Malik Sharief-Ud-Din, J.
(1) Shri H. P. Bagchi, Additional Sessions Judge in his capacity as Special Judge, Delhi, tried the respondent Khem Chand, then serving as Sub-Inspector in the Police Department, under section 5(2) read with section 5(l)(d) of Prevention of Corruption Act and Section 161 Indian Penal Code . By a judgment dated 30th October 1976, he dismissed the prosecution case and acquitted the accused of the charge.
(2) Feeling aggrieved of this order, Delhi Administration has filed this acquittal appeal. The details about the prosecution case are given in Ext. Public Witness l/A, statement made by on: Pishori Lal Public Witness I before Shri Krishan Gopal Public Witness 9, Inspector Anti Corruption Branch. In this statement he said that since 9;h August 1974 he along with one Baljit Singh Khatri and his younger brother Sukhbir Singh Khatri reside in quarter No. F-123. Dda Flats, New Ranjit Nagar, Delhi, that this quarter, in fact, is allotted to one Dina Nath and he took it on rent from Din a Nath through Balbir Singh a driver in Dtc that they pay a rent of Rs. 75 per month jointly to. the said Dina Nath. Further said that on 22nd August 1975 the said Balbir Singh driver and his sons accompanied by some more persons entered their quarter, assaulted them and threw out of their belongings with a view to compel them to vacate the house. They had sustained injuries and the matter was reported to police station Patel Nagar where a case under section 452 Indian Penal Code was registered and accused was asked to investigate the same. On 28th August 1978 the relatives of Balbir Singh driver again came to their house and called out Baljit Singh Khatri and threatened him to withdraw the case whereupon Baljit Singh also lodged a report at police station Patel Nagar on the same night but. no action had been taken in respect thereof, that on 19th September 1979 between 7 and 7.30 Pm the complainant Pishori Lal together with Sukhbir Singh Khatri had gone to the police station Patel Nagar to enquire about the progress of their case as also the report lodged by Baljit Singh. While Sukhbir Singh remained out, he went inside the police station and met S. I , Khem Chand accused. On enquiry about the case he was told by the accused that there was no force in their cases and he was trying to get the same approved for sending the same to the court. He is further stated to have told him that in case he greases his palm he would champion his cause and get the case filed in court, and would also ensure that action is taken on the report of Baljit Singh. On further enquiry he was told by the accused Khem Chand to arrange for a sum of Rs.100 and wine and remain at his residence on the next evening i.e. 20th September where the accused will visit to collect it.
(3) By virtue of Ext. Public Witness 1/B Krishan Gopal Public Witness 9, Inspector. made a record of the fact that on 20th September 1975, at about 12.15 Pm the complainant came to his office and made the statement, Ext. Public Witness I[A, which after it was read over and explained to the complainant was signed by Public Witness I and was also attested by him. Sukhbir Singh, who accompanied the complainant, did not make any statement in writing though he supported the complainant. Public Witness 9 then goes on to state that these two persons were made to sit in the office and the witnesses were sent for. At about 3.30 Pm Jagbir Singh Goel Public Witness 7 and Ved Parkash Public Witness 2 came to the office and in their presence the statement was read over to the complainant who admitted it to be correct. The complainant then produced a hundred rupee rots bearing No. AA/21 024752. Thereafter ail of them were told about the significance of the application of phenol phthalein powder to the currency note and a demonstration was also given as to how the hands and clothes of a person, after getting into contact with phenol phthalein powder. If washed in sodium carbonate solution would convert the solution into pink colour; that the note was accordingly dusted with powder. Shri Goel Public Witness 7 was made to touch it and he was made to wa.h his hands in sodium carbonate, solution to demonstrate the conversion of solution into pink. colour. Thereafter, the note was again dusted with powder and was returned to the complainant for offering to the accused as bribe. I he complainant was also told that at the time of offering this bribe he should talk to the accused in the manner as to make it possible for the witnesses to understand that the note, in fact, is offered as a bribe. The witnesses were also asked to hear and see what transpires between the parties. The witnesses were informed about the details of the raid. Before proceeding to the place of occurrence, Public Witness 7 Jagbir Singh Goel and Public Witness 7 Krishan Gopal washed their bands with soap.
