principles regarding use of article 136 of constitution: Supreme Court 2005

exercise of power of the Supreme Court under Article 136 of the
Constitution following principles emerge :

i) The powers of this Court under Article 136 of the
Constitution are very wide but in criminal appeals this Court
does not interfere with the concurrent findings of the fact
save in exceptional circumstances.
ii) It is open to this Court to interfere with the findings of fact
given by the High Court if the High Court has acted
perversely or otherwise improperly.
iii) It is open to this Court to invoke the power under Article 136
only in very exceptional circumstances as and when a
question of law of general public importance arises or a
decision shocks the conscience of the Court.
iv) When the evidence adduced by the prosecution fell short of
the test of reliability and acceptability and as such it is highly
unsafe to act upon it. And
v) The appreciation of evidence and finding is vitiated by any
error of law of procedure or found contrary to the principles
of natural justice, errors of record and misreading of the
evidence, or where the conclusions of the High Court are
manifestly perverse and unsupportable from the evidence on
record

 

CASE NO.:
Appeal (crl.) 1186 of 1999

PETITIONER:
Ganga Kumar Srivastava

RESPONDENT:
The State of Bihar

DATE OF JUDGMENT: 20/07/2005

BENCH:
B.N.Agrawal & Tarun Chatterjee

JUDGMENT:
JUDGMENT

TARUN CHATTERJEE, J.

This appeal is directed against an order of conviction and
sentence recorded against the appellant under section 161 of the
Indian Penal Code (in short “IPC”) and section 5(2) of the Prevention
of Corruption Act ( in short “the Act” ). The appellant was tried by
the Special Judge (Vigilance) North Bihar, Patna. For each of the
two offences as indicated above for which the appellant was
convicted, he was sentenced to undergo imprisonment for one year
which will run concurrently. This conviction of the appellant was
maintained by the High Court in appeal.

The only question that arises for our consideration in this appeal
is whether on the evidence and materials on record, the conviction and
sentence recorded against the appellant are justified or they require to
be set aside?
Briefly stated, the facts of the case giving rise to this appeal
before this Court may be enumerated in the following manner:

On 25th of June, 1985, Harendra Kumar Singh, the complainant
(PW6) filed an application (Exhibit 8) alleging that the appellant who
was, at the material point of time, posted as an Assistant Electrical
Engineer, Electric Supply Sub-division No.3, Patna in the State of
Bihar, demanded bribe of Rs.500/- for giving electric supply line for
5 H.P. motor for his agricultural work, and he had, under pressure,
given Rs.100/- on 11.06.1985 to the appellant. The Assistant Sub-
Inspector of Police, Mundrika Choudhary (PW5) was directed on 25th
of June, 1985 to verify the information, and according to the verifier,
the informant again paid Rs.100/- as bribe to the appellant. Thereafter
the accused demanded the balance amount on 28.06.1985 in the
morning and thus, the appellant by demanding bribe for giving
electric supply to the complainant, had committed an offence under
section 161 of the IPC and also under section 5(2) of the Act. The
further prosecution case was that on 28th of June, 1985 in the morning
the informant (PW6) met the raiding party near the inspection
bunglow at Sitamarhi where the informant produced Rs.150/- meant
for giving as bribe (Rs.100/- note and another Rs.50/- note) and a
memorandam was thereafter prepared. It was the case of the
prosecution further that PW6 alongwith the watcher PW5 and others
of the raiding party proceeded towards the residence of the appellant
and the raiding party stayed away and the watcher and the informant
went to the residence of the appellant with instruction to give signal
on payment of bribe on demand by the appellant. The informant and
the watcher on reaching the residence of the appellant enquired about
the appellant from his father and were informed that the appellant was
asleep, whereupon they sat in the outer room, and the father of the
appellant went inside the house and called the appellant. And
thereafter, the appellant came and sat in the room. The money
demanded (Rs.150/-) was paid to the appellant there, who kept the
same in the pocket of the flying shirt and then the watcher, in the
meantime, went out and signaled the raiding party whereupon the
raiding party caught hold of the appellant and recovered the bribed
money in presence of two independent witnesses, namely, Kaushal
Kishore Singh (PW2) and Ram Dayal Singh (PW12), and search and
seizure list (Exhibit 3) was prepared over which the signature of the
appellant (Exhibit 2) was taken.

