence  of  PW-8  

deserves to be discarded as he is an interested witness.  

To  bolster  the  aforesaid  submissions,  learned  senior  

counsel has drawn inspiration from B. Jayaraj V. State  

of  Andhra  Pradesh7 and  M.R.  Purushotham  Vs.  

State of Karnataka8.

15. Apart from above, it is further put forth by him that  

as  PW-7  has  not  supported  the  prosecution  story  and  7  (2014) 4 SCALE 81 8  (2014) 11 SCALE 467

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stated to have been tutored to give statement, his whole  

testimony should have been thrown out of consideration  

and  no  reliance  should  have  been  placed  on  it.   It  is  

contended  by   him  that  the  High  Court  has  failed  to  

appreciate the importance of cross-examination of PW-7  

and  hence,  the  judgment  affirming  the  conviction  is  

absolutely  flawed.   To  buttress  the  said  submission,  

reliance  has  been  placed  on  Sat  Paul  V.  Delhi  

Administration9.   It  is  the  further  stand  of  Mr.  Jain,  

learned  senior  counsel  that  the  evidence  of  the  trap  

witnesses,  PW-6  and  PW-8  should  have  been  wholly  

ignored  as  they  are  partisan  witnesses  and  their  

statements could not have been given any credence to  

inasmuch as  there has  been no corroboration.   In  this  

context,  he  has  commended  us  to  the  authorities  in  

State of Bihar V. Basawan Singh (CB)10,  Major E.G.  

Barsey  V.  State  of  Bombay11,  Bhanupratap  

Hariprasad  Dave  V.  State  of  Gujarat12 and MO  

Shamshuddin V. State of Kerala13. 9  (1976) 1 SCC 727 10  (1959) SCR 195 11  (1962) 2 SCR 195 12  (1969) 1 SCR 22 13  (1995) 3 SCC 351

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16. Learned senior counsel would contend, solely on the  

basis  of  evidence  of  recovery,  a  conviction  is  not  

sustainable  and  in  the  obtaining  factual  matrix,  the  

presumption under Section 20 of the Act would not be  

attracted.  To substantiate the said proposition, strength  

has  been  drawn  from  C.M.  Girish  Babu  V.  C.B.I.,   

Cochin14 and Benarsi Das V. State of Haryana15.  

17. The last plank of submission of Mr. Jain, is that in the  

instant case, the prosecution was launched by Narinder  

Pal  Kaushal,  PW-8,  who has  investigated  into  the  case  

and, therefore, the concept of fair investigation, has been  

totally  marred  as  a  consequence  of  which,  the  trial  is  

vitiated.   Learned senior  counsel  would contend that  a  

person who is a part of the trap party is an interested  

witness and he would be enthusiastic to see that the trap  

is sustained in every manner and in such a situation, it is  

per se an unfair and biased investigation that frustrates  

the  essential  principle  inhered  under  Article  21  of  the  

Constitution and eventually the trial.  

14  (2009) 3 SCC 779 15  (2010) 4 SCC 450

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18. Mr. Madhukar, learned senior counsel appearing for  

the State of Punjab, per contra, would contend that the  

view expressed by the learned trial Judge and the High  

Court cannot be found fault with, for a conviction under  

the Act can be based on the evidence of trap witnesses, if  

they are trustworthy and the ingredients of the offence  

are satisfied and in the case at hand, the High Court on  

x-ray of the evidence has so recorded.  It is urged by him  

that neither the learned trial Judge nor the High Court has  

fallen into error by applying the principle of presumption  

as engrafted under Section 20 of the Act.  It is canvassed  

by Mr. Madhukar that the evidence of the hostile witness  

can be placed reliance upon by the prosecution and in the  

obtaining factual matrix,  the testimony of PW-7, one of  

the  shadow witnesses,  renders  immense  assistance for  

establishing the  case of  the  prosecution.   He has  with  

great  pains,  taken  us  through  the  evidence  to  

substantiate  the  stand  that  the  conviction  recorded  

against the appellant is totally defensible.   

19. Keeping in abeyance what we intend to say on the  

facet  of  anguish expressed by us in  the beginning,  we  

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shall  proceed to deal with the proponement of Mr.  Jain  

that  when the investigation conducted by Mr.  Narinder  

Pal Kaushal, PW-8, is vitiated on the foundation that he  

has lodged the FIR, the trial is also vitiated.  Though the  

said submission has been raised and taken note of by us  

as the last plank, yet we think it seemly to deal with it  

first as it goes to the root of the matter. On a perusal of  

the material on record, it is manifest that PW-8 is a part  

of  the raiding party,  a  shadow witness,  and admittedly  

had also sent the complaint through a Constable to the  

concerned police station for lodging of FIR.  This being the  

factual  score,  we  are  required  to  take  note  of  certain  

authorities in this regard. In Basawan Singh (supra), the  

Constitution Bench, after referring to the decision in Shiv  

Bahadur  Singh  V.  State  of  Vindhya  Pradesh16,  

opined  that  the  said  decision  does  not  lay  down  an  

invariable  rule  that  the  evidence of  the witness  of  the  

raiding party must be discarded in the absence of any  

independent corroboration.  The larger Bench proceeded  

to state thus:

16 AIR 1954 SC 322

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“......The  correct  rule  is  this:  if  any  of  the  witnesses  are  accomplices  who  are  particeps  criminis in respect of the actual crime charged,  their evidence must be treated as the evidence  of  accomplices  is  treated;  if  they  are  not  accomplices  but  are  partisan  or  interested  witnesses, who are concerned in the success of  the trap, their evidence must be tested in the  same  way  as  other  interested  evidence  is  tested  by  the  application  of  diverse  consideration  which  must  vary  from  case  to  case, and in a proper case, the Court may even  look  for  independent  corroboration  before  convicting the accused person.  If a Magistrate  puts  himself  in  the  position  of  a  partisan  or  interested witness, he cannot claim any higher  status  and  must  be  treated  as  any  other  interested witness.”  