(4) At about 4.45 Pm raiding party along with Inspector Khairati Ram, Head Constable Mohinder Singh, Jaspal Constable No. 4994 and Hari Ram driver left for the spot where the bribe was to be offered. The raiding party reached the quarter No. 123, Dda Flats, New Ranjit Nagar at 6 PM. The complainant together with Public Witness 7 Jagbir Singh Goel and Sukhbir Singh Public Witness 3 were then left in the room to watch the transaction whereas Ved Parkash Public Witness 2 was positioned in the balcony where a window opens in the room. It is said that from this position which was covered with a curtain it was possible for him to see and hear everything that took place inside the room. All other persons accompanying the deriding party took position in the kitchen. It is also said that kitchen is separated from the main room by a full curtain from behind which it was possible to peep in the room.
(5) It is said that at 8.10 P.M. the accused Khem Chand Sub-inspector arrives at the flat and enters the room where the complainant together with Jagbir Singh and Sukhbir Singh was sitting. The accused took his place on sofa beside the complainant and started conversing. The complainant offered whisky to the accused but the accused declined it on the ground that he is to go on duty. The complainant then took out a a hundred rupee note from his purse and gave it to the accused telling him ''Yeh to Aap Ke Paise Jis Kam Ke Liye Aap Ne Mange The'. The accused took the amount and put it in the left front pocket of the shirt. Public Witness 7 Jasbir Singh Goel gave the agreed signal and the raiding party entered the room. The Inspector Anti-Corruption Branch discloses his identity, challenges the accused Khem Chand about having received bribe from Pishori l.al at which Khem Chand accused is said to have immediately taken out the tainted currency note from the front pocket of his shirt and thrown it on the floor in front of his feet. He is said to have simultaneously uttered 'Main Mara Jaon Ga Mujhe Maaf Kardiya Jaye'. The currency note was then lifted from the floor. Its number was tallied with the number mentioned in raid report and was taken into possession by memo which was signed by the witnesses. Khem Chand accused was then informed about the fact that the note had been treated with phenol phthalein powder. The right hand of the accused was washed in sodium carbonate solution and the solution turned pink. Similarly his shirt pocket was also washed in water mixed with sodium carbonate and this also turned pink. The solution was preserved in phials and duly sealed and secured. Memos were prepared. The shirt of the accused was also seized and the labels of the bottles were got signed by the witnesses.
(6) The investigating officer then recorded the statement of the witnesses, sent the report through Mohinder Singh, Head Constable to the Duty Officer Police Station Anti-Corruption with a request to register the case and it was in pursuance of this that Fir 8/B dated 29th September 1975 was registered at 11 P.M. with police station Anti-Corruption Delhi.
(7) Before we set out to examine the judgment of the learned Special Judge and the evidence a reference may be made to the statement of the accused recorded under section 313 Criminal Procedure Code . The accused admitted that the report of Baljit Singh dated 28th August 1975 was given to him for enquiry and he had submitted his enquiry report on 2-9-75 which was also endorsed by the Sho on 4-9-75; that it is wrong to say that he had not taken any action in the matter. Admits that on 19-9-75 Pishori Lal along with Sukhbir Singh came to him in the police station to enquire about their cases but after he told them that he was no more seized of their cases they went away. He denied having told Pishori Lal that he will be visiting his house between 7/8 Pm on 20-9-75 for receiving-illegal gratification. He has further said that on the day of occurrence he was standing outside police station Patel Nagar when Baljit Singh came and asked him to go to the house of Pishori Lal; that earlier on the same day Sho had told him that Pishori Lal was in possession of some information regarding smuggling of opium and in case Pishori Lal asks him to organise a raid he should do so in his absence; that on being informed by Baljit Singh he felt Pishori Lal might be wanting to give some information and that is why be went to Pishori Lal's house; that on reaching the house of Pishori Lal he found Sukhbir Singh sitting with him. He has denied the presence of Jagbir Singh Goel in the room. That on enquiry from Pishori Lal as to why he has been called, Pishori Lal asked him to have some drink which he refused ana thereupon Pishori Lal offered him a hundred rupee currency note. On enquiry as to why it was being offered he was told that since he did not drink he may keep hundred rupee note instead; that when he refused to accept it Pishori Lal forced this hundred rupee note into his pocket which he took out with his right hand and threw on the ground; that thereupon Pishori La! shouted 'Baljit Singh' on hearing which Inspector entered the room and that Jagbir Singh Goel came later. The fact that the currency note was thrown by him on the ground only after he was challenged by the Inspector Krishan Gopal has been denied. He has further said that investigation of the ease under section 452 regarding the occurrence dated 22-8-75 was with Head Constable Hari Ram since 23rd August 1975. In reply to the question as to why Public Witness s were deposing against him he has said that Pishori Lal has deposed against him because he had arrested his friend Krishan Lal on 16-9-75 in a case under section 506 Indian Penal Code lodged by his wife, that Pishori Lal was entertaining false belief that he had done nothing to help him in the two cases they had lodged and in this connection he had made a complaint to I.G. Police on 16-9-75, that Pishori Lal as such was inimical towards him. About Jagbir Singh Goel he said that this witness is under clouds in connection with a departmental inquiry which is pending against him and that he has been freely mixing with the Anti-Corruption Organisation in connection with an embezzlement case of the Poor House under the Directorate of Social Welfare where he was posted as Superintendent Children Home. About Inspector Krishan Gopal he has said that while he was posted as Reader to Dsp at Lajpat Nagar Police Station, Krishan Gopal used to come for making use of official telephone which under instructions he did not permit him and for that reason Inspector Krishan Gopal was unhappy with him and deliberately avoided to collect evidence which existed in his favor.
