S.L. Talati, J.
1 to 10 xx xx xx
XX XX XX XX
11. It may be stated that in a criminal case whether it be under the Prevention of Corruption Act or under the Penal Code, the burden of proving the case beyond reasonable doubt is always on the prosecution, It is true that after it is established that the accused accepted the amount, presumption Under Section 4(1) of the Prevention of Corruption Act would arise. But for the purpose of coming to the conclusion as to whether the accused accepted the amount or not, the totality of the evidence led at the trial is required to be appreciated. The prosecution evidence alone cannot be considered for the purpose of coming to the conclusion as to whether the accused accepted the amount or not. The evidence led by the prosecution, the suggestions made by the defence in cross-examination of the prosecution witnesses, the version given by the defence and the defence witnesses., if any, examined at the trial, every 'thing is required o be considered in its totality and it is to be seen as to whether the total effect of the entire, evidence led before the court is of a nature by which the only conclusion possible was that the accused accepted the amount. If such a conclusion is possible then alone it can be held that the prosecution established the case beyond reasonable doubt. In the first place we may say that all the three prosecution witnesses fully supported the prosecution case. It may here be stated that the complainant at one stage thought that the amount was excessive. He wanted favour from the appellant in the sense that he wanted to know before as to in which area the Inspector was to visit for the purpose of checking. This according to him was necessary for the purpose of getting business of repairing, The offence of bribery can only be completed if the amount is offered and accepted and, therefore, the person offering the bribe aids the offender who accepts the amount. The complainant is, therefore, in the eye of law an accomplice and, therefore, his evidence is required to be corroborated by independent evidence before it could be acted upon. For that purpose in a raid which is carried, the panch is chosen and he is kept present throughout in order that he might see the transaction and hear the talk which might take place at the time of the transaction. Choosing of a person as a panch is a most important aspect in a corruption case, and an independent person unconnected with the prosecution is required to be chosen so that there is guarantee of his reliability and the learned Special Judge, therefore, must feel that the person chosen is a person on whom implicit reliance could be placed. It must always be remembered that the whole prosecution case in a corruption case practically hangs on the evidence of this panch witness, a single person who either destroys the prosecution case or destroys the career of a public servant. It is at times very difficult, almost impossible for a public servant to find out all antecedents of a panch witness and suggest as to why and under what circumstances he is deposing against him. It is, therefore, necessary that a great care should be taken by the investigating agency to choose a proper person whose integrity and whose reliability cannot be doubted. In regard to Mohanbhai (P.W. 2) panch No. 1 it appears that he was chosen as a panch when he was just standing under a pillar near Pan cabin. The place where he was standing was at a distance of about one and half or two miles from his house. That place is at a distance of about half mile from the office of the Police Inspector. Now, therefore, the Police Inspector or his person had travelled a distance of about half mile to find out a suitable person to act as a panch. That person was accidentally found out while he was just standing under a pillar near Pan cabin after taking pan. Curiously, another panch had also come there from a different direction and he was found chitchatting with the first panch. This would show that the two persons were, known to each other and were perhaps friends. It was brought out in evidence that first panch witness cultivates survey No. 130 and a part of that survey number is cultivated by panch No. 2, This fact panch No. 1 was not prepared to admit till copies of panipatraks were shown, to him. He thereafter had to agree that panch No, 2 belonged to his caste. Now, therefore, it clearly appeared that the two panchas belonged to the same caste. So far as agricultural operations were concerned they were . neighbours and they from different directions had come together at one place and were talking and, therefore, they were friends. There was no reason for panch No; l after taking pan to wait under a pillar unless he was waiting for panch No. 2 who was his friend. According to the evidence of panch No. 1 he was going to the office of the Forest Department because he wanted certain plants which he wanted to plant. He admitted that after the raid he did not go to that office, the reason given by him was that he got some letter by post and, therefore, it became not necessary to go to the office of the Forest department and that letter was not produced either before the Police Inspector or before the Court. Thus it appears that Mohanbhai was a person who was especially chosen and the second panch was also especially chosen because he was friend of panch No. 1, There was hesitation on the part of panch No. 1 to admit the friendship and he was not willing to admit that a part of survey No. 130 was cultivated by panch No. 2 unless he was shown the copies of panipatraks