TMI Blog2022 (12) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... 67(2), Section 78. Proof of documents, whether public or private, including execution of such documents etc. 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. In STATE OF MADRAS VERSUS A. VAIDYANATHA IYER [ 1957 (9) TMI 63 - SUPREME COURT] , it was observed that the presumption under Section 4(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns hostile is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases. The question referred for consideration of this Constitution Bench is answered as:- In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is 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 the Act based on other evidence adduced by the prosecution. - Criminal Appeal Nos. 678 of 2021, 1490 of 2021, 1592 of 2022 S. Abdul Nazeer, B.R. Gavai, A.S. Bopanna, V. Ramasubramanian, B.V. Nagarathna, JJ. For the Appellant : Mr. S. Nagamuthu, Sr. Adv., Mr. Satinder S. Gulati, Adv., Mr. Raj Kishor Choudhary, AOR, Mr. S. Nagamuthu, Sr. Adv., Mr. A.S. Vairawan, Adv., Mr. R. Sudhakaran, Adv., Mr. G.R. Vikash, Adv., Mr. D. Subrahmanya Bhanu, Adv., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Shivam Jasra, Adv., Mr. K.M. Nataraj, ASG, Mr. Sharath Nambiar, Adv., Mr. Digvijay Dam, Adv., Ms. Indira Bhakar, Adv., Mr. Manvendra Singh, Adv., Mr. Abhijeet Singh, Adv., Ms. Poornima Singh, Adv., Ms. B.L.N. Shivani, Adv., Mr. Aman Sharma, Adv., Mr. Kartik Jasra, Adv., Mr. Randeep Sachdeva, Adv., Ms. Shreya Jain, Adv., Mr. Harish Nadda, Adv., Mr. Shivam Jasra, Adv., Mr. Gurmeet Singh Makker, AOR, Mr. Basava Prabhu S. Patil, Sr. Adv., Mr. Geet Ahuja, Adv., Mr. Samarth Kashyap, Adv., Mr. Anirudh Sanganeria, AOR, Mr. Ardhendumauli Kumar Prasad, Addl.A.G., Mr. Ajay Pal, AOR, Mr. Harsh Parashar, AOR, Mr. Nishe Rajen Shonker, AOR, Ms. Anu K. Joy, Adv., Mr. Alim Anvar, Adv., Mr. Abraham C. Mathews, Adv., Mr. Shubhranshu Padhi, AOR, Dr. Joseph Aristotle S., AOR, Ms. Nupur Sharma, Adv., Mr. Shobhit Bhardwaj, Adv., Mr. Sanjeev Kr. Mahara, Adv., Ms. Vaidehi Rastogi, Adv., Mr. Saurabh Mishra, AAG, Mr. Abhinav Shrivastava, Adv., Mr. Sunny Choudhary, AOR, Mr. Sandeep Sharma, Adv., Mr. Shivang Rawat, Adv., Ms. Radhika Jalan, Adv., Mr. Prakash Kumar, Adv., Mr. Mahfooz A. Naski, AOR, Mr. Polanki Gowtham, Adv., Mr. Shaik Mohamad Haneef, Adv., Mr. T. Vijaya Bhaskar Reddy, Adv., Mr. K.V. Girish Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o three-judge benches of this Court, in the cases of B. Jayaraj vs. State of Andhra Pradesh, (2014) 13 SCC 55; and P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and Another, (2015) 10 SCC 152, are in conflict with an earlier three-judge bench decision of this Court in M. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691, regarding the nature and quality of proof necessary to sustain a conviction for the offences under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 when the primary evidence of the complainant is unavailable. 6. We therefore consider it appropriate to refer the question of law framed to be decided by a bench of appropriate strength. The Registry is directed to place the papers before the Chief Justice of India for appropriate orders. 2. Thus, the moot question that arises for answering the reference is, in the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence. This is because in the absence of proof of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) Gratification . The word gratification is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) Legal remuneration . The words legal remuneration are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) A motive or reward for doing . A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section. xxx xxx xxx Section 13 Criminal misconduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt may decline to draw the presumption referred to in either of the said subsections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn. 4. The following are the ingredients of Section 7 of the Act: i) the accused must be a public servant or expecting to be a public servant; ii) he should accept or obtain or agrees to accept or attempts to obtain from any person; iii) for himself or for any other person; iv) any gratification other than legal remuneration; v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour. 5. Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant, namely, - (i) the accused must be a public servant; (ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That was a case under the Prevention of Corruption Act, 1947 ( 1947 Act for the sake of convenience). Speaking of a charge under Section 7 of the Act, it was held that the prosecution was required to prove that: (i) the appellant was a public servant at the material time; (ii) the appellant accepted or obtained a gratification other than legal remuneration; and (iii) the gratification was for illegal purpose. While discussing the expression accept , it was observed that accept means to take or receive with a consenting mind . Consent can be established not only by leading evidence of prior agreement but also from the circumstances surrounding the transaction itself without proof of such prior agreement. If an acquaintance of a public servant in expectation and with the hope that in future, if need be, would be able to get