(8) We may at this stage make reference to the evidence tendered by different witnesses in the case. Public Witness I Pishori Lal, after narrating events that took place prior to raid, has said that. after he reported the matter to Anti-Corruption Branch and after the raid was arranged in the presence of Punch witness the raiding party came to his house. He together with Jagbir Singh Goel Public Witness 7 and Sukhbir Singh Public Witness 3 were made to sit in the same room, that Inspector Krishan Gopal and other members of the raiding party took positions in the kitchen and Ved Parkash together with one more official was positioned at the balcony, that at 9.10 Pm the accused arrived in the room and took his seat beside him on sofa. He then asked the accused that his challan should be conducted in such a manner that it should not return from the court, that he also offered whisky to the accused which was lying on the table, that he then took out the tainted currency note and asked him to take it as reward for the job he had undertaken to do, that the accused took the currency note in his right hand and put it in the left pocket of his shirt and told him that since he has to go on duty he would not like to drink and that he should not worry about the the work which would be done, that in his presence Inspector disclosing identity challenged the accused for having accepted bribe whereupon the accused took out the tainted currency note from his pocket and threw it on the ground which was then lifted by the Anti-Corruption Police and taken into possession by memo Public Witness I/C. He further says that the right hand of the accused together with his pocket was washed in sodium carbonate solution and the colour of the water turned pink. It was sealed in bottles which were duly secured, seized and labelled and he signed all these labels and documents. He does not remember if on 16-9-75 he had made a complaint to I.G. against the accused, says that it is incorrect to suggest that Krishan Lal was arrested by the accused under section 506 Indian Penal Code on 16-9-75; admits to have been arrested under Bombay Police Act by Sho Patel Nagar after the present incident. Further says that he wag challaned under section 107, 151 Cr P. C. along with Balbir Singh, Baljit Singh etc. after this incident. Also admits that he had been challaned under section 3/4 of Delhi Gambling Act by Police Station defense Colony about 5/6 years back; says that he was given to understand by the accused that he was dealing with both his cases. He has repelled the suggestion that he sent Baljit Singh to call the accused on the day of occurrence under the pretext of passing on some -Information about opium smuggling. Say; that in fact. Baljit Singh was not in the house on 20-9-75 till late. The suggestion that he forcibly put the tainted note in the pocket of the accused and the accused took it out with his right hand and threw it, has also been repelled. He denied having any enmity with the accused.