and a position was created by which he had no alternative but to admit that panch No. 2 was cultivating a part of survey No, 130, and the other part was being cultivated by him. If, therefore, there was a panch who was especially chosen and he wanted to fall in line with the prosecution and did not desire to admit certain facts which would go to show that he was friendly with panch No. 2, his evidence was required to be accepted after scrutiny and care. Now if this evidence is considered along with the defence evidence it would appear that Shri Raval (D. W. 1) originally was the prosecution witness according to the charge-sheet. The Additional Public Prosecutor who was in charge of the case gave application Ex. 20 by which it was submitted that he did not desire to examine Raval as prosecution witness. The defence raised objection stating that Shri Raval was an important witness and it was stated by endorsement that Shri Raval must be offered for cross-examination. Now here it may be stated that the complainant was cross-examined and he was questioned in regard to the defence version. He was specifically put questions that he had met Shri Raval for obtaining change and the accused was not present at that time. The complainant denied the suggestion. But the fact remains that the defence version was put to the complainant both in regard to the talk which the complainant had with Shri Raval and in regard to the fact that the accused had accompanied him to the State Bank of Saurashtra where they met Shri Upadhyaya. Both these versions were denied by the complainant. Under, these circumstances it was expected of the prosecution to examine Shri Raval. The prosecution did not examine Shri Raval, Ultimately the defence examined Shri Raval. Shri Raval thoroughly supported the say of the defence. Now his evidence cannot be thrown away on the ground that he is serving in the same department as a colleague. He was questioned whether he would be glad if the accused was acquitted and he stated that he would be glad if the accused was acquitted. This answer would never mean that Shri Raval would tell lies in order that the accused may be acquitted. When two persons are serving in one office and one person is prosecuted and ultimately acquitted, the other person working in that office is bound to be glad in regard to the outcome in favour of the colleague who was working in the office. From that one could never conclude that the colleague would be willing to tell lies in order that the other colleague working in the same office is acquitted. Shri Raval is a senior person working in the office for last many years. His evidence could not be thrown away on the grounds suggested by the learned Special Judge. In regard to Shri Upadhyaya (D. W. 2) in Ws evidence in examination-in-chief he stated that he was working in Mahuva Branch in 1971 and at that time one Shri Bhatt was working with him and who was his friend and he stated that the accused is the husband of the sister of Shri Bhatt, This was disclosed in examination-in-chief. Now one cannot impute a person working in the Bank for last 13 years that because he had friendship in 1971 with one Shri Bhatt he would be willing to oblige Shri Bhatt and tell lies for saving the husband of the sister of Shri Bhatt. Such a conclusion is not possible. In cross-examination it was. suggested that one Shri Madhubhai Mehta was officer in Bhagtinagar branch at Rajkot and the accused is the brother of Madhubhai Mehta. Shri Upadhyaya was not serving under Madhubhai Mehta. He was not serving in Bhagtinagar Branch. State Bank of Saurashtra may have several officers working in several branches of the State. Merely because one of the brothers of the accused is an officer in one of the branches of State Bank of Saurashtra this person who had no connection with Madhubhai Mehta could not be willing to tell lies to save the brother of one of the officers serving in some branch.
12. In a case of Rabindra Kumar Dey v. State of Orissa reported in : 1977CriLJ173 it was observed as under (Para 6):
(1) that the onus lies affirmatively on the prosecution to prove its case be' beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and
(3) that the onus of proof never shifts. It is true that Under Section 105 of the Evidence Act the onus of proving exceptions mentioned in the Penal Code lies on the accused, but this section does not at all indicate the nature and standard of proof required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court, This aspect of the matter is no longer res integra but is concluded by several authorities of this Court.
Now if the defence evidence is considered in the light of the observations of the Supreme Court we may say that there are two officers giving one version which is quite contrary to the version of the complainant. The case of the defence was put to the first witness examined by the prosecution.
As we have observed earlier the complainant is an accomplice and his evidence required independent corroboration. The panch wanted to fall in line with the prosecution case and, therefore, if the defence version is probable it would be said safely that the prosecution did not establish its case beyond reasonable doubt. Under these circumstances we are of the opinion that the defence version put by the accused is probable and as the defence version is probable it throws great doubt and the result would be that the prosecution version cannot be accepted and if the prosecution version cannot be accepted it cannot be suggested that the prosecution proved its case.
13. xx xx xx xx