TaxTMI 
TaxTMI 
2022 (12) TMI 1490
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....v., Mr. C. Santhosh, Adv., Ms. Pushpita Basak, Adv., Mr. Rajarajeshwaran, Adv., Ms. Pushpa Basak, Adv., Mr. R. Poornachandran, Adv., Mr. S. Ajith Williyam, Adv., Mr. M.A. Aruneshe, Adv., Mr. K. Pragadeesh Kumar, Adv., Mr. Basava Prabhu S. Patil, Sr. Adv., Mr. Geet Ahuja, Adv., Mr. Samarth Kashyap, Adv., Mr. Anirudh Sanganeria, AOR, Mr. M. Karpaga Vinayagam, Sr. Adv., Mr. K. V. Muthu Kumar, AOR, Mr. Nitin Kumar, Adv., Mr. Deepak Sharma, Adv., Mr. C. Aravind, Adv., Mr. Kaushal Yadav, AOR, Mr. Nandlal Kumar Mishra, Adv., Dr. Ajay Kumar, Adv., Dr. Sushil Balwada, Adv., Mr. Ram Kishor Singh Yadav, Adv., Mr. Nand Lal Kumar Mishra, Adv., Mr. Vikrant Yadav, Adv., Mr. Punit Jain, Adv., Ms. Christi Jain, Adv., Mr. Umang Mehta, Adv., Mr. Roy Abraham, Adv., Ms. Reena Roy, Adv., Mr. Akhil Abraham, Adv., Mr. Yaudhinder Lal, Adv., Ms. Purva, Adv., Mr. Himinder Lal, AOR, Mr. Raghenth Basant, Adv., Ms. Liz Mathew, AOR, Ms. Roopali Lakhotia, Adv., Mr. Ajay Krishna, Adv., Mr. B. Balaji, AOR, Mr. Gagan Gupta, AOR, Mr. Ananta Prasad Mishra, Adv., Mr. Deepak Kumar Jain, Adv., Mr. Anil S.P., Adv., Mr. Nikhil D. Kamath, Adv., Mr. Pavan R. Javali, Adv., Mr. Sunil M.V., Adv., Mr. Vinayak Kulkarni, Adv., Mr.....
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.... comprising of five judges by Hon'ble the Chief Justice of India. For easy reference, the Order of Reference dated 27.08.2019 is extracted as under: "ORDER 1. The present reference, concerning the Prevention of Corruption Act, 1988, arises out of the order dated 28.02.2019, passed by a two-judge bench of this Court, wherein they expressed certain doubts as to the validity of the position of law as expounded by this Court in the case of P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another, (2015) 10 SCC 152. In that case, the Court held that, in the absence of primary evidence of the complainant due to his death, inferential deductions in order to sustain a conviction under Sections 7 and 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 was impermissible in law. 2. However, the Court, vide order dated 28.02.2019, highlighted a number of judgments, such as Kishan Chand Mangal vs. State of Rajasthan, (1982) 3 SCC 466; Hazari Lal vs. State (Delhi Administration), (1980) 2 SCC 390; and M. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691, wherein this Court, despite the absence of primary evidence of the complain....
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....two sections cannot be brought home. Thus, mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof in the absence of proof of demand would not be sufficient to bring home the charge under Sections 7, 13(1)(d)(i) and (ii) of the Act. Hence, the pertinent question is, as to how demand could be proved in the absence of any direct evidence being let in by the complainant owing to the complainant not supporting the complaint or turning "hostile" or the complainant not being available on account of his death or for any other reason. In this regard, it is necessary to discuss the relevant Sections of the Evidence Act before answering the question for reference. Relevant provisions of the Act 3. Before proceeding further, it would be useful to refer to the relevant provisions of the Act. Sections 7,13(1)(d)(i) and (ii) and 20 of the Act as they stood prior to their amendments are extracted as under: 7. Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself ....
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....cuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant." xxx xxx xxx Section 20 - Presumption where public servant accepts gratification other than legal remuneration. - (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to....