(9) Public Witness 2 Ved Parkash has admitted to have gone to the Anti-Corruption Police at about 3.30 Pm on 20-9-75 along with Jagbir Singh Goel Public Witness 7. He admits that the statement of the complaint, Ext. Public Witness I/A was read over and after admitting its corrections the complainant produced a hundred rupee currency note. That Inspector Krishan Gopal after giving demonstration about the significance of dusting currency note with phenol phthalein powder and after giving further necessary instructions in respect of raid that was organized took them to the house of the complainant. He has said that while Jagbir Singh Goel and complainant were made to sit inside the room he was made to stand by the side of window outside the room. The other members of the raiding party positioned themselves in the adjoining room; that when the accused did not arrive at the appointed time, the complainant asked Baljit Singh to call the accused from police station Patel Nagar and at about 8.15 the accused came along to the residence of the complainant; that he saw the accused entering the room but was not able to see and hear what transpired between them inside the room; that he came to the room only after Krishan Gopal Inspector had entered the room and apprehended the accused. He saw the currency note of hundred rupee lying on ground in front of the accused. He admits that the note was tallied and it was the same note which was earlier dusted with phenol Phthalcin powder. In respect of the washing of right hand and shirt pocket of the accused' and the result thereof he has fully supported the prosecution story. He was declared hostile and the record would show that on material points he had supported the prosecution case when his statement Ex. Public Witness 2/A was recorded u/s 161 Criminal Procedure Code . For instance, in his statement under section 161 he had not said that Baljit Singh was sent to call the accused. He had further stated in his statement under section 161 that Sukhbir Singh Public Witness /3 was also sitting in the same room with the complainant. He had also said in Ex. Public Witness 2/A that he had heard the complainant saying to accused that the amount was being paid in the light of demand made by him earlier and that the accused took the note in his right hand and deposited it in the pocket of his shirt and it was thrown by the accused on the ground only after he was challenged by the Inspector.
(10) Public Witness 3 Sukhbir Singh has deposed that en 19th September 1975 he had accompanied the complainant to the police station where he had met the accused and that the accused told Pishori Lal that he was no more seized of his cases, admits to have gone with the complainant to .Anti-corruption department but says that he did not subscribe to the statement made by the complainant, that he was made to sit outside when the complainant made the statement and thereafter he was summoned to the room only when demonstration proceedings were held. Says that he, the complainant and Jagbir Singh were made to sit in the room where the occurrence took place while the other members of the raiding party were made to sit in the adjoining room. He further says that at about 8.30 p.m. the accused came and sat beside the complainant on the sofa but after exchanging greetings the accused enquired from the com plainant why he has been summoned. Thereupon the complainant offered whisky but on turning down the offer the complainant offered a hundred rupee note. That on an enquiry by the accused, complainant told him that since he has not taken whisky he may keep hundred rupee note in lieu of it. Further says that the complainant forced the currency note in the pocket of the accused but the accused immediately took it out with his right hand and threw it on the ground. This witness was also declared hostile and was confronted with his statement under section 161, Ext. Public Witness 3/A. In his statement under section 161 he had admitted that Pishori Lal informed him that the accused had demanded bribe of Rs. 100. He had also said that accused had received the note with his right hand and put it in his pocket and that on the arrival of the Inspector Anti-corruption the accused took the note out from his pocket and threw it on the ground.
(11) Public Witness 4, Chander Bhan, Asi, Vigilance is a formal witness and we need not reproduce his testimony. Public Witness 5 Kanchan Lal has made a statement in respect of certain facts which are not disputed. Public Witness 6, Mohinder Singh, has testified in respect of service career of the accused. Public Witness 7 Jagbir Singh Goel, who is a Punch, witness in this case has supported the prosecution case in all its details. He has, however, said that after the complainant asked the accused to accept Rs. 100 as desired, the accused after showing some reluctance accepted the same and put it in his shirt's pocket on which he signalled to the raiding party and that on seeing the raiding party the accused threw the currency note on the ground and became unconscious; that after regaining consciousness the accused shouted that he was being falsely implicated. In respect of the washing of the hand and shirt of the accused he has fully supported the prosecution case. This witness has further admitted that before he was made Superintendent of the Children Home some embezzlement had taken place in the department and in that connection he had been to the Vigilance Department with some records. He, however, says that the embezzlement case is pending against his predecessor and the staff. Admits that he was a member of the Purchase Committee and that in connection with supply of poor quality of grams to the Poor House an Explanationn was called from him but he does not know whether his Explanationn was accepted or whether investigation was still pending. He has, however, said that it would be wrong to suggest that he was deposing under the fear that action in that regard might be taken against him.
(12) Public Witness 8 S. I. Gyan Chand has recorded the formal Fir Ext. Public Witness 8/B at the police station Anti-corruption. Public Witness 9 Inspector Krishan Gopal has fully corroborated the prosecution case. The suggestion that he was not happy with the accused as the accused had not permitted him to use telephone of Dsp was characterised by him as incorrect. He admits that he did not examine case Fir under section 452 registered at the instance of the complainant and he cannot say who was investigating that case on 20-9-75 nor is he aware of the fact that the investigation of that case had been completed on 15-9-75. He, however, says that the challan of that case was finally sent to the prosecution branch on 25-9-75 after removing the objections.
