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TMI Blog2022 (12) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... ita 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. Somashekar Narayana, Adv., Mr. Uday ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 complainant, sustained the conviction of the accused by relying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal 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 or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fice 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 accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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" for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or that he obtained for any person any valuable thing or pecuniary advantage without any public interest. It was further observed with reference to Ram Krishan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording 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 A.P. (2015) 10 SCC 152 ("P. Satyanarayana Murthy") with the decision in M. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691 ("M. Narsinga Rao") with regard to the nature and quality of proof necessary to sustain a conviction under Section 7 and Section 13(2) read with Section 13(1)(d) of the Act when the primary evidence of the complainant is unavailable. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 prior thereto and therefore, could not be examined by the prosecution. According to the complainant, he was disinclined to pay the illegal gratification as demanded by the public servant and hence had filed the complaint with the Deputy Superintendent of Police, Anti-Corruption Bureau, Kurnool and sought action against the appellant in the said case. (ii) This Court by placing reliance on B. J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. (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 of certain facts, the court "shall presume" other facts. But when there is no direct evidence for establishing the primary fact or the fact in issue, the Court has to depend upon the process of inference drawn from other facts to reach the said primary fact. The crux of the question involved therefore was whether an inference made could be used as a premise for the compulsory presumption envisaged in Section 20 of the Act. (ii) In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 Reddy, J. in Hazari Lal further observed that it was not necessary that the passing of money should be proved by direct evidence as it could also be proved by circumstantial evidence. Also, under Section 114 of the Evidence Act, the Court may presume the existence of any fact which happened in the common course of natural events, human conduct and public and private business. The accused in Hazari Lal had taken the currency notes from his pocket and flung them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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", it was established by other evidence that there was a demand of illegal gratification. Since the foundational facts were proved, the presumption for payment or acceptance of the same was applicable, which was not rebutted. Consequently, the legal presumption under Section 20 of the Act was also raised and remained unrebutted. In the above said backdrop the reference was made to the larger Bench and ultimately to the Constitution Bench. Submissions: 13. We have heard the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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 submitted that in the case of obtainment, receipt of gratification in pursuance of the demand must also be proved as a fact in issue. That in the absence of proof of receipt of gratification, mere demand does not constitute an offence under Section 13(1)(d)(i) and (ii). But if demand is construed as an attempt, then such an attempt to obtain is an offence under Section 7 of the Act. (vi) Further under Section 13(1)(d)(i) and (ii), obtainment could be proved by (i) oral evidence; (ii) documentary evidence; (iii) sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption 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 differentiated from the expression "receipt" as they convey different meanings in the context of Section 7 of the Act. That Section 7 of the Act does not speak of receipt but only of acceptance. In order to convert receipt into acceptance, it should be proved that a demand is made from the bribe giver. In other words, the bribe giver should have offered the gratification while demanding a favour from the public servant. (x) Therefore, the mere receipt of any property or valuable security would not tantamount to acceptance unless the bribe giver had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Act, it should be proved that an offer preceded the receipt; and in the case of obtainment, the receipt should be preceded by a demand by the public servant. (xiv) With reference to M. Narasinga Rao, it was contended that this Court has not dealt with the difference between Section 7 and Section 13(1)(d) of the Act and with regard to the difference between acceptance and obtainment and also the nonapplicability of the presumption under Section 20 in a case which falls under Section 13(1)(d) of the Act. (xv) According to learned senior counsel Shri Nagamuthu, M. Nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y"); 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 that in every case where the complainant is dead, demand cannot be proved at all. That other evidence adduced by the prosecution can be considered to come to a conclusion, where there is proof beyond reasonable doubt. 17. It was contended that there was an erroneous assumption in P. Satyanarayana Murthy, wherein it was observed that only direct evidence is a sine qua non for proving a case under Sections 7, 13(1)(d)(i) and (ii) of the Act. The Division Bench as well as the three judge Bench therefore, referred the matter to the larger bench. But that is not the position. In fact, in B. Jayaraj, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 repealed and are now covered by Sections 7 and 11 of the Act. The Act is a special statute and a complete code by itself. 