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.... motive or reward. iv) an agreement to accept or an attempt to obtain does not fall within Section 13(1)(d). vi) mere acceptance of any valuable thing or pecuniary advantage is not an offence under this provision. vii) therefore, to make out an offence under this provision, there has to be actual obtainment. viii) since the legislature has used two different expressions namely "obtains" or "accepts", the difference between these two must be noted. 6. In Subash Parbat Sonvane vs. State of Gujarat (2002) 5 SCC 86 ("Subash Parbat Sonvane"), it was observed that mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d). In Sections 7 and 13(1)(a) and (b) of the Act, the legislature has specifically used the word "accepts" or "obtains". As against this, there is departure in the language used in sub-section (1)(d) of Section 13 and it has omitted the word "accepts" and has emphasized on the word "obtains". In sub-clauses (i), (ii) and (iii) of Section 13(1)(d), the emphasis is on the word "obtains". Therefore, there must be evidence on record that the accused "obtains" ....
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....the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the 1947 Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the 1947 Act. According to this Court, "obtain" means to secure or gain (something) as a result of request or effort. In the case of obtainment, the initiative vests in the person who receives and, in that context, a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the 1947 Act unlike an offence under Section 161 of the Indian Penal Code (for short, 'IPC')., which, can be, established by proof of either "acceptance" or "obtainment". Conflict in the three decisions? 9. On a perusal of the Order of Reference, we find that it has been discerned by a bench of three judges that there is a conflict in the decisions of two three-judge Benches of this Court in the cases of B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55 ("B. Jayaraj"); P. Satyanarayana Murthy vs. D. Inspector of Police, State of....
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....ut proof of demand would not bring home the offence under Section 7. Therefore, the use of illegal means or abuse of position by a public servant to obtain any valuable thing or pecuniary advantage was not held to be established insofar as the offence under Sections 13(1)(d)(i) and (ii) of the Act is concerned. (ii) It was further observed that the presumption under Section 20 of the Act could not also be drawn in respect of an offence under Section 7 of the Act. That such a presumption could have been drawn only if there was proof of acceptance of illegal gratification for which proof of demand was a sine qua non and as the same was lacking in the said case, the primary facts on the basis of which the legal presumption under Section 20 could be drawn were wholly absent. Consequently, the conviction was set aside and appeal was allowed. (B) P. Satyanarayana Murthy (i) In P. Satyanarayana Murthy, the fact was that during the trial of charges under Sections 7 and 13 (1)(d)(i) and (ii) and Section 13(2) of the Act, the prosecution examined seven witnesses and also adduced documentary evidence in support of the charges. But the complainant therein had died pr....
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....to be proved to record a conviction. In C.P. Rao, which is the second of the two cases referred to in P. Satyanarayana Murthy, it was observed by this Court that mere recovery by itself would not prove the charge against the accused. In the absence of any evidence to prove the payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, the conviction could not be sustained. (v) Both the above judgments in B. Jayaraj and P. Satyanarayana Murthy are rendered by Benches of Three Judges and in the Order of Reference, it is stated that the same are in conflict with M. Narasinga Rao which is also a judgment by a Bench of three judges of this Court. (C) M. Narasinga Rao (i) In M. Narasinga Rao, K.T. Thomas, J. writing the judgment for the Bench raised the question as to, whether, a legal presumption can be based on a factual presumption. It was observed that a factual presumption is discretionary and depends upon the exercise of discretion by the Court whereas a legal presumption has to be compulsorily raised. It was further observed that Section 20 of the Act envisaged a legal presumption which means that on the proof....
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....s Court sounded a note of caution by stating that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. Reliance was placed on Suresh Budharmal Kalani vs. State of Maharashtra (1998) 7 SCC 337 ("Suresh Budharmal Kalani"), wherein it was observed that a presumption can be drawn only from facts - by a process of probable and logical reasoning and not from other presumptions. (iv) This Court on the facts established in said case observed that the circumstances preceding and succeeding the discovery of tainted currency notes in the appellant's pocket helped the Court to draw a factual presumption that the appellant therein had willingly received the tainted currency notes. (v) Relying upon Hazari Lal vs. State (Delhi Admn.) (1980) 2 SCC 390 ("Hazari Lal"), this Court reasoned on the facts of that case that in the absence of direct evidence to show that the public servant had demanded or accepted the bribe, no presumption under Section 4 of the 1947 Act (Section 20 of the Act) could be drawn merely based on the recovery of the marked currency notes. Speaking for a Bench of two judges, O. Chinnappa....