(13) In this case the accused has also examined some witnesses in defense. Dwi Mohinder Singh has proved the fact that the accused was posted as Reader to Dsp Lajpat Nagar from 3-6-72 to 30-6-75 and was promoted on 1-7-75. DW2 Shiv Narain has deposed about certain facts which are not material for the disposal of this case. Same is the case with DW3 Brabm Singh.
(14) DW4 Garib Ram has deposed that during his tenure as Sho Patel Nagar Police Station the accused served under him to his entire satisfaction. That on 20th September 1975 Pishori Lal complainant volunteered to give him information regarding smuggling activities. He had told him to give this information to any officer on night emergency duty. He had further told him that on 20-9-75 Khem Chand S.I. will be on night emergency duty. Further says that on that very morning he had apprised all his officers about it. He has further said that on the day of occurrence no case of the complainant was under investigation and in fact the enquiry had already been completed, In reply to the question as to why he did not inform the Inspector Krishna Gopal of the Anti Corruption Branch that the accused had gone to the house of Pishori Lal complainant to seek some information, he says that he did not consider it necessary and that he had instructed his officers to receive information in the police station itself.
(15) DW5 Dharam Chand says that in respect ofthe first complaint dated 22-8-75 of Pishori Lal, case under section 452 Ipc was entrusted to Head Constable Hart Ram on 30-8-75 and it was not with the accused thereafter; that only two-case diaries dated 22-S-75 and 23-8-75 were written by the accused and the final case diary was issued by Sho on 15-9-75 and these facts were verified by Inspector Krishan Gopal on 20-9-75.
(16) DW6 Chander Bhan of the Anti Corruption Branch has deposed that on 28-11-75 a complaint was received from Deputy Secretary Vigilance against the officers of poor House regarding mal-practices and after investigation the final report was sent to the Secretary Vigilance on 16-12-76 and that this complaint has been filed.
(17) DW7 Shri D. C. Bhatnagar, Assistant Vigilance Department has stated that in November 1975 a complaint against J. S. Goel, Superintendent Poor House for purchase of poor quality of grams was received which was forwarded to the Ant? Corruption S. P. for necessary action.
(18) We have heard the learned counsel for the parties at great length and we have given our carefully consideration to the facts, circumstances and evidence of this case. At this stage wo may make a reference to the reasons that weighed with the learned Special Judge in acquitting the accused. The learned Special Judge has observed that in respect of demand of bribe by Khem Chand accused divergent versions have been given by Pishori Lal Public Witness I and Sukhbir Singh Public Witness 3. He has said that even though Sukhbir Singh had gone to the police station with the complainant on 19-4-75 he has not subscribed to the assertion of the complainant that demand for bribe was made and that to keep Sukhbir Singh out of way the complainant has gone on record to state that Sukhbir Singh Public Witness 3 had not gone into the police station with him. The learned Special Judge further observed that these facts coupled with the testimony of Public Witness 5 Kanchan Lal that investigation had already been completed in the case show that there was neither any occasion nor any scope for Khem Chand accused to demand bribe. The learned Special Judge seems to be labouring under the impression that the prosecution was under an obligation to prove that the accused at the time of demand of bribe was in a position to do favor or disfavor. On the basis of this plain logic the learned Special Judge was led into a belief that since the accused on the date was not seized of the case it would not be right to hold that he had demanded bribe. He further says that the complainant's testimony in respect of demand of bribe is not corroborated.
(19) From our point of view, the learned Judge has fallen into an error because of his wrong approach to the case. In fact his judgment would show that he has examined the case by dividing it into two parts of demand and acceptance and after finding that there was no occasion for demanding bribe and the demand part of the case was not corroborated he went on to dispose of the acceptance part of bribe by attaching great significance to the minor discrepancies appearing in the testimony of witnesses in-respect of certain events that followed at the time of raid. In brushing aside the acceptance part of the prosecution case, the learned Special Judge also thought that Public Witness 7 Jagbir Singh Goel could not be believed as the relevant time he was under cloud. This is perhaps said to convey an impression that PW7 has deposed against the accused at the instance of Anti Corruption Police.