22. Learned senior counsel further urged that under the criminal jurisprudence in India, there is always a presumption of innocence until the guilt is proved and there is no presumption of guilt. Therefore, there has to be proof beyond reasonable doubt of a demand and its acceptance so as to bring home the guilt of the accused. In this regard, reliance was placed on para 18 of M. Narasinga Rao. 23. Ms. Aishwarya Bhati, learned ASG drew our attention to the report of the Committee on the Prevention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 reasoning. As opposed to presumptions on facts, there is what is known as legal presumption which is a compulsory presumption such as under Section 20 (1) of the Act. That under Section 20 of the Act, it could be a presumption that the accused accepted or agreed to accept any gratification as a motive or reward for doing or forbearing to do any official act. Hence, the conditions envisaged under Section 20 have to be satisfied before raising a presumption against the accused, namely that the accused has accepted or agreed to accept any illegal gratification. This proof need not be through direct evidence which is only one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid 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 gratification before a public servant can be held guilty of an offence under Section 7 and/or Section 13(1)(d) of the Act, it would be appropriate to discuss the salient principles of law of evidence relevant to the question under consideration. In this context, it would be necessary to refer to Sections 3, 4, 59, 60, 61, 62, 63, 64, 65 and 154 of the Evidence Act. 30. Congruent to the principle of res gestae, a fact includes a state of things or events as well as the mental state i.e. intention or animus. A fact in law of evidence includes the factum probandum i.e., the principal fact to be proved and the factum probans, i.e., the evidentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 witnesses, it would be admissible vide Mukhtiar Singh. 35. Evidence that does not establish the fact in issue directly but throws light on the circumstances in which the fact in issue did not occur is circumstantial evidence (also called inferential or presumptive evidence). Circumstantial evidence means facts from which another fact is inferred. Although circumstantial evidence does not go to prove directly the fact in issue, it is equally direct. Circumstantial evidence has also to be proved by direct evidence of the circumstances. Further, letting in evidence should be in accordance with the provision of the Evidence Act by the examination of witn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 account of it recorded by the court, or the original document itself, or the original thing when produced in court. Secondary evidence is a report or an oral account of the original evidence or a copy of a document or a model of the original thing. 42. Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence. When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act. Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 at any later stage of the case or in appeal vide Amarjit Singh vs. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) ("Amarjit Singh"). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence. 45. The cases in which secondary evidence relating to documents may be given are stated in Section 65 of the Evidence Act read with Section 66, Section 67(2), Section 78. Proof of documents, whether public or private, including execution of such documents etc. Presumptions: 46. Courts are authorised to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61 ("A. Vaidyanatha Iyer"), it was observed that the presumption under Section 4(1) of the 1947 Act which is similar to Section 20 of the Act under consideration would arise where illegal gratification has been accepted, then the presumption introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. The legislature has used the words "shall presume" and not "may presume" which means that the presumption has to be raised as it is a presumption of law and therefore it is obligatory on the court to raise this presumption. Further, the presumptions of law constitute a branch of jurisprudence unlike a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 conclusive is adduced, the court has no option but to hold that the fact exists. For instance, the statement in an order of the court is conclusive of what happened before the presiding officer of the court. Thus, conclusive proof gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to combat that effect. When a statute makes certain facts final and conclusive, evidence to disprove such facts is not to be allowed. Circumstantial Evidence 53. As already noted, all evidence let in before the court of law are classified either as direct or circumstantial evidence. "Direct evidence" means when the principal fact is attested directly by witnesses, things or docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rallaram vs. The Custodian, Evacuee Property Bombay AIR 1961 SC 1316 ("Kundan Lal Rallaram"), this Court speaking though K. Subba Rao, J. observed that the rules of evidence pertaining to burden of proof are embodied in Chapter 7 of the Evidence Act. The phrase "burden of proof" has two meanings :- one, the burden of proof as a matter of law and pleading and the other, the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence i.e., oral or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh 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 Kishan Chand Mangal, this Court upheld the conviction based on the evidence of the shadow witnesses. Similarly in State of Andhra Pradesh vs. P. Venkateshwarlu (2015) 7 SCC 283 ("P. Venkateshwarlu"), when the complainant died during the pendency of the trial, this Court convicted the accused by relying upon the evidence of the other witnesses, as the factum of demand, acceptance and recovery of the tainted money was proved by the prosecution. (iii) In contradiction to the aforesaid cases, our attention was drawn to Selvaraj vs. State of Karnataka (2015) 10 SCC 230 ("Selvaraj"), wherein on the death of the complainant, acquittal was ordered as the accused was relieved from his duty and was not competent to transact any official business apart from the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 154 of the Evidence Act. Section 154 of the Evidence Act states that the court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. It further states that the Section does not disentitle the person so permitted to rely on any part of the evidence of such witness. For immediate reference, Section 154 of the Evidence Act is extracted as under: "154. Question by party to his own witness.- (1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. (2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , "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". Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath vs. Prasannamoyi AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature. 69. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or "primary evidence" of the complainant is unavailable owing to his death or any other r ..... 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