The defence case of the appellant was inter alia that because of
the filing of a criminal case against the informant on 11.4.1985 the
false case was lodged. It was the case of the appellant that the electric
connection was already given to the informant on 22nd of June, 1985
and therefore there could not have been any occasion for demand and
acceptance of any bribe on 25.6.1985 and 28.6.1985 for supply of
electric connection to the informant. The further defence of the
appellant was that the amount was planted in the flying shirt of the
appellant and the prosecution case regarding the demand and
acceptance of the bribe was wholly false. Accordingly, the appellant
prayed for dismissal of the case.
After the Bihar State Electricity Board accorded sanction for
prosecution of the appellant under section 6(1)(c) of the Act and after
both the parties adduced evidence in respect of their respective cases
the Special Judge (Vigilance), North Bihar, Patna by his judgment
convicted the appellant under section 161 of the IPC and under
section 5(2) of the Act and sentenced him to undergo rigorous
imprisonment for one year each under each Act while the sentences
were directed to run concurrently.

Feeling aggrieved by this judgment of the Special Judge
(Vigilance), North Bihar, Patna, the appellant preferred an appeal to
the High Court of Patna which was also dismissed against which the
present appeal has been preferred in this Court by the accused
appellant.

It is now, therefore, an admitted fact that concurrent findings of
fact for conviction of the appellant under section 161 of the IPC read
with section 5(2) of the Act were arrived at by the High Court as well
as by the Special Judge (Vigilance), North Bihar, Patna. Since this
appeal relates to interference by this Court under Article 136 of the
Constitution against the concurrent findings of fact, it would be
appropriate for us to consider the scope of Article 136 of the
Constitution in such a situation before going to the merits of the
appeal. It is now well settled that power under Article 136 of the
Constitution of this Court is exerciseable even in cases of concurrent
findings of fact and such powers are very wide but in criminal appeals
this Court does not interfere with the concurrent findings of the fact
save in exceptional circumstances. This view was expressed by this
Court way back in the year 1958 in the case of State of Madras Vs.
Vaidyanatha Iyer, AIR 1958 SC 61. In this decision this Court held
that in Article 136 the use of the words “Supreme Court may in its
discretion grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India” shows that in
criminal matters distinction can be made between a judgment of
conviction or acquittal. This Court further observed that this Court
will not readily interfere with the findings of fact given by the High
Court and the court of first instance but if the High Court acts
perversely or otherwise improperly, interference may be made. In
that decision, this Court had set aside a judgment of acquittal on facts
as salient features of the case were not properly appreciated or given
due weight to by the High Court and its approach to the question
whether a sum of Rs.800/- was an illegal gratification or a loan was
such that the High Court had acted perversely or otherwise
improperly. From this decision it is, therefore, clear that this Court in
the exercise of its power under Article 136 is entitled to interfere with
findings of fact if the High Court acts perversely or otherwise
improperly that is to say the judgment of the High Court was liable to
be set aside when certain salient features of the case were not properly
appreciated or given due weight by the High Court. Again in
Himachal Pradesh Administration Vs. Shri Om Prakash, 1972 (1)
SCC, 249, this Court, while considering its power under Article 136
to interfere with the findings of the fact observed as follows:

“in appeals against acquittal by special leave under Article
136, this Court has undoubted power to interfere with the
findings of the fact, no distinction being made between
judgments of acquittal and conviction though in the case of
acquittals it will not be ordinarily interfere with the
appreciation of evidence or on findings of fact unless the
High Court “acts perversely or otherwise improperly”.”

Again in Balak Ram Vs. State of UP, 1975 (3) SCC 219 this
Court also held that the powers of the Supreme Court under Article
136 of the Constitution are wide but in criminal appeals this Court
does not interfere with the concurrent findings of the fact save in
exceptional circumstances. In Arunachalam Vs. P.S.R.
Sadhanantham, 1979(2) SCC 297 this Court while agreeing with the
views expressed on the aforesaid mentioned decisions of this Court
has thus stated :

“The power is plenary in the sense that there are no words
in Article 136 itself qualifying that power. But, the very
nature of the power has led the court to set limits to itself
within which to exercise such power. It is now the well
established practice of this Court to permit the invocation
of the power under Article 136 only in very exceptional
circumstances, as when a question of law of general public
importance arises or a decision shocks the conscience of
the court. But within the restrictions imposed by itself,
this Court has the undoubted power to interfere even with
findings of fact, making no distinction between judgments
of acquittal and conviction, if the High Court, in arriving
at those findings, has acted “perversely or otherwise
improperly”.”