(20) In a case like this it is necessary to take an over-all view of the prosecution case and evidence and any attempt to dissect a piece of evidence in isolation is bound to result in miscarriage of justice. Shri D. R. Sethi, learned counsel for the State, invited our attention to the case of Chaturdas Bhagwandas Patel v. The State of Gujarat : 1976CriLJ1180 . The contention of Mr. Sethi is that in a case where a public servant has accepted gratification which was not his legal remuneration, the burden to displace the statutory presumption that the money was received by the accused otherwise than as a motive or reward shifts to the accused and that in the present case there is sufficient evidence on record to indicate that the accused had accepted the bribe from the complainant, Mr. Sethi has further submitted that in a case like this it was wrong to brush aside the prosecution case on the plea that the accused on the day of occurrence was not in a position to do any favor as he was no more seized of the case. The learned counsel for the State has contended that in a case like this it is enough if the public servant who accepts the gratification does so by inducing a belief or by holding out that he would render
'Where the prosecution had proved that the accused Head Constable had accepted a gratification of rupees 500 which was not his legal remuneration from G, the statutory presumption under section 4(1) was attracted in full forcc and the burden had shifted on to the accused. It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to ove its case. Nevertheless, this burden on the accused is to be discharged by bringing; on record evidence, circumstantial or direct., which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in section 161. To constitute an offence under section 161 it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to giver 'with any other public servant' and the giver gives the gratification under that belief. It is further immaterial if the Public servant receiving the gratification docs not intend to do the official act, favor or forbearance which he holds himself out as capital of doing. When a public servant, being police officer, is charged under section 161, Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the court to consider whether or not the public servant was capable of doing or intended to do any official act of favor or disfavor.'
(21) We think there is full force in the argument of Mr. D.R. Sethi, learned counsel for the State. In fact it is in that view of the matter that we have observed that the learned Special Judge has made a wrong approach in assessing the evidence and in attaching undue importance to the testimony of two hostile witnesses PW2 Ved Prakash and Public Witness 3 Sukhbir Singb. The learned Special Judge is also wrong in discrediting the testimony of Jagbir Singh Goel Public Witness 7 as unreliable on the ground that at the relevant time it was natural for him to keep the Anti Corruption Branch in good humour. The learned Special Judge was also wrong while giving undue importance to the minor discrepancies in the testimony of prosecution witnesses. The examination of this case falls within a very narrow compass inasmuch as most of the facts are admitted. It would be seen that both the reports of the complainant and Balbir Singh dated 22-8-75 and 28-8-75 were received in police station Punjabi Bagh and were given to Khem Chand accused for investigation. It is also admitted that Punch witnesses Ved Prakash Public Witness 2 and Jagbir Singh Goel, Public Witness 7 were summoned by the Anti Corruption Branch on the date of occurrence and that the raid was arranged and demonstration given about the effect of phenol Phathalein powder. This is not disputed by any one of the witnesses and they also admit that the statement of the complainant was read over to the complainant in their presence and it was only after he had admitted it. to be correct that the next steps were taken. Sukhbir Singh Public Witness 3 however says that he did not subscribe to the complainant's story at the Anti-Corruption Office but he was ushered in only after the statement, of Pishori Lal was recorded. It is also the admitted premises of the prosecution case that all the witnesses together with Anti Corruption Police went to the house of the complainant and whereas Sukhbir Singh Public Witness 3, Jagbir Singh Public Witness 7 and Pishori Lal were made to sit in the room, Ved Parkash was made to sit in the balcony to watch the events. It is also admitted by Khem Chand accused that complainant met him in the police station on 19-9-75 though he qualifies it by stating that he had told them that he was not seized of their case. He, however, admits that Sukhbir Public Witness 3 had accompanied Public Witness I Pishori Lal to the police station. It is also. admitted that the accused Khem Chand came to the house of the complainant the appointed time and was arrested there and that. the tainted currency note was recovered from the ground.