some official favour from him, voluntarily offers any gratification and if the public servant willingly takes or receives such gratification it would certainly amount to acceptance . Therefore, it cannot be said, as an abstract proposition of law, that without a prior demand, there cannot be acceptance . The position will, however, be different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 7 and Section 13(1)(d) (i) and (ii) of the Act. The complainant therein disowned making the complaint and had stated in his deposition that the amount of Rs.250/- was paid to the accused with a request that the same may be deposited in the bank as fee for the renewal of his licence. The complainant was not willing to support the case of the prosecution. The complainant was therefore declared hostile . This Court observed that the complainant did not support the case of the prosecution insofar as demand made by the accused for the bribe is concerned and the prosecution did not examine any other witness present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant had disowned what he had stated in the initial complaint and in the absence of any other evidence to prove that the accused had made any demand, the evidence of the complainant therein and the complaint (Exh. P-11) could not be relied upon to come to the conclusion that the above material furnished proof of the demand allegedly made by the accused. The only other material available was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould thereby fail. In other words, mere acceptance of any amount by way of illegal gratification or recovery thereof dehors the proof of demand, ipso facto would not be sufficient to bring home the charge under the said Sections of the Act. It was observed that in the absence of proof of demand, a legal presumption under Section 20 the Act would also not arise. (iii) It was further observed that the material on record in the said case when judged on the touchstone of the legal principle discussed, left no doubt that the prosecution in the said case had failed to prove unequivocally the demand of illegal gratification and thus, the prosecution and the conviction of the appellant under Section 13(1)(d)(i) and (ii) read with section 13(2) of the Act was not sustainable. (iv) In P. Satyanarayana Murthy, reference was made to two cases, namely, A. Subair vs. State of Kerala (2009) 6 SCC 587 ( A. Subair ) and State of Kerala vs. C.P. Rao (2011) 6 SCC 450 ( C.P. Rao ). In the first of the aforesaid two cases, it was observed that the prosecution has to prove the charge under Sections 7 and 13(1)(d) of the Act like in any criminal offence and that the accused should be consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over by the appellant and that is why they turned against their own version recorded by the investigating officer and subsequently by a Magistrate under Section 164 of the CrPC. (iii) In the said case, this Court made a detailed discussion of the expressions may presume and shall presume as defined in Section 4 of the Evidence Act. This Court observed that the word proof means such evidence as would induce a reasonable man to come to a particular conclusion. It was further observed that a presumption is an inference of a certain fact drawn from other proved facts. The Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. A presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in the law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts, the court can draw an inference and that would remain until such inference is either disproved or dispelled. It was held that, for the purpose of reaching one conclusion, the court can rely on a factual presumption. Unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r payment or acceptance of gratification and once the foundational facts were proved the presumption for payment or acceptance of illegal gratification was applicable. As the said presumption of fact was not rebutted by the accused the fact of demand was proved. Consequently, the legal presumption was to be drawn that the said gratification was accepted as a motive or reward for doing or forbearing to do any act as per Section 20 of the Act. (vii) It was further observed in the said case that the prosecution had proved that the appellant therein had accepted gratification. Therefore, the Court was under a legal compulsion to draw the legal presumption that such gratification was accepted as a reward for doing the public duty. It was further observed that the two witnesses examined on the defence side were unable to rebut the presumptions raised and hence, this Court dismissed the appeal and held the accused to be guilty. 