In Nain Singh Vs. State of UP, 1991(2) SCC 432 in which all
the aforesaid decisions as referred to herein above were considered
and after considering the aforesaid decisions on the question of
exercise of power under Article 136 of the Constitution and after
agreeing with the views expressed in the aforesaid decisions finally
laid down the principle that the evidence adduced by the prosecution
in that decision fell short of the test of reliability and acceptability and
therefore, was highly unsafe to act upon it. In State of U.P. Vs. Babul
Nath (1994) 6 SCC 29 this Court, while considering the scope of
Article 136 as to when this Court is entitled to upset the findings of
fact, observed as follows:

“At the very outset we may mention that in an appeal
under Article 136 of the Constitution this Court does not
normally reappraise the evidence by itself and go into the
question of credibility of the witnesses and the assessment
of the evidence by the High Court is accepted by the
Supreme Court as final unless, of course, the appreciation
of evidence and finding is vitiated by any error of law of
procedure or found contrary to the principles of natural
justice, errors of record and misreading of the evidence, or
where the conclusions of the High Court are manifestly
perverse and unsupportable from the evidence on record.”

From the aforesaid series of decisions of this Court on the
exercise of power of the Supreme Court under Article 136 of the
Constitution following principles emerge :

i) The powers of this Court under Article 136 of the
Constitution are very wide but in criminal appeals this Court
does not interfere with the concurrent findings of the fact
save in exceptional circumstances.
ii) It is open to this Court to interfere with the findings of fact
given by the High Court if the High Court has acted
perversely or otherwise improperly.
iii) It is open to this Court to invoke the power under Article 136
only in very exceptional circumstances as and when a
question of law of general public importance arises or a
decision shocks the conscience of the Court.
iv) When the evidence adduced by the prosecution fell short of
the test of reliability and acceptability and as such it is highly
unsafe to act upon it. And
v) The appreciation of evidence and finding is vitiated by any
error of law of procedure or found contrary to the principles
of natural justice, errors of record and misreading of the
evidence, or where the conclusions of the High Court are
manifestly perverse and unsupportable from the evidence on
record. (underlining is ours)

Keeping the above position of law as enunciated and settled by
the aforesaid series of decisions of this Court, we shall now examine
the evidence adduced by the parties and the materials on record and
see in view of the nature of offence alleged to have been committed
by the appellant whether the concurrent findings of fact call for
interference in the facts and circumstances of the case.