20. In  Major E.G.  Barsey  (supra),  while  dealing with  

the  evidence  of  a  trap  witness,  the  court  opined  that  

though a trap witness is not an approver, he is certainly  

an interested witness in the sense that he is interested to  

see that the trap laid by him succeeds.  The Court further  

laid down that he can at least be equated with a partisan  

witness and it would not be admissible to rely upon his  

evidence without corroboration, but his evidence is not a  

tainted one.  

21. In  Bhanupratap  Hariprasad  Dave  (supra),  the  

Court observed that the police witnesses can be said to  

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be  partisan  witnesses  as  they  are  interested  in  the  

success of the trap laid by them, but it cannot be said  

that  they  are  accomplices.  Thereafter,  the  Court  

proceeded to state that their evidence must be tested in  

the same way as any other interested witness is tested  

and  in  an  appropriate  case,  the  Court  may  look  for  

independent corroboration before convicting the accused  

person.  The three-Judge Bench reiterated the principle  

thus:

“....It is now well settled by a series of decisions  of this Court that while in the case of evidence  of an accomplice, no conviction can be based  on  his  evidence  unless  it  is  corroborated  in  material particulars but as regards the evidence  of  a  partisan witness it  is  open to a court  to  convict an accused person solely on the basis of  that  evidence,  if  it  is  satisfied  that  that  evidence is reliable.  But it may in appropriate  case look for corroboration”.

22. In  MO  Shamshuddin (supra),  the  Court,  after  

referring to the decisions in DPP V. Hester17 and DPP V.  

Kilbourne18, made a distinction between accomplice and  

an  interested  witness.   The  Court,  referred  to  the  

authority  in  Basawan  Singh (supra)  at  length  and  17  (1972) 3 All ER 1056 18  (1973) 1 All ER 440

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eventually  adverted  to  the  concept  of  corroborating  

evidence.  In that context it has been ruled thus:

“.......Now coming to the nature of corroborating  evidence that is required,  it is well-settled that  the corroborating evidence can be even by way  of circumstantial evidence. No general rule can  be  laid  down  with  respect  to  quantum  of  evidence corroborating the testimony of a trap  witness which again would depend upon its own  facts and circumstances like the nature of the  crime,  the  character  of  trap  witness  etc.  and  other  general  requirements  necessary  to  sustain the conviction in  that case.  The court  should  weigh  the  evidence  and  then  see  whether  corroboration is  necessary. Therefore  as a rule of law it cannot be laid down that the  evidence of every complainant in a bribery case  should  be  corroborated  in  all  material  particulars  and  otherwise  it  cannot  be  acted  upon. Whether corroboration is necessary and if  so to what extent and what should be its nature  depends upon the facts  and circumstances of  each case. In a case of bribe, the person who  pays  the  bribe  and  those  who  act  as  intermediaries  are  the  only  persons  who  can  ordinarily be expected to give evidence about  the bribe and it is not possible to get absolutely  independent  evidence  about  the  payment  of  bribe.”

From the aforesaid authorities it is clear that a trap  

witness is an interested witness and his testimony, to be  

accepted and relied upon requires corroboration and the  

corroboration  would  depend  upon  the  facts  and  

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circumstances, nature of the crime and the character of  

the trap witness.  

23.  There is no doubt that the status of PW8 is that of an  

interested witness.  There is no cavil over the fact that he  

had sent the FIR and conducted the investigation, but the  

question  posed  is  whether  the  investigation  by  him  is  

vitiated.  In this context we may, with profit, refer to the  

decision in  Bhagwan Singh V. State of Rajasthan19,  

where one Ram Singh, who was a Head Constable, was  

the person to whom the offer of bribe was alleged to have  

been  made  by  the  appellant  therein  and  he  was  the  

informant who had lodged the First Information Report for  

taking  action  against  the  appellant.   He  himself  had  

undertaken the investigation.   In  that  factual  backdrop  

the Court ruled thus:

“Now,  ordinarily  this  Court  does  not  interfere  with concurrent findings of fact reached by the  trial  court  and  the  High  Court  on  an  appreciation of the evidence. But this is one of  those rare and exceptional cases where we find  that several important circumstances have not  been taken into account by the trial court and  the High Court and that has resulted in serious  miscarriage  of  justice  calling  for  interference  from this Court. We may first refer to a rather  

19  (1976) 1 SCC 15

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disturbing feature of this case. It is indeed such  an  unusual  feature  that  it  is  quite  surprising  that it  should have escaped the notice of the  trial court and the High Court. Head Constable  Ram Singh was the person to whom the offer of  bribe was alleged to have been made by the  appellant  and  he  was  the  informant  or  complainant  who  lodged  the  first  information  report for taking action against the appellant. It  is  difficult  to  understand  how  in  these  circumstances Head Constable Ram Singh could  undertake investigation of the case. How could  the complainant himself be the investigator? In  fact,  Head  Constable  Ram  Singh,  being  an  officer below the rank of Deputy Superintendent  of Police, was not authorised to investigate the  case but we do not attach any importance to  that fact, as that may not affect the validity of  the  conviction.  The  infirmity  which  we  are  pointing  out  is  not  an  infirmity  arising  from  investigation by an officer not authorised to do  so, but an infirmity arising from investigation by  a Head Constable who was himself the person  to whom the bribe was alleged to have been  offered  and  who  lodged  the  first  information  report as informant or complainant. This is an  infirmity  which  is  bound  to  reflect  on  the  credibility of the prosecution case”.