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....the evidence on record, for instance, the complainant's visit to the Anti-Corruption Bureau, his producing currency notes and the superior officer of the department making a trap arrangement, and the raiding party going to the house of the accused indicated that a prior demand for payment was made by the accused and the same was circumstantial evidence. 12. In the aforesaid cases, the common thread which runs through is that the complainant was not available to let in evidence and hence, there was absence of direct evidence. In B. Jayaraj the complainant did not support the prosecution and hence was declared "hostile"; in P. Satyanarayana Murthy, the complainant had died prior to the examination of seven witnesses while in M. Narasinga Rao the prosecution witnesses had turned "hostile". Therefore, in B. Jayaraj and in P. Satyanarayana Murthy the Court acquitted the accused while in M. Narasinga Rao despite two witnesses being declared as "hostile", on facts, it was found that the accused therein had willingly received the tainted currency notes and hence, this Court sustained the conviction of the accused. It was observed that despite two prosecution witnesses turning "hostile",....
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....nment the offer emanates from the public servant, i.e., he makes a demand and the bribe giver accepts the offer and pays the demanded gratification which is, in turn, received by the public servant. Thus in the case of obtainment, there is a prior demand for illegal gratification made by the public servant and in such a case also, both the demand and receipt of illegal gratification have to be proved. This act of a public servant is an offence under Section 13(1)(d)(i) and (ii) and therefore, a prior demand by the public servant is a sine qua non for an offence under Section 13(1)(d)(i) and (ii). In this regard, reliance was placed on the judgment of this Court in B. Jayaraj; P. Satyanarayana Murthy; Kishan Chand Mangal; C.K. Damodaran Nair and Kishan Chander. (iv) Thus, if there is a demand followed by a receipt by the public servant, the act of obtainment under Section 13(1)(d)(i) and (ii) is complete. It is then not necessary to prove "motive or reward" as the same is foreign to Section 13(1)(d)(i) and (ii). Therefore, Section 20 of the Act does not pertain to a legal presumption to be raised for an offence under Section 13(1)(d)(i) and (ii). (v) It was further....
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....rency notes are found in the possession of a public servant in a trap case, there can be a presumption under Section 114 of the Act that he might have received it. But this is a rebuttable presumption and the accused can rebut this presumption by offering his explanation for the possession of the tainted notes. The said presumption is a presumption of fact. However, there can be no presumption of demand as such. In other words, the demand as a matter of fact cannot be presumed under Section 114 of the Evidence Act, unless for such a presumption to be made, the foundational facts are proved and such foundational facts unerringly point to the irresistible and only conclusion of proof of demand. This would imply that mere recovery of the tainted notes from the possession of the accused would not give rise to a presumption of demand. In this regard reference was made to B. Jayaraj and a recent judgment of this Court in K. Shanthamma vs. State of Karnataka (2022) 4 SCC 574 ("K. Shanthamma"). (ix) It was next submitted that Section 7 of the Act speaks of acceptance or obtainment or an agreement to accept or an attempt to obtain. Further, the expression "acceptance" must be diffe....
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....nd receipt of illegal gratification by the public servant and both these facts should be proved beyond reasonable doubt. The fact of demand could be proved by oral evidence. However, in the absence of complainant's evidence to prove obtainment or an attempt to obtain, the presumption under Section 20 cannot arise. Further, if such obtainment or attempt was witnessed by some other witness, then that witness can prove the said fact even in the absence of the bribe giver being available to be let in as evidence. (xiii) On the other hand, in the case of acceptance or agreement to accept the gratification, the offer should have been made by the de facto complainant and the accused-public servant should have accepted the offer. In this case, there is no prior demand by the public servant. Therefore, even if there is proof through other evidence that the public servant received some property from the de facto complainant, that will not automatically go to prove acceptance in terms of Section 7 of the Act. In other words, mere receipt of a property by a public servant does not amount to either acceptance or obtainment. To convert the receipt to acceptance in terms of Section 7 of ....
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....blic servant alleged by the prosecution is a sine qua non in order to establish the guilt of the accused public servant. That mere acceptance of or the recovery of tainted notes is not sufficient to bring home the guilt of the accused as the prosecution has to first prove that demand of illegal gratification was made by the accused. Thereafter, the subsequent acceptance and recovery of the tainted notes would complete the chain of circumstances to bring home the guilt of the accused. In this regard, learned senior counsel placed reliance on State of U.P. vs. Ram Asrey 1990 Supp SCC 12 ("Ram Asrey"); Mukhtiar Singh vs. State of Punjab; (2017) 8 SCC 136 ("Mukhtiar Singh"); M.R. Purushotam vs. State of Karnataka (2015) 3 SCC 247 ("M.R. Purushotam"); C.M. Sharma vs. State of Andhra Pradesh (2010) 15 SCC 1 ("C.M. Sharma"); State of Maharashtra vs. Dhyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200 ("Dnyaneshwar Laxman Rao"); Sukumaran vs. State of Kerala (2015) 11 SCC 314 ("Sukumaran") and Sunkanna vs. State of Andhra Pradesh (2016) 1 SCC 713 ("Sunkanna"). 16. Learned Counsel Shri Raghenth Basant contended that in P. Satyanarayana Murthy, it has not been laid as a principle of law tha....