Questioning the propriety of the judgment under appeal Mr.
Sanyal, the learned senior counsel appearing for the appellant had
raised two-fold submissions before us. The first submission was that
the absence of a legal sanction under section 6 of the Act would
vitiate the entire proceeding notwithstanding the fact that the absence
of sanction had not resulted or occasioned in failure of justice. The
second submission was that the findings of fact arrived at by the
Special Judge which were confirmed by the High Court were liable to
be set aside on the ground that such findings of fact were not based on
due and proper consideration of the materials on record and proper
appraisal of evidence, and that there was failure on the part of the
High Court as well as of the Special Judge in coming to a proper
conclusion of fact on the question whether the appellant in fact was
liable to be prosecuted under section 161 of the IPC and section 5 of
the Act.
In view of our judgment that we propose to render on the merits
of the appeal, we do not think it necessary to consider the question of
sanction in this appeal. Let us, therefore, examine whether this Court
in the exercise of its power under Article 136 of the Constitution is
entitled to interfere with the findings of fact arrived at by the High
Court and the Special Judge.
In our view the findings of the courts below were vitiated as
due and proper consideration of the materials on record and also
proper appraisal of evidence was not made by them. As noted
hereinearlier, the appellant was Assistant Electrical Engineer at the
material point of time, In-charge of electric supply. The complainant
Harendra Kumar Singh had applied for electric connection on the
ground that he had purchased a motor of 5 H.P. after taking loan from
Central Bank of India which was filed on 21st February 1983. This
application was placed before the appellant and when the said
application was filed the appellant demanded Rs.500/- as bribe for
giving electric connection. According to the complainant, although
several persons who also applied like the appellant for supply of
electricity later than the complainant were provided the electricity
connection but the supply of electricity so far as appellant was
concerned, was not allowed only because the appellant had failed to
pay bribe of Rs.500/. Under these circumstances the aforesaid
application was filed before the Chairman of Electricity Board stating
the entire facts and on the basis of which show-cause was issued to
the appellant on 1st April 1985. On being enraged, the appellant
implicated the complainant for electrical theft and started a
proceeding against him. However, on payment of Rs.100/- the matter
was compromised by the appellant with the complainant. The said
amount of Rs.100/- bribe was paid to the appellant on 11th June 1985.
According to the prosecution case, the appellant also promised to
hush up the case filed against him and give electrical connection on
payment of Rs.400/-. However, the complainant was confident of
having his work done on further payment of Rs.300/- only. An
application was filed by the complainant on 25th June 1985 before the
Superintendent of Police (Vigilance Department), Patna, Bihar on the
basis of which a watcher of the department Shri Mundrika Choudhary
was deputed to verify the allegation. A report was submitted by the
watcher ( Ext. 6) dated 26th June 1985 to the Superintendent of Police
(Vigilance ) who by his order dated 26th June 1985 directed the
Deputy S.P. (Vigilance ) to institute a case, take up investigation and
organize a raiding party. The report of the watcher also disclosed,
inter-alia, that the amount of Rs.100/- was accepted by the accused as
bribe and he had also asked the appellant in presence of watcher to
manage Rs.400/- more. According to the prosecution case the
complainant had undertaken to pass the aforesaid sum of Rs.200/- on
28th June 1985 at about 8.00 a.m. A raiding party was organized
consisting of 12 persons including Shri Baidahi Sharan Mishra, a
Magistrate and a Deputy Superintendent of Police and Shri Verma
was heading the raiding party. On 27th June 1985 they proceeded
towards Sitamarhi and reached there at night. At Sitamarhi the
aforesaid raiding party met the complainant Harendra Kumar Singh
in the morning of 28th June 1985 who informed them that they should
be ready with Rs.150/- to be given to the accused as bribe. A
memorandum of G.C. notes was then prepared and complainant
instructed to give the money to the appellant on demand. The raiding
party then went near the house of the appellant at about 7.15 a.m. of
the same day i.e. on 28th June 1985. Mundrika Choudhary and the
complainant went to the residence of the appellant, and the other
members of the raiding party however asked to sit in the outer
verandah of the residence of the appellant. The appellant came there
and demanded rupees 150/- and told him to bring an end to his case.
Accordingly, the complainant paid Rs.150/. The watcher then came
out and gave the signal on which the raiding party reached the spot.
According to the prosecution case, the appellant had kept the bribe
amount of Rs.150/- ( one note of Rs.100/- and the other note of
Rs.50/-) in the upper pocket of the flying shirt. The raiding party
searched the accused in presence of two independent witnesses and
recovered the said amount from the said pocket and prepared seizure
list which was made Ext.15.
After investigation, the charge sheet was submitted against the
appellant. Cognizance of the offence was taken and trial proceeded.
In defence, the appellant pleaded not guilty to the charges
framed against him. He sought to allege in defence that he was
falsely implicated in the case on account of filing a case against the
complainant. His further defence was that no delay in fact occurred in
giving electricity connection to the complainant on account of any
lapse on his part.
The prosecution had examined as many as 13 witnesses in
support of its prosecution case. Besides, oral evidence prosecution
also relied on some documents exhibited in this case. Let us now
examine whether the evidence adduced from the side of the
prosecution oral and documentary could lead the courts below to
come to a conclusion of fact that the appellant should be prosecuted
for taking bribe under section 161 of the IPC and also under section
5(2) of the Act. So far as this payment is concerned, the courts
below however did not rely on the said evidence of complainant
saying a sum of Rs. 100/- as first instalment was paid by him to the
appellant on 11th June 1985. That being the position, we do not
think it necessary to go into the question whether in fact Rs.100/- as
first instalment was paid to the appellant on 11th June 1985, as stated
by the complainant.
So far as the second instalment of Rs.100/- as bribe on 25th June
1985 is concerned, the courts below relied on the evidence of the
watcher Mundrika Choudhary and held that the said amount was
received by the appellant in favour of the watcher Mundrika
Choudhary. The courts below also relied on the report of the watcher
which was Ext.C and also on the evidence of PWs5 and 6 and
therefore concluded that the appellant had accepted bribe to the extent
of Rs.100/- on 25th June 1985. In our view, this alleged payment of
Rs.100/- as bribe on 25th June 1985 could not be satisfactorily proved
by the prosecution in view of the fact that it is an admitted position
that appellant had filed an application for grant of casual leave for
going to Darbanga to see his married ailing sister. It also appears
from the statement made by the appellant under section 313 of the
Cr.P.C. that the appellant also stated categorically that he was not
present in the office on 25th June 1985. In order to prove that he had
taken casual leave the appellant not only produced the application for
casual leave from the record it also examined Shri Satya Narayan Lal
who deposed on his behalf in this case. In his evidence DW1 had
stated categorically that estimates were given to the companion of the
complainant on 25th June 1985 and was so given by him, also stated
categorically in his evidence that on 25th June 1985 the accused was
on casual leave and had gone to Darbanga for seeing his ailing sister.
However, it is not in dispute that the casual leave application was
marked as Ext.E in this case. The fact of his absence from the office
on 25th June 1985 was not accepted by the courts below on the ground
that the casual leave register was not proved nor the officer granting
leave was examined in this case. Therefore, the courts below
discarded the evidence of DW1 Satya Narayan Lal and also the
application for casual leave Ext.E only on the ground that the
appellant had failed to discharge the onus which lay on the appellant
to prove such fact to show that he was not present in the office on 25th
June 1985. We are unable to agree with the aforesaid findings of the
courts below. In our view, even if casual leave register was not
produced, the application made for casual leave on that particular date
admittedly was produced by the appellant in the case. In order to
prove that the leave application and also to prove that he was not in
the office on 25th June 1985 the appellant had examined one of the
officers of the department, who categorically stated in his deposition
that the appellant had taken casual leave on that date and in fact had
gone to Darbanga for seeing his ailing sister. Therefore, the courts
had gone in error manifestly by drawing an adverse inference against
the appellant for not producing the casual leave register in the case.
Was it not also a duty to call upon the authorities to produce or call
for the casual leave register only to show that the appellant was
physically present in the office on that date? In our view, therefore,
there was no reason for the court to discard the application for grant
of casual leave which was supported by the evidence of DW1 Satya
Narayan Lal to show that the appellant was not present on 25th June
1985 when the instalment of Rs.100/- was paid to the appellant in
presence of the watcher. Therefore, we are of the view that the courts
below acted improperly by discarding the application for grant of
casual leave and also by discarding the evidence of DW1, who is an
officer of the Board and thereby the conclusion of fact arrived at by
the courts below that he was present in the office on 25th June 1985
and accepted bribe for a sum of Rs.100/- from the complainant cannot
be accepted. Accordingly, the courts below had acted improperly to
come to a conclusion of fact on the aforesaid factual aspect of the
matter which shocks the conscience of this Court and which lead us to
hold that the evidence adduced by the prosecution in this respect fell
short of the test of reliability and acceptability and therefore it was
highly unsafe to act upon it.