24. In Megha Singh V. State of Haryana20, the Court  

noticed the discrepancy in the depositions of PW-2 and  

PW-3 and absence of independent corroboration.  Be it  

noted,  the  Court  was  dealing  with  an  offence  under  

Section  6(1)  of  the  Terrorist  and  Disruptive  Activities  

(Prevention)  Act,  1985.   In  that  context  the  Court  20  (1996) 11 SCC 709

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observed that the testimony of the said witnesses did not  

inspire  confidence  about  the  reliability  of  the  

prosecution’s case.  Proceeding further, the Court held:

“....  We  have  also  noted  another  disturbing  feature in  this  case.   PW 3,  Siri  Chand, Head  Constable arrested the accused and on search  being  conducted  by  him  a  pistol  and  the  cartridges were recovered from the accused.  It  was on his complaint a formal first information  report was lodged and the case was initiated.  He  being  complainant  should  not  have  proceeded with  the  investigation  of  the  case.  But it appears to us that he was not only the  complainant in the case but he carried on with  the  investigation  and  examined  witnesses  under Section 161 CrPC.  Such practice, to say  the  least,  should  not  be  resorted  to  so  that  there may not be any occasion to suspect fair  and impartial investigation”.

25. In  this  regard,  it  is  useful  to  refer  to  the  

pronouncement in  State vs. V. Jayapaul21 wherein the  

Court  posed  the  question  whether  the  High  Court  was  

justified  in  quashing  the  criminal  proceedings  on  the  

ground that the police officer, who had lodged/recorded  

the FIR regarding the suspected commission of  certain  

cognizable  offence  by  the  respondent  should  not  have  

investigated the case.  The case against the accused was  

that he was indulging in corrupt practices by extracting  21  (2004) 5 SCC 223

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money from the drivers and owners of the motor-vehicles  

while conducting check of the vehicles and making use of  

certain bogus notice forms in the process.  The charge-

sheet  was filed under  Sections 420 and 201 I.P.C.  and  

Section 13(2) read with Section 13(1)(d) of the Act.  The  

Court referred to the decision in the  State of U.P. V.  

Bhagwant Kishore Joshi22,  wherein it  has been ruled  

thus:

“Section 154 of the Code prescribes the mode  of recording the information received orally or  in  writing  by  an  officer  in  charge  of  a  police  station  in  respect  of  the  commission  of  a  cognisable  offence.  Section  156  thereof  authorises  such  an  officer  to  investigate  any  cognisable offence prescribed therein.  Though  ordinarily  investigation  is  undertaken  on  information  received  by  a  police  officer,  the  receipt  of  information  is  not  a  condition  precedent  for  investigation.  Section  157  prescribes the procedure in the matter of such  an investigation which can be initiated either on  information  or  otherwise.  It  is  clear  from the  said  provisions  that  an  officer  in  charge of  a  police station can start investigation either on  information or otherwise.”

26. After  reproducing  the  said  paragraph,  the  Court  

proceeded to state thus:

“Though  there  is  no  such  statutory  bar,  the  premise on which the High Court quashed the  

22 AIR 1964 SC 221

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proceedings was that the investigation by the  same  officer  who  “lodged”  the  FIR  would  prejudice  the  accused  inasmuch  as  the  investigating officer cannot be expected to act  fairly  and objectively.  We find no principle  or  binding authority to hold that the moment the  competent  police  officer,  on  the  basis  of  information  received,  makes  out  an  FIR  incorporating  his  name  as  the  informant,  he  forfeits  his  right  to  investigate.  If  at  all,  such  investigation  could  only  be  assailed  on  the  ground of bias or real likelihood of bias on the  part of the investigating officer. The question of  bias  would  depend  on  the  facts  and  circumstances of each case and it is not proper  to  lay  down  a  broad  and  unqualified  proposition, in the manner in which it has been  done by the High Court, that whenever a police  officer proceeds to investigate after registering  the  FIR  on  his  own,  the  investigation  would  necessarily be unfair or biased. In the present  case, the police officer received certain discreet  information,  which,  according  to  his  assessment,  warranted a probe and therefore  made up his mind to investigate. The formality  of  preparing  the  FIR  in  which  he  records  the  factum  of  having  received  the  information  about the suspected commission of the offence  and  then  taking  up  the  investigation  after  registering  the  crime,  does  not,  by  any  semblance  of  reasoning,  vitiate  the  investigation on the ground of bias or the like  factor.  If  the  reason  which  weighed  with  the  High  Court  could  be  a  ground  to  quash  the  prosecution,  the  powers  of  investigation  conferred on the police officers would be unduly  hampered for no good reason. What is expected  to be done by the police officers in the normal  course of discharge of their official  duties will  then be vulnerable to attack.”

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Be it noted, the Court distinguished the decisions in  

Bhagwant  Kishore  Joshi (supra)  and  Megha  Singh  

(supra).   

27. At  this  juncture,  it  would  be  fruitful  to  refer  to  

S.Jeevanatham  V.  State  (through  Inspector  of   

Police, T.N.)23.  In the said case, the appellant was found  

guilty under Section 8(c) read with Section 20(b)(ii) of the  

Narcotic Drugs and Psychotropic Substances Act,  1985.  

One of the contentions that was canvassed was that PW-

8,  who  lodged  the  FIR  had  himself  conducted  the  

investigation  and  hence,  the  entire  investigation  was  

vitiated.  The Court referred to the decision in  Jayapaul  

(supra) and opined thus:

“In the instant case, PW 8 conducted the search  and  recovered  the  contraband  article  and  registered the case and the article seized from  the  appellants  was  narcotic  drug  and  the  counsel  for the appellants could not point out  any  circumstances  by  which  the  investigation  caused  prejudice  or  was  biased  against  the  appellants. PW 8 in his official capacity gave the  information, registered the case and as part of  his official duty later investigated the case and  filed  a  charge-sheet.  He  was  not  in  any  way  personally interested in the case. We are unable  to  find  any  sort  of  bias  in  the  process  of  investigation.”