11. Another judgment referred to in the Reference Order which is a case which arises under the 1947 Act is Kishan Chand Mangal vs. State of Rajasthan (1982) 3 SCC 466 ( Kishan Chand Mangal ). In the said case, it was observed that it was a case of entra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if his evidence is not available, it would imply that there is no direct oral evidence of the said witness to prove the aforesaid two facts. The issue before the Constitution Bench is, whether, the aforesaid two facts could be proved by any other mode in the absence of direct evidence so that the guilt of the public servant could be brought home. In this regard, our attention was drawn to Sections 7, 13(1)(d)(i) and (ii) and 20 of the Act as they stood prior to the amendment of the Act. Much emphasis was laid on the expression accept or obtain or agrees to accept or attempt to obtain . (ii) In the context of Section 20 of the Act which deals with raising the legal presumption with regard to motive or reward, elaborate arguments were made on the difference between acceptance or obtainment. It was submitted that, in both cases, there is an offer and acceptance of the offer. If the offer emanates from 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 as per Section 7 of the Act. In the case of acceptance, as dealt with in Section 7 of the Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any other evidence, the accused is entitled to acquittal. However, if the demand is evidenced by any document such as demand being made through email, letter or any other communication, the said fact could be proved by documentary evidence in the absence of any direct or oral evidence although the complainant or the person to whom the demand has been made is not available to let in evidence. (vii) It was further submitted by Shri. Nagamuthu, learned senior counsel that Section 20 of the Act mandates a presumption to be made by the court which is in the nature of a legal presumption. The presumption in relation to any illegal gratification accepted or obtained or agreed to be accepted or deemed to be obtained as motive or reward , as per Section 7 of the Act, is a restricted and conditional presumption. The said presumption can be raised only on a proof of acceptance or obtainment or agreement to accept or attempt to obtain the illegal gratification and is not a presumption of guilt of an offence. (viii) That the legal presumption that could be raised under Section 20 of the Act is in contradiction to a presumption that could be raised under Section 114 of the Evidence Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 114 of the Evidence Act in the absence of foundational facts being proved. (xi) It was submitted by Shri Nagamuthu, learned senior counsel that once acceptance or obtainment or agreement to accept or attempt to obtain is proved, then the presumption under Section 20 vis-avis motive or reward could be raised in the context of Section 7 of the Act. But, acceptance or obtainment or an agreement to accept or an attempt to obtain cannot be established by means of a presumption in the absence of foundational facts. The reason why Section 20 raises a legal presumption is in order to prove mens rea of the accused, namely, that the public servant knew that he had received illegal gratification as a motive or reward . Since, this fact is difficult to be proved by direct oral evidence or documentary evidence, the Parliament in its wisdom has incorporated Section 20 of the Act with a mandate to the Court to presume the illegal gratification as only a motive or reward . Of course, such legal presumption is also rebuttable. (xii) Coming to the actual question raised before the Constitution Bench, it was submitted by the learned senior counsel Shri Nagamuthu that the act of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Murthy, learned senior counsel contended that only a presumption of fact of conduct can be raised as per Section 4 of the Evidence Act. That in the said case, the complainant turned hostile and there was no other direct evidence to prove the demand but that the tainted currency notes were recovered from the accused. That in the absence of proof of demand for illegal gratification, the use of corrupt or illegal means by public servants to obtain a valuable thing or pecuniary advantage was not established at all. (xvi) Learned senior counsel placed reliance on Kishan Chand Mangal to submit that as per the Woolmington principle, there should be proof beyond reasonable doubt and the said principle would apply under the Act under consideration. That there cannot be any inference of guilt and that only presumptions could be raised, as per Section 4 of the Evidence Act, based on the foundational facts being proved beyond reasonable doubt and in the absence of rebuttal evidence. In view of the aforesaid submissions, Shri Nagamuthu submitted that the question raised for consideration must be answered in the negative. 15. Shri M. Karpaga Vinayagam, learned senior counsel submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court concluded that even in the absence of direct evidence, the rest of the evidence adduced and the circumstances were sufficient to bring home the guilt of the accused. Reliance was placed on the following observation in support of the submission: But the other circumstance which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that the appellant had willingly received the currency notes. 19. In M. Narasinga Rao, this Court held that the prosecution has proved the case beyond reasonable doubt whereas in B. Jayaraj the prosecution was unsuccessful in proving so. Therefore, there is no conflict between the judgment in M. Narasinga Rao on the one hand and B. Jayaraj and P. Satyanarayana Murthy on the other. 20. That the presumption under Section 20 of the Act would apply only if the fact of demand and acceptance or of illegal gratification, as the case may be, is proved. Such a proof