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....cused had demanded a bribe from the complainant. The factum of demand can be either proved by direct evidence or through circumstantial evidence. 21. Shri Sushil Kumar Jain, learned senior counsel also submitted that the demand of a valuable thing or pecuniary advantage either for himself or for some other person is a necessary ingredient or a sine qua non to bring home a conviction under Sections 7 and 13(1)(d). The demand can be proved either by direct oral evidence or documentary evidence. That the presumption under Section 20 is applicable only in respect of offences under Sections 7, 11 and Section 13(1)(a) and (b) since the demand is a part of the word "obtain". However, this foundational fact has to be proved and cannot be presumed. So also, with regard to the word "accepted", the demand must be proved. That Section 20 is akin to Section 4 of the 1947 Act and prior to the Act coming into force, the offences against corrupt public servants were also covered under Sections 161 and 165 A of the IPC. Section 4 of the 1947 Act prescribed the statutory presumptions for offences under Sections 161 and 165 of the IPC. By Section 31 of the Act, Sections 161 to 165 (A) were repeale....
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....ainant's evidence is unavailable. He submitted that proof does not mean proof in the sense of a rigid and mathematical demonstration, as that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion. In reaching the conclusion, the court can use the process of inferences to be drawn from the facts produced or proved and such inferences are akin to presumptions in law. That a presumption of fact can be made by a court of law by exercise of discretion, having regard to the common course of natural events, human conduct, public or private business in relation to the facts of the particular case. This discretion is envisaged in Section 114 of the Evidence Act. A presumption can thus be drawn on proof of certain facts. Also, a presumption is not a final conclusion to be drawn from other facts. A presumption of certain facts would remain until such inference is either disproved or dispelled. Unless the presumption is disproved or dispelled or rebutted the court can treat the presumption as tantamounting to proof. However, a presumption can be drawn only from facts and not from other presumptions by a process of probable and logical rea....
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....n independent witness whose evidence can be the basis for passing an order of conviction. Question for consideration: 28. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under: "1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?" In order to answer the aforesaid question, it would be useful to recapitulate the relevant provisions of the law of evidence vis-à-vis tendering of oral and documentary evidence; presumptions and circumstantial evidence. Thereafter to analyse the three cases and also other cases cited at the Bar in the background of the question raised and to derive a conclusion from the said discussion. Relevant provisions of Law of Evidence - A discussion: 29. Since the main thrust of this case is on the quality of evidence for proof of demand and acceptance of an illegal grati....
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.... of a fact in issue without any inference of presumption. On the other hand, "indirect evidence" or "substantial evidence" gives rise to the logical inference that such a fact exists, either conclusively or presumptively. The effect of substantial evidence under consideration must be such as not to admit more than one solution and must be inconsistent with any explanation that the fact is not proved. By direct or presumptive evidence (circumstantial evidence), one may say that other facts are proved from which, existence of a given fact may be logically inferred. 34. Again, oral evidence can be classified as original and hearsay evidence. Original evidence is that which a witness reports himself to have seen or heard through the medium of his own senses. Hearsay evidence is also called derivative, transmitted, or second-hand evidence in which a witness is merely reporting not what he himself saw or heard, and not what has come under the immediate observation of his own bodily senses, but what he has learnt in respect of the fact through the medium of a third person. Normally, a hearsay witness would be inadmissible, but when it is corroborated by substantive evidence of other wi....
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....n. If that person does not, himself, state such information, such evidence would be inadmissible being hearsay evidence. On the other hand, forensic procedure as circumstantial or inferential evidence or presumptive evidence (Section 3) is indirect evidence. It means proof of other facts from which the existence of the fact in issue may be logically inferred. In this context, the expression "circumstantial evidence" is used in a loose sense as, sometimes, circumstantial evidence may also be direct. 40. Although the expression "hearsay evidence" is not defined under the Evidence Act, it is, nevertheless, in constant use in the courts. However, hearsay evidence is inadmissible to prove a fact which is deposed to on hearsay, but it does not necessarily preclude evidence as to a statement having been made upon which certain action was taken or certain results followed such as evidence of an informant of the crime. 41. At this stage, it must be distinguished that even with regard to oral evidence, there are sub-categories - primary evidence and secondary evidence. Primary evidence is an oral account of the original evidence i.e., of a person who saw what happened and gives an acco....