23  (2004) 5 SCC 230

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28. In the instant case, PW-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  

(supra) 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.  

29. The next aspect which requires to be adverted to is  

whether testimony of a hostile evidence that has come on  

record should be relied upon or  not.   Mr.  Jain,  learned  

senior  counsel  for  the appellant would contend that as  

PW-7  has  totally  resiled  in  his  cross-examination,  his  

evidence is to be discarded in toto.  On a perusal of the  

testimony  of  the  said  witness,  it  is  evincible  that  in  

examination-in-chief,  he  has  supported  the  prosecution  

story  in  entirety  and  in  the  cross-examination  he  has  

taken the path of prevarication. In  Bhagwan Singh V.  

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State of Haryana24, it has been laid down that even if a  

witness  is  characterised   has  a  hostile  witness,  his  

evidence is not completely effaced.  The said 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. In Khuji @ Surendra Tiwari V.  

State of Madhya Pradesh25, the Court after referring to  

the  authorities  in  Bhagwan  Singh (supra),  Rabindra  

Kumar Dey V. State of Orissa26 and  Syad Akbar V.  

State of Karnataka27, opined that the evidence of such  

a  witness  cannot  be  effaced  or  washed  off  the  record  

altogether, but the same can be accepted to the extent it  

is found to be dependable on a careful scrutiny thereof.  

30. In this context, we think it  apt to reproduce some  

passages  from  Rammi  @  Rameshwar  V.  State  of   

Madhya Pradesh28,  where the Court  was dealing with  

the purpose of re-examination.  After referring to Section  

138 of the Evidence Act, the Court held thus:

24  (1976) 1 SCC 389 25  (1991) 3 SCC 627 26  (1976) 4 SCC 233 27  (1980) 1 SCC 30 28  (1999) 8 SCC 649

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“There  is  an  erroneous  impression  that  re- examination should be confined to clarification  of ambiguities which have been brought down  in cross-examination. No doubt, ambiguities can  be resolved through re-examination. But that is  not the only function of the re-examiner. If the  party  who  called  the  witness  feels  that  explanation is required for any matter referred  to in cross-examination he has the liberty to put  any  question  in  re-examination  to  get  the  explanation.  The  Public  Prosecutor  should  formulate  his  questions  for  that  purpose.  Explanation  may be required  either  when the  ambiguity  remains  regarding  any  answer  elicited  during  cross-examination  or  even  otherwise.  If  the  Public  Prosecutor  feels  that  certain answers require more elucidation from  the witness he has the freedom and the right to  put such questions as he deems necessary for  that purpose, subject of course to the control of  the  court  in  accordance  with  the  other  provisions.  But the court cannot direct him to  confine his questions to ambiguities alone which  arose in cross-examination.

Even  if  the  Public  Prosecutor  feels  that  new  matters should be elicited from the witness he  can do so, in which case the only requirement is  that he must secure permission of the court. If  the  court  thinks  that  such  new  matters  are  necessary for proving any material fact, courts  must  be  liberal  in  granting  permission  to  put  necessary questions”.

31. We  have  reproduced  the  aforesaid  paragraphs  to  

highlight that when the prosecution has such a right in  

the process of re-examination, as a natural corollary, the  

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testimony of a hostile witness cannot be brushed aside.  

On the contrary, both the prosecution and the defence  

can  rely  for  their  stand  and  stance.   Emphasis  on  re-

examination  by  the  prosecution  is  not  limited  to  any  

answer  given  in  the  cross-examination,  but  the  Public  

Prosecutor  has  the  freedom  and  right  to  put  such  

questions  as  it  deems  necessary  to  elucidate  certain  

answers  from  the  witness.   It  is  not  confined  to  

clarification  of  ambiguities,  which  have  been  brought  

down in the cross-examination.  

32. Mr. Jain, learned senior counsel has propounded that  

testimony  of  PW7 deserves  to  be  discredited,  and  the  

learned trial Judge as well as the High Court having not  

ignored have committed a grave error. We will be dealing  

with the aspect whether the evidence of PW-7 should be  

totally ignored or not while we will be dwelling upon the  

credibility and acceptability of his testimony.  

33. As  a  contention  has  been  raised  that  once  the  

informant has resiled totally from his earlier statement no  

conviction can be recorded on the basis of evidence of  

the  trap  witnesses,  it  required  to  be  carefully  dwelled  

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upon.  In this regard, reference to the authority in Hazari  

Lal v. State (Delhi Administration)29 would be apt. In  

the  said  case  a  police  Constable  was  convicted  under  

Section 5(2) of the Prevention of Corruption Act, 1947 on  

the  allegation  that  he  had  demanded  and  received  

Rs.60/- from the informant who was examined as PW-3  

and  had  resiled  from  his  previous  statement  and  was  

declared hostile by the prosecution. Official witnesses had  

supported the prosecution version.  Keeping in mind the  

evidence  of  the  official  witnesses  the  trial  Court  had  

convicted the appellant therein which was affirmed by the  

High Court.  A contention was raised that in the absence  

of any direct evidence to show that the police constable  

demanded  or  accepted  bribery  no  presumption  under  

Section 4 of the Act, 1947 could be drawn merely on the  

strength of recovery of the marked currency notes from  

the said police constable.  Chinnappa Reddy, J. speaking  

for the two-Judge Bench observed as follows:-  

“...It  is  not  necessary  that  the  passing  of  money should be proved by direct evidence.  It  may  also  be  proved  by  circumstantial  evidence.  The  events  which  followed  in  

29 (1980) 2 SCC 390

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quick succession in the present case lead to  the  only  inference  that  the  money  was  obtained by the accused from PW 3. Under  Section 114 of the Evidence Act the court  may  presume  the  existence  of  any  fact  which  it  thinks  likely  to  have  happened,  regard being had to the common course of  natural events,  human conduct and public  and  private  business,  in  their  relation  to  facts  of  the  particular  case.  One  of  the  illustrations to Section 114 of the Evidence  Act is  that  the court may presume that a  person who is  in  possession of  the stolen  goods soon after the theft, is either the thief  or has received the goods knowing them to  be  stolen,  unless  he  can  account  for  his  possession.  So  too,  in  the  facts  and  circumstances of the present case the court  may  presume that  the  accused  who  took  out the currency notes from his pocket and  flung  them  across  the  wall  had  obtained  them from PW 3, who a few minutes earlier  was shown to have been in  possession of  the notes. Once we arrive at the finding that  the accused had obtained the money from  PW 3, the presumption under Section 4(1)  of  the  Prevention  of  Corruption  Act  is  immediately attracted.”