(22) Thus the most important and clinching aspect of the case is the presence of the accused at the house of the complainant at the appointed time. In respect of the presence of accused in the house of the complainant we arc faced with two versions, one of the prosecution and the second one of the accused and if the Explanationn of the accused about his presence is not believed, then the prosecution version about it will have to be accepted. We are definitely of the view that the accused's version is not the correct version. It will be seen that this version of the accused was not in existence at any time before, the accused went on trial. For the first time we find the suggestion being made to Public Witness I Pishori Lal that the accused had come there in connection with the collection of information in respect of the smuggling activities of some persons about whom earlier Pishori Lal had promised Garib Ram Sho to render assistance. In fact, this version has, for the first time, come into light at that stage and next at the stage when the statement of the accused under Section 313 was recorded. To substantiate his plea the accused has examined Garib Ram DW4 who was Sho Patel Nagar at the relevant time. We are of the view that he has miserably failed to prove the same. Why should Khem Chand go to the house of Pishori Lal Public Witness I if Garib Ram S.H.O. had specifically said that such information was to be received at the police station itself This assumes further importance in the light of the fact that Khem Chand S.L was on night emergency duty and he could not leave the police station in this manner. If Khem Chand was under instruction to receive such information only at the police station he would never go to the house of the complainant. Moreover, if he had left the police station on an official mission the least he would have done was to make a note in the police daily diary that he was proceeding to a particular destination in connection with the collection of some information regarding smuggling activities of some persons. This we understand is the normal legal manner in which the police officials leave the police stations whenever they go on official missions. These facts alone would go to show the falsity of the stand taken by the accused but we have yet other reasons for dismissing this stand of the accused. We are told by the prosecution witnesses Public Witness 7 Jagbir Singh Goyel that the accused said at the time of raid that he has been falsely implicated. PW2 and Public Witness 3 Ved Parkash and Sukhbir Singh do not tell anything about what the accused said at that time. Their behavior is understandable as both of them have turned hostile. Be that what it is, the accused at the time of raid had not given this Explanationn about his presence at the house of complainant. Garib Ram has gone on record to say that he did not consider it necessary to inform the Anti Corruption Agency' that accused had gone on duty. From all that goes before us we are of the view that the version of the accused is the result of the after thought. If accused really went on a mission to the house of the complainant then Garib Ram would have certainly informed the Anti Corruption Office and his officers about it. Having seen the falsity of the defense version about the presence of accused at the house of the complainant, there is hardly any reason for us to detract from the prosecution version in respect of this aspect of the case.
(23) In respect of the actual acceptance of bribe we find that two of the prosecution witnesses Ved Parkash Public Witness 2 and Sukhbir Singh PW3 have turned hostile but they do not deny the fact that tainted hundred rupee note was lying on the ground in front of the accused when they entered the room. In a case like this it would be natural for the accused whose whole career is at stake to go out wooing the witnesses and there are people who may ready oblige. In view of the. peculiar facts and circumstances of this case it will be seen that these two prosecution witnesses have deliberately gone against the prosecution in respect of certain crucial events. The case of the prosecution is sufficiently proved by Public Witness I Pishori Lal, Public Witness 7 .Jagbir Singh Goel and Public Witness 9 Krishan Gopal. There is nothing to show that Public Witness 7 Jagbir Singh Goel has supported the prosecution ca.se out of his desire to keep the Investigating Agency in good humour. The evidence has disclosed that even if there was something against him it had not by then come to Anti Corruption Branch. The inquiry against him was conducted by Anti Corruption Branch long after this event. The Anti Corruption Branch did not even register a case against him as it was not worth it. We find no sufficient reasons to brush aside the testimony of Jagbir Singh Goel Public Witness 7 on this score. Since Public Witness 7 Jagbir Singh Goel has fully supported the prosecution case the complainant Public Witness I who otherwise could be characterized as an interested witness is sufficiently corroborated. Public Witness I Pishori Lai, Public Witness 7 Jagbir Singh Goel have in unmistakable terms said that the accused accepted the bribe, pocketed it and then threw it on the ground only after he was challenged by Inspector Krishan Gopal. Under these circumstances the hand wash and pocket wash of the accused about which there is absolutely no dispute assumes importance. Sukhbir Singh Public Witness 3's testimony that it was thrusted into the pocket of the accused by the complainant in view of his over-all conduct cannot be believed. Hand-wash and the pocket-wash of the accused coupled with the testimony of complainant and supported by the testimony of Public Witness 7 Jagbir Singh Goel and Krishan Gopal 1.0. would go to show that the accused had accepted bribe.