Let us now turn to another aspect of the matter. Let us examine
whether the evidence from the prosecution side conclusively proved
payment of Rs.150/- by the complainant to the appellant on 28th of
June, 1985 in presence of two witnesses and the watcher. On this
also, we are of the view that the High Court and the Special Judge
were in error by holding that the prosecution had been able to prove
its case to the hilt. It is true that in the statement made under section
313 of the Cr.P.C. the appellant admitted the presence of the watcher
and the complainant on 28th June, 1985 but his defence was that as
soon as he put on the flying shirt hanging on the peg he was caught
and was forced to sit in the standing car. The defence case was that
taking advantage of the absence of the appellant the money was kept
in the pocket of the flying shirt of the appellant and he was caught as
soon as he came out and put on the flying shirt. It is also true that it
was not disputed by the appellant that on 28th June 1985 Rs.150/- was
recovered from the flying shirt of the appellant. It was also not
disputed that such recovery was made in presence of the complainant
and the watcher. Therefore, the examination by the courts below was
that whether in fact the money was kept by the complainant in
absence of the appellant in the flying shirt. In this connection
prosecution had sought to prove this case by producing PW5 the
watcher and the complainant PW6. It is true that these two witnesses
fully supported the demand and acceptance of the amount by the
appellant but it is an admitted position that (P.W.10) K.K. Verma,
Dy. S.P. who had investigated the case admitted in his evidence that
the watcher had told him that the appellant had come in ganji and
lungi and had put on the bushshirt hanging in the room where he was
sitting. Evidence on the part of K.K.Verma (PW10) was sought to be
explained by the courts below by saying that the fault in recording
statement of the watcher by the I.O. was acceptable. In view of the
aforesaid admission of the watcher that the appellant came with ganji
and lungi, as admitted by PW5 before PW10 it would be difficult for
us not to accept the version of the appellant that the notes were
planted by the complainant in presence of the watcher before the
appellant had entered the room where the complainant and the
watcher were sitting. There is no dispute in this case that
phenolphthalein powder was not used by the vigilance to prosecute
the case on the alleged recovered notes for the purpose of charging the
appellant for bribe. In Som Prakash Vs. State of Delhi (1974) 4
SCC 84 it was observed “It is but meet that science-oriented detection
of crime is made a massive programme of police, for in our
technological age nothing more primitive can be conceived of than
denying the discoveries of the sciences as aids to crime suppression
and nothing cruder can retard forensic efficiency than swearing by
traditional oral evidence only, thereby discouraging liberal use of
scientific research to prove guilt.” In Raghbir Singh Vs. State of
Punjab (1976) 1 SCC 145 while discarding the oral and documentary
evidence laid on behalf of the prosecution is not such as to inspire
confidence in the mind of the court, the Supreme Court observed at
paragraph 11 as follows:

“We may take this opportunity of pointing out that it
would be desirable if in cases of this kind where a trap is
laid for a public servant, the marked current notes, which
are used for the purpose of trap, are treated with
phenolphthalein powder so that the handling of such
marked currency notes by the public servant can be
detected by chemical process and the court does not have
to depend on oral evidence which is something of a
dubious character for the purpose of deciding the fate of
the public servant.” (Emphasis is ours)

We must not forget that in a trap case the duty of the officer to
prove the allegations made against a Government officer for taking
bribe is serious, and therefore, the officers functioning in the
Vigilance Department must seriously endeavour to secure really
independent and respectable witnesses so that the evidence in regard
to raid inspires confidence in the mind of the court and the Court is
not left in any doubt whether or not any money was paid to the public
servant by way of bribe. It is also the duty of the officers in the
Vigilance Department to safeguard for the protection of public
servants against whom a trap case may have been laid.

In view of the discussions made and the decisions of the court
above, we are of the opinion that considering the fact that the present
case was also a case of trap of a public servant a duty was cast upon
the authorities to use phenolphthalein powder for the purpose of
proving the charge of bribe of the appellant without relying only on
the oral and documentary evidence adduced from the side of the
prosecution. Therefore, in our view, where admittedly the recovered
notes were not treated with phenolphthalein powder so that the
handing of such marked notes by the appellant could be detected by
chemical process and the court need not here to depend on the oral
evidence which is something of a dubious character to decide the fate
of a public servant. Keeping the aforesaid in our mind, we are of the
view that the defence was much more probable. Defence case was
that the bushshirt hanging in the peg where the complainant came, the
appellant was at that point of time asleep in the next room and father
of the appellant went to wake him up and at that point of time the
notes were thrust into the pocket of the hanging bushshirt, which the
appellant wore when he came to the outer room as he was in his ganji
and lungi. In view of our discussions made hereinabove, we are of
the view that the defence case must be held to be probable.
Accordingly, we must hold that in the light of the discussions made
hereinabove, the evidence led on behalf of the prosecution was not
such as to inspire confidence in the mind of this Court, and therefore,
we are not at all satisfied that the appellant either demanded Rs.150/-
from the complainant or the complainant paid bribe to the appellant
by handing over two marked currency notes to him.

There is yet another aspect of the matter. Admittedly, supply of
electricity was restored or his house was connected with electric
supply. According to the prosecution case, the supply of electricity
was restored in the month of July 1985 whereas the appellant took a
stand that before the complaint was made by him regarding the
allegation of bribe the electric supply was already given to the
complainant. According to the appellant, such connection was given
to the complainant on 22nd June 1985. If this restoration of electric
connection dated 22nd June 1985 to the complainant can be accepted
to be correct then there could have been no occasion for demand and
acceptance of bribe either on 25th June 1985 and 28th June 1985 for
the supply of electric connection. As noted hereinearlier, according
to the prosecution case and also from the materials on record the
electric connection to the complainant was alleged to have been given
on 8th July 1985. As noted hereinearlier, the appellant however took a
stand that the electric connection was made on 22nd June 1985. The
necessary entry regarding electric connection was proved by the
appellant by relying on Ext.F. Ext.G was also relied on by the
appellant which was an intimation by Shri Bachhu Tiwary bearing
endorsement of the appellant to the effect that connection was given
on 22nd June 1985. However, the complainant refused to give any
certificate and thereby the appellant advised Shri Tiwary to get
certificate from Local Mukhia which is Ext.C in the present case.
Ext.K is an application of Ram Deo Rai to the Executive Engineer
stating that electric connection had been given to the complainant on
22nd June 1985.
In order to prove that the electric connection was given to the
complainant on 22nd June 1985, a report of Shri Bachu Tiwary was
submitted in which it has been categorically stated that the Junior
Engineer had already given the certificate regarding giving electric
connection to the complainant. Ext.G. was produced to show that the
complainant did not give any certificate and therefore the certificate
was taken from the local Mukhia. An adverse inference was drawn
by the courts below for non-production of Shri Tiwary in the witness
box. It is an admitted position that Ext.F was the document which
clearly shows that electric connection was given to the complainant
on 22nd June 1985. It is also not in dispute that the report was
submitted to that effect by Bachu Tiwary, the then Junior Engineer.
Since Bachu Tiwary was not examined the courts below could not
rely on the report of the Bachu Tiwary. However, electric connection
was sought to be proved by producing a certificate from the local
Mukhia to show that electric connection was given on 22nd June 1985.
The materials on record and also from the Ext.I it is clear that the
work order was signed on 11th June 1985. Ext.I is the letter said to
have been written to the complainant by the Electrical Executive
Engineer, Electricity Division, Sitamarhi. Ext.K is also the report of
the Headline Man to show that electric connection was given on 22nd
June 1985 and it was re-connected on 8th July 1985 when the meter
was brought by the complainant from his residence. The accused-
appellant also sought to explain by Ext.L series to show that he was
making all efforts for giving electric connection to the complainant
and so is Ext.M. From all these documents, we are of the view that
electric connection was given to the complainant on 22nd June 1985
and the same was re-connected on 8th July 1985. Therefore, we are
of the view that the courts below were manifestly in error in
discarding the materials produced by the appellant to show that the
electric connection was given on 22nd June 1985 and not on 8th July
1985 whereafter the vigilance enquiry was started against the
appellant.
Even otherwise, the defence of the accused was more probable
and therefore it should be accepted. It was one of the defence of the
appellant that because of starting a criminal case against the
complainant, the trap case was initiated by the vigilance department at
the instance of the complainant. It is not in dispute that a complaint
at the instance of the appellant was made against the complainant and
another for alleged theft of electricity and the complainant was found
guilty which was however set aside in appeal. In the background of
this fact and other circumstances as noted hereinearlier can it not be
said that the defence case was more probable than that of the
prosecution case and that in the facts and circumstances and evidence
on record the defence case must be accepted The aforesaid dramatic
case was initiated by the vigilance department at the instance of the
complainant. On consideration of the entire materials on record and
in view of our discussion made hereinabove, we are therefore of the
view that courts below including the High Court had acted in a
manner which was not warranted and the defence of the accused-
appellant was probable and therefore no conviction could be made
against the accused-appellant.
We are also of the view that it is more probable that in order to
put the appellant into trouble in his service the trap case was initiated
by the vigilance department at the instance of the complaint filed by
the complainant because of the fact that a criminal case was initiated
by the appellant against the complainant for theft of electricity.
Therefore, we must hold that in view of the discussions made
hereinabove the judgments and orders of the court below are liable to
be set aside on the ground that such findings of fact and appreciation
of evidence are vitiated as the evidence adduced by the prosecution
fell short of the test of reliability and acceptability,and, as such, it was
highly unsafe on the part of the courts below to act upon it. For the
reasons aforesaid, we set aside the judgment of the High Court as well
as of the Special Judge and exonerate the appellant from the charges
found against him.
The appeal is therefore allowed.