34. It is pertinent to note here that in the aforesaid case  

the  decision  rendered  in  Sita  Ram  v.  State  of  

Rajasthan30 was  pressed into  service.   In  the  case  of  

Sita Ram (supra) the complainant had turned hostile in  

the  court  of  Special  Judge.   However,  the  trial  Judge  

30 (1975) 2 SCC 227

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convicted the accused who was tried along with another  

accused,  namely,  Vikram  Singh.   The  High  court  on  

appreciation of the evidence acquitted Vikram Singh but  

maintained the conviction against Sita Ram.  This Court  

opined that  the presumption under Section 4(1)  of  the  

1947 Act  could not  be drawn in the facts  of  the case.  

The  question,  whether  the  rest  of  the  evidence  was  

sufficient to establish that the accused had obtained the  

money from the complaint was not considered.  The Court  

in  Hazari Lal  (supra)  distinguished the pronouncement  

in Sita Ram (supra) by stating thus:-

“...The  question  whether  the  rest  of  the  evidence was sufficient to establish that the  accused had obtained the money from the  complainant  was  not  considered.  All  that  was taken as established was the recovery  of  certain  money  from  the  person  of  the  accused and it was held that mere recovery  of  money  was  not  enough  to  entitle  the  drawing  of  the  presumption  under  Section  4(1) of the Prevention of Corruption Act. The  Court did not consider the further question  whether recovery of the money along with  other circumstances could establish that the  accused had obtained gratification from any  person. In the present case we have found  that  the  circumstances  established  by  the  prosecution  entitled  the  court  to  hold  that  

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the accused received the gratification from  PW 3. In  Suraj Mal v.  State (Delhi Admn.)31,  also  it  was  said  mere  recovery  of  money  divorced  from  the  circumstances  under  which  it  was  paid  was  not  sufficient  when  the substantive evidence in the case was not  reliable to prove payment of bribe or to show  that  the  accused  voluntarily  accepted  the  money.  There  can  be no quarrel  with  that  proposition  but  where  the  recovery  of  the  money  coupled  with  other  circumstances  leads  to  the  conclusion  that  the  accused  received gratification from some person the  court would certainly be entitled to draw the  presumption  under  Section  4(1)  of  the  Prevention  of  Corruption  Act.  In  our  view  both  the  decisions  are  of  no  avail  to  the  appellant  and  as  already  observed  by  us  conclusions  of  fact  must  be  drawn  on  the  facts of each case and not on the facts of  other cases.”

35. In this context it would be germane to understand  

what has been stated in  M. Narsinga Rao v. State of  

A.P32.  In the said case, allegations against the accused-  

appellant were that one Satya Prasad, PW1 therein was to  

get  some  amount  from  Andhra  Pradesh  Dairy  

Development  Cooperative  Federation  for  transporting  

milk  to  or  from  the  milk  chilling  centre  at  Luxettipet  

(Adilabad District).  He had approached the appellant for  

taking steps to enable him to get money disbursed.  The  31 (1979) 4 SCC 725 32 (2001) 1 SCC 691

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appellant  demanded  Rs.5000/-  for  sending  the  

recommendation in favour of payment of the amount due  

to PW1.  As the appellant persisted with his demand PW1  

yielded to the same.  But before handing over the money  

to him he lodged a complaint with DSP of Anti-Corruption  

Bureau.   On  the  basis  of  the  said  complaint  all  

arrangements were made for a trap to catch the corrupt  

public servant red-handed.  Thereafter the Court adverted  

how the trap had taken place.  The court took note of the  

fact that PW1 and PW2 made a volteface in the trial court  

and denied having paid any bribery to the appellant and  

also  denied  that  the  appellant  demanded  the  bribe  

amount. The stand of the accused before the trial court  

under Section 313 of CrPC was that one Dr. Krishna Rao  

bore grudge and had orchestrated a false trap against  

him by  employing  PW1 and PW2.   Be  it  stated,  in  his  

deposition  PW1  had  stated  that  he  had  acted  on  the  

behest of one Dr. Krishna Rao.   It was further the stand  

of the accused-appellant that the tainted currency notes  

were forcibly stuffed into his pocket.   The trial court and  

the High Court had disbelieved the defence evidence and  

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found that PW1 and PW2 were won over by the appellant  

and  that  is  why  they  turned  hostile  against  their  own  

version  recorded  by  the  investigating  officer  and  

subsequently by a Magistrate under Section 164 of CrPC.  