(24) This brings us to the demand part of the prosecution case. Having satisfied ourselves about the fact that the accused had accepted the bribe the observations of the Supreme Court in the case of Chaturdas Bhagwandas Patel (supra) are very much attracted by this case and the burden that the accused did not receive the amount as bribe immediately shifts to him. The accused has made an attempt to discharge this burden by raising a defense which we have brushed aside as false. After having come to the conclusion that the accused went to the house of the complainant and accepted the bribe, the only logical inference available would be that it was done by him in pursuance of the demand made by him from the complainant earlier on 19th September 1975. The fact that Sukhbir Singh Public Witness 3 had accompanied the complainant Public Witness I to the Anti Corruption Branch also goes to show that he was aware of everything that was taking place. Why should otherwise Sukhbir Singh Public Witness 3 accompany Public Witness I Pishori Lai to Anti Corruption Office The fact that the accused was not in a position to show any favor is of no consequence. Assuming for the sake of arguments that it is of some importance, there is nothing on record on the basis of which it could be said that the complainant and Public Witness 3 Sukhbir Singh on 19th September 1975 knew that the accused was no more seized of the cases. They were placed in a very precarious and serious situation and were under great pressure from the other side who were out to throw them out of the house. Under these circumstances, their effort naturally would be to pursue their cases so that their adversary remains under constant pressure. One cannot forget about the nature of help which the accused had promised. After giving the complainant to understand that his case was weak he undertook to champion his cause and get the cases passed as fit for prosecution and it was in lieu of this favor that the bribe was demanded. From our point of view .it was not right for the learned Special Judge to brush wide the testimony of the complainant Public Witness 1 on the ground that he was having a shady past. One has to bear in mind the fact that the complainant in a case like this is more- or-less a victim of circumstances. Admittedly. he has been prosecuted under section 314 of Delhi Gambling Act 5 or 6 years prior to the occurrence. This event is too remote in time to be made basis for striking out his testimony. His prosecution. as an air-man by Court Martial has been the result of his remaining away from duty. There is no basis to say that he has no ostensible means of livelihood. All he has said is that at that time he was not employed. Krishan Lal who has been arrested under section 506 Indian Penal Code is not proved to be his friend or relation and it is wrong to say that on this basis he was inmical towards the accused. The fact that he made a complaint against the accused on 16-9-75 only shows that he had apprehensions that the accused was looking to the other side. On the basis of these observations we are of the view that this could not be made the basis for disbelieving the complainant, particularly in a case where otherwise the evidence, both direct and circumstantial. sufficiently connects the accused with the commission of the crime. '
(25) The last point argued before us is that the High Court ordinarily should not interfere with the judgment of acquittal on a mere appreciation of evidence. We are, however, of the view that this is a fit case where we must reverse the finding of the learned Special Judge. This is a case in which the only reasonable view to be taken, to our mind, is the one which we arc taking. We find the judgment of the learned Special Judge. to be apparently incorrect and it has resulted in miscarriage of justice. In the present case the approach of the learned Special Judge is basically erroneous and is based on incorrect logic. On a consideration of the entire sequence of events and the evidence adduced in the case, it can be said with certainty that the prosecution has proved its case. We, thereforee, accept this appeal, reverse the finding of learned Special Judge and hold the accused guilty under section 161 Indian Penal Code and Section 5(2) read with section 5(l)(d) Prevention of Corruption Act and convict him accordingly. '
(26) The last point for consideration would be as to how the accused should be dealt with. Mr. Soni, learned counsel for the respondent has submitted that the accused was a Constable and was promoted to the rank of S.T. only two and a half months before the occurrence and that the occurrence has taken' place about 8 years back. He has, thereforee, prayed that the accused may not be sentenced to imprisonment and a lenient view of his conduct may be taken. Section 5(2) of Prevention of Corruption Act has provided for least punishment of one year but this section also gives the Court power to impose a' lesser sentence for special reasons that may be recorded. The accused after putting in a service of more than two and a half decades was promoted as Sub-Inspector about two and a half months prior to the occurrence. Eight years have passed since he came to be prosecuted. By reversing the judgment of the learned Special Judge he will also loose his job Under these special circumstances we feel inclined to take a lenient view. The accused is sentenced to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs. 100 under section 5(2) read with section 5(l)(d) of Prevention of Corruption Act. The accused is also sentenced to undergo rigorous imprisonment for a period of one month under section 161 Indian Penal Code . Both the sentences shall run concurrently. The accused shall forthwith surrender before the Special Judge to undergo the sentence of imprisonment.