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....h copies; (iii) Copies made from or compared with the original; (iv) Counterparts of documents as against the parties who did not execute them; (v) Oral accounts of the contents of a document given by some person who has himself seen it. 44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence. Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised ....
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....ts"). Further, the question as to whether the presumption stood rebutted or not must, therefore, be determined keeping in view the other evidence on record. [Krishna Janardhan Bhat vs. Dattatraya G Hegde (2008) 4 SCC 54 ("Krishna Janardhan Bhat")]. 48. Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression "shall be presumed" in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the Section is satisfied. The only condition for drawing a legal presumption under Section 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. 49. In....
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....occur in this provision make it clear that the presumption has to be rebutted by "proof" and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material brought before it, the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. 51. One of the modes through which a fact can be proved. But, that is not the only mode envisaged under the Evidence Act. Proof of the fact depends upon the degree of probability of it having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. 52. As opposed to the expressions "may presume" and "shall presume", the expression "conclusive proof" is also used in Section 4 of the Evidence Act. When the law says that a particular kind of evidence would be conclusive, that fact can be proved either by that evidence or by some other evidence that the court permits or requires. When evidence which is made c....
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....ct in issue that, taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. 55. It is trite law that in cases dependent on circumstantial evidence, the inference of guilt can be made if all the incriminating facts and circumstances are incompatible with the innocence of the accused or any other reasonable hypotheses than that of his guilt, and provide a cogent and complete chain of events which leave no reasonable doubt in the judicial mind. When an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. If the combined effect of all the proven facts taken together is conclusive in establishing the guilt of the accused, a conviction would be justified even though any one or more of those facts by itself is not decisive. (Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 ("Sharad Birdhichand Sarda") as reiterated in Prakash vs. State of Rajasthan (2013) 4 SCC 668 ("Prakash")). 56. In Kundan Lal Ralla....
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....of charge in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. It was also held that proof of demand is an indispensable mandate for the offence under Sections 7 and 13 of the Act. On the facts of the said case, it was held that the same was absent and the accused was liable to be acquitted. 59. In all the cases leading to the reference, it is either the death or the refusal to support the prosecution case that has led to the legal presumption under Section 20 of the Act not being raised and not bringing home the guilt of the accused. 60. Learned ASG and counsel also drew our attention to the following precedents: (i) In the case of State of Andhra Pradesh vs. V. Vasudeva Rao (2004) 9 SCC 319 ("V. Vasudeva Rao"), this Court, in the absence of the complainant due to his death proceeded to convict the accused based on the evidence available on record and further held that for the purpose of reaching a conclusion, the court can rely on factual presumption under section 114 of the Evidence Act. A fact may also be proved by direct testimony or by circumstantial evidence. (ii) In Ki....
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....d. Similarly, in N. Sunkanna, the accused was acquitted on the ground that the witness had turned "hostile" and the demand was not proved. So also, in the case of M.R. Purushotam. 62. Learned counsel Shri Aristotle also made reference to C.M. Sharma wherein the conviction was upheld even though the shadow witness was not present when the demand for illegal gratification was made and the amount was paid and there was recovery of tainted money. So also, in Prakash Chand vs. State (Delhi Admn.) (1979) 3 SCC 90 ("Prakash Chand") when the shadow witness turned "hostile", the conviction was based on the evidence of other witnesses. Therefore, even in the absence of a complainant letting in his evidence or the complainant turning "hostile", the case of the prosecution would not collapse and the prosecution can only prove the case beyond reasonable doubt if there is other evidence to prove the case. 63. Before answering the question under reference, we deem it necessary to clarify on one aspect of the matter and that is with regard to "hostile witness". 64. Learned senior counsel Shri Nagamuthu submitted that the expression "hostile witness" must be read in the context of Section ....
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....aracter. It was observed in paragraph 33 that the rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable witness" and by attempting to draw a distinction between the two categories. A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him, and an "unfavourable witness" is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact. In the context of Sections 142 and 154 of the Evidence Act, this Court observed in paragraphs 38 and 52 as under: "38. To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whethe....
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.... a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence. 68. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act. (b) In order to bring home the guilt of the accused....
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....cts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a p....