The Special Judge ordered the witnesses to be prosecuted  

for  perjury  and the  said  course  suggested by  the  trial  

Judge  found  approval  of  the  High  Court  also.   While  

dealing with the controversy this court took note of the  

fact that the High Court had observed that though there  

was  no  direct  evidence  to  show that  the  accused  had  

demanded and accepted the money, yet the rest of the  

evidence  and  the  circumstances  were  sufficient  to  

establish that the accused had accepted the amount and  

that gave rise to a presumption under Section 20 of the  

Prevention of Corruption Act that he accepted the same  

as illegal gratification, particularly so, when the defence  

theory  put  forth  was  not  accepted.   It  was  contended  

before this court that presumption under Section 20 of  

the  Act  can  be  drawn  only  when  the  prosecution  

succeeded in establishing with direct evidence that the  

delinquent  public  servant  had  accepted  or  obtained  

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gratification.  It was further urged that it was not enough  

that some currency notes were handed over to the pubic  

servant to make it acceptance of gratification and it was  

incumbent on the part of the prosecution to further prove  

that what was paid amounted to gratification.   In support  

of the said contention reliance was placed on Sita Ram  

(supra) and Suraj Mal v. State (Delhi Admn.)33.  The  

three-Judge Bench referred to Section 20(1) of the Act,  

the  pronouncements  in  Hawkins  v.  Powells  Tillery  

Steam Coal Co. Ltd34 and Suresh Budharmal Kalani  

v.  State of Maharashtra35 and adverted to  the facts  

and came to hold as follows:-

“From  those  proved  facts  the  court  can  legitimately  draw  a  presumption  that  the  appellant  received  or  accepted  the  said  currency notes on his own volition. Of course,  the said presumption is not an inviolable one,  as the appellant could rebut it either through  cross-examination  of  the  witnesses  cited  against him or by adducing reliable evidence.  But  if  the  appellant  fails  to  disprove  the  presumption the same would stick and then it  can be held by the court that the prosecution  has proved that the appellant received the said  amount.”

33 (1979) 4 SCC 725 34 (1911) 1 KB 988 :  1911 WN 53 35 (1998) 7 SCC 337  

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36. It is apt to note here the three-Judge Bench referred  

to the observations in  Hazari  Lal  (supra)   and opined  

thus:-  

“The aforesaid observation is in consonance  with  the  line  of  approach  which  we  have  adopted  now.   We  may  say  with  great  respect  to  the  learned  Judges  of  the  two- Judge Bench that the legal principle on this  aspect  has  been  correctly  propounded  therein.”

37. In  this  regard Mr.  Jain  has placed reliance on  the  

authority  B.  Jayaraj  (supra).  In  the  said  case  the  

complainant did not support the prosecution version and  

had stated in  his  deposition that  the amount  that  was  

paid by him to the accused was with a request that it may  

be deposited in the bank as fee for renewal of his licence  

for the fair price shop.  The court referred to Section 7 of  

the Act and observed as follows:-  

“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  

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knowing  it  to  be  a  bribe.   The  above  position has been succinctly laid down in  several judgment of this Court.  By way  of illustration reference may be made to  the decision in  C.M. Sharma v. State of  A.P.36 and C.M. Girish Babu v. C.B.I.37”

After so observing, the court proceeded to state thus:-  

“In  the  present  case,  the  complainant  did  not  support  the  prosecution  case  insofar  as  demand  by  the  accused  is  concerned.   The  prosecution  has  not  examined any other witness, present at  the time when the money was allegedly  handed  over  to  the  accused  by  the  complainant, to prove that the same was  pursuant  to  any  demand  made  by  the  accused.  When the complainant himself  has disowned what he had stated in the  initial complaint (exbt. P-11) before LW- 9,  and  there  is  no  other  evidence  to  prove  that  the  accused  had made any  demand,  the  evidence  of  PW-1  and  contents of Exbt. P-11 cannot be relied  upon to come to the conclusion that the  above  material  furnishes  proof  of  the  demand allegedly made by the accused.  We are, therefore, inclined to hold that  the  Ld.  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  

36 (2010) 15 SCC 1 37 (2009) 3 SCC 779

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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  of  pecuniary  advantage  cannot  be  held  to  be  established.”            

38. The  said  principle  has  been  followed  in  M.R.  

Purushotham  v.  State  of  Karnataka38.   On  an  

attentive and cautious reading of the aforesaid decisions  

it is noticeable that the court disbelieved the story of the  

prosecution as no other evidence was brought on record.  

In  N. Narsinga Rao case  the accused was charged for  

the  offences  punishable  under  Sections  7  read  with  

Section 13(1)(d) & (2)  of the Act.  The court, as we have  

stated earlier, had referred to section 20(1) of the Act and  

opined  that  from  the  proven  facts  the  court  can  

legitimately  draw  a  presumption  that  the  delinquent  

officer had received and accepted money.  As we notice,  

the  authorities  in  B.  Jayaraj  (supra)  and  M.R.  

Purushotam (supra) do not lay down as a proposition of  

38 2014 (11) SCALE 467  

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law that when the complainant turns hostile and does not  

support  the  case  of  the  prosecution,  the  prosecution  

cannot  prove  its  case  otherwise  and  the  court  cannot  

legitimately  draw the presumption under  Section 20 of  

the Act.  Therefore the proposition, though industriously,  

presented  by  Mr.  Jain  that  when  Baj  Singh,  PW5,  the  

complainant,  had turned hostile  the  whole  case  of  the  

prosecution  would  collapse  is  not  acceptable  and  

accordingly hereby rejected.  

39. Presently,  we shall refer to the  evidence of PW6, a  

clerk in the office of Tehsildar, Rajpura.  He has deposed  

that on 25.1.1995, on the day of the raid, he joined the  

police party headed by Narinder Pal Kaushal, DSP, on the  

instruction of Tehsildar.  He was introduced to Baj Singh,  

the complainant and Jagdish Verma, a shadow witness.  

Thereafter,  the  complainant  and  the  shadow  witness,  

Jagdish  Verma,  were  sent  to  the  octroi  post  and  he  

stopped at some distance along with Narinder Pal Kaushal  

who was waiting for signal and on receiving signal they  

went inside the octroi post.  As per his testimony Narinder  

Pal Kaushal introduced himself as DSP and thereafter a  

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glass of water was procured and sodium was added to it.  

Both the hands of the accused were dipped in the glass of  

water  and  the  water  turned  pink.  On  search  of  the  

accused Rs.500/-  in  the denomination of  Rs.100/-  were  

recovered.   The  numbers  tallied  with  the  numbers  

mentioned in the memo, Ex. PE.  The notes were taken  

into possession vide Ex. PH.  As is manifest that the said  

witness  has  supported  the  story  of  the  prosecution  in  

toto.  The submission of Mr. Jain is that he is merely a  

witness to recovery and solely on the basis of recovery no  

conviction can be recorded.    There can be no quarrel  

over the proposition that on the basis of mere recovery  

an  accused  cannot  be  found  guilty.    It  is  the  settled  

principle of law that mere recovery of the tainted money  

is  not  sufficient  to  record  a  conviction  unless  there  is  

evidence that bribe had been demanded or money was  

paid voluntarily as bribe.   In the absence of any evidence  

of  demand  and  acceptance  of  the  amount  as  illegal  

gratification,  recovery  would  not  alone be a  ground to  

convict  the  accused.   This  has  been  so  held  in  T.  

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Subramanian  v.  The  State  of  Tamil  Nadu39,  

Madhukar  Bhaskarrao  Joshi  v.  State  of  

Maharashtra40, Raj Rajendra Singh Seth v. State of   

Jharkhand  and  Anr.41,  State  of  Maharashtra  v.   

Dnyaneshwar Laxman Rao Wankhede42, C.M. Girish  

Babu v. C.B.I., Cochin43, K. S. Panduranga v. State  

of Karnataka44 and Satvir Singh v. State of Delhi45.  

The fact remains that PW6 has supported the recovery in  

entirety.  He has stood firm and remained unshaken in  

the cross-examination and nothing has been elicited to  

dislodge  his  testimony.  His  evidence  has  to  be  

appreciated regard being had to what has been deposed  

by Jagdish Verma, PW7.  In examination-in-chief he has  

deposed that he had met the  DSP, Narinder Pal Kaushal  

who  had  introduced him to Sher Singh, PW6.  He has  

further stated that he and PW5, Baj Singh, went inside the  

octroi post where Vinod Kumar demanded bribe from Baj  

Singh whereupon Baj Singh gave Rs.500/- to him, and at  

39 AIR 2006 SC 836  40 (2000) 8  SCC 571 41 AIR 2008 SC 3217 42 (2009) 15 SCC 200 43 AIR 2009 SC 2011 44 (2012) 3 SCC 721 45 (2014) 13 SCC 143

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that juncture, he gave the signal to the vigilance party to  

come inside where after and they came and apprehended  

the accused.  Apart from stating about the demand and  

acceptance  he  had  also  stated  that  the  hands  of  the  

accused were dipped in that water and the colour of the  

water  had turned light  pink.   It  was transferred into  a  

quarter  bottle  and  was  sealed  and  was  taken  into  

possession  vide  recovery  memo  Ex.PG  which  was  

attested by him and Baj Singh.  The amount of Rs.500/-  

was  recovered  from  right  side  pant   pocket  of  the  

accused.  After making the arrangement for the pant of  

the  accused,  the  right  side  pocket  of  the  pant  of  the  

accused was dipped in the mixture of water and sodium  

and its colour turned light pink.  It was also transferred  

into a quarter bottle which was duly sealed and was taken  

into possession vide recovery memo Ex.PJ.  The pant was  

also  taken  into  possession  vide  recovery  memo  Ex.PJ.  

The notes  recovered from the accused were compared  

with  the  numbers  mentioned  in  the  memo  and  those  

tallied.   The  notes  were  taken  into  possession  vide  

recovery memo Ex.PF.  A sum of Rs.310/- was recovered  

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from the further search of the accused which was taken  

into possession vide recovery memo Ex.PK.  Thus, from  

the aforesaid testimony it is absolutely clear that he has  

supported in entirety about the demand, acceptance and  

recovery of  money.   It  is  necessary,  though painful,  to  

note that PW7 was examined-in-chief on 30.9.1999 and  

was  cross-examined  on 25.5.2001,  almost  after  1  year  

and 8 months.  The delay in said cross-examination, as  

we  have  stated  earlier  had  given  enough  time  for  

prevarication due to many a reason.   A fair trial is to be  

fair both to the defence and the prosecution as well as to  

the victim.  An offence registered under the Prevention of  

Corruption Act is to be tried with all seriousness.  We fail  

to  appreciate how the learned trial  Judge could exhibit  

such  laxity  in  granting  so  much  time  for  cross-

examination in a case of this nature.  It would have been  

absolutely  appropriate  on  the  part  of  the  learned  trial  

Judge to finish the cross-examination on the day the said  

witness  was  examined.   As  is  evident,  for  no  reason  

whatsoever  it  was  deferred  and  the  cross-examination  

took place after 20 months.  The witness had all the time  

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in the world to be gained over.  We have already opined  

that  he  was  declared  hostile  and  re-examined.   It  is  

settled in law that the testimony of a hostile witness can  

be relied upon by the prosecution as well as the defence.  

In  re-examination by the public  prosecutor this witness  

has accepted about the correctness of his statement in  

the court on 13.9.1999.  He has also accepted that he  

had not made any complaint to the Presiding Officer of  

the Court  in  writing or  verbally  that  the Inspector  was  

threatening him to make a false statement in the Court.  

It has also been accepted by him that he had given the  

statement  in  the  Court  on  account  of  fear  of  false  

implication  by  the  Inspector.   He  has  agreed  to  have  

signed his statement dated 13.9.99 after going through  

and admitting it  to be correct.   It  has come in the re-

examination  that  he  had  not  stated  in  his  statement  

dated 13.9.99 in the Court that recovery of tainted money  

was not effected in his presence from the accused or that  

he had been told by the Inspector that amount has been  

recovered from the accused.  He had also not stated in  

his said statement that the accused and witnesses were  

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taken to the Tehsil and it was there that he had signed all  

the memos.

40. Reading  the  evidence  in  entirety,  his  evidence  

cannot be brushed aside.  The delay in cross-examination  

has resulted in his pre-varication from the examination-in-

chief.   But, a significant one, his examination-in-chief and  

the  re-examination  impels  us  to  accept  the  testimony  

that he had gone into the octroi post and had witnessed  

about  the  demand  and  acceptance  of  money  by  the  

accused.   In his cross-examination he has stated that he  

had not gone with Baj Singh to the vigilance department  

at any time and no recovery was made in his presence.  

The said part of the testimony, in our considered view,  

does not commend acceptance in the backdrop of entire  

evidence in examination-in-chief and the re-examination.  

The evidence of  PW6 and PW7 have got  corroboration  

from PW8.  He in all material particulars has stated about  

the  recovery  and  proven  the  necessary  documents  

pertaining  to  the  test  carried  with  phenolphthalein  

powder.   The  fact  remains  that  the  appellant’s  pocket  

contained phenolphthalein smeared currency notes when  

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he was searched.  It is apt to take note of the fact that  

the currency notes that have been recovered from the  

right side of the pant pocket were actually prepared by  

PW8  by  smearing  them  with  phenolphthalein  powder.  

The appellant was caught red-handed with those currency  

notes.   In  is  statement  recorded under  Section  313 of  

CrPC he has taken the plea that he is innocent and has  

been falsely implicated due to animosity.  No explanation  

has been given as regards the recovery.   Therefore, from  

the above facts, legitimately a presumption can be drawn  

that the accused-appellant had received or accepted the  

said currency notes on his own volition.  The factum of  

presumption and the testimony of PW6 and 7 go a long  

way to show that the prosecution has been able to prove  

demand, acceptance and recovery of the amount. Hence,  

we are inclined to hold that the learned trial Judge and  

the  High  Court  have  appositely  concluded  that  the  

charges  leveled  against  the  accused  have  duly  been  

proven by the prosecution.  It is not a case that there is  

no  other  evidence  barring  the  evidence  of  the  

complainant.  On  the  contrary  there  are  adequate  

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circumstances  which  establish  the  ingredients  of  the  

offences in respect of which he was charged.    

41. Before parting with the case we are constrained to  

reiterate what we have said in the beginning.  We have  

expressed our agony and anguish the manner in which  

trials in respect of serious offences relating to corruption  

are being conducted by the trial  courts.   Adjournments  

are sought  on the drop of  a  hat  by the counsel,  even  

though  the  witness  is  present  in  court,  contrary  to  all  

principles  of  holding  a  trial.   That  apart,  after  the  

examination-in-chief of a witness is over, adjournment is  

sought for cross-examination and the disquieting feature  

is  that  the  trial  courts  grant  time.   The  law  requires  

special reasons to be recorded for grant of time but the  

same is not taken note of.  As has been noticed earlier, in  

the instant case the cross-examination has taken place  

after  a  year  and  8  months  allowing  ample  time  to  

pressurize the witness and to gain over him by adopting  

all kinds of tactics.  There is no cavil over the proposition  

that there has to be a fair and proper trial but the duty of  

the court while conducting the trial to be guided by the  

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mandate of the law, the conceptual fairness and above all  

bearing in mind its sacrosanct duty to arrive at the truth  

on the  basis  of  the material  brought  on record.   If  an  

accused for his benefit takes the trial on the path of total  

mockery, it  cannot be countenanced.   The Court has a  

sacred duty to see that the trial is conducted as per law.  

If  adjournments  are  granted  in  this  manner  it  would  

tantamount to violation of rule of law and eventually turn  

such  trials  to  a  farce.   It  is  legally  impermissible  and  

jurisprudentially  abominable.   The  trial  courts  are  

expected in law to follow the command of the procedure  

relating to trial and not yield to the request of the counsel  

to grant adjournment for non-acceptable reasons.  In fact,  

it  is  not  all  appreciable  to  call  a  witness  for  cross-

examination  after  such  a  long  span  of  time.   It  is  

imperative if the examination-in-chief is over, the cross-

examination should be completed on the same day.  If  

the examination of a witness continues till late hours the  

trial  can  be  adjourned  to  the  next  day  for  cross-

examination.   It  is  inconceivable  in  law that  the cross-

examination should be deferred for such a long time.   It  

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is anathema to the concept of proper and fair trial.  The  

duty of the court is to see that not only the interest of the  

accused as per law is protected but also the societal and  

collective interest is  safe-guarded.    It  is  distressing to  

note that despite series of judgments of this Court, the  

habit  of  granting  adjournment,  really  an  ailment,  

continues.   How  long  shall  we  say,  “Awake!  Arise!”.  

There is  a  constant  discomfort.   Therefore,  we think it  

appropriate that the copies of the judgment be sent to  

the  learned  Chief  Justices  of  all  the  High  Courts  for  

circulating the same among the learned trial Judges with  

a command to follow the principles relating to trial in a  

requisite manner and not to defer the cross-examination  

of  a  witness  at  their  pleasure  or  at  the  leisure  of  the  

defence  counsel,  for  it  eventually  makes  the  trial  an  

apology for trial and compels the whole society to suffer  

chicanery.  Let it be remembered that law cannot allowed  

to be lonely; a destitute.  

42. In the ultimate analysis, we perceive no merit in the  

appeal and consequently the same stands dismissed.  As  

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the appellant is on bail, his bail bonds are cancelled.  He  

be taken into custody forthwith to suffer the sentence.  

........................................J. [DIPAK MISRA]

........................................J.                  [ROHINTON FALI NARIMAN] NEW DELHI JANUARY 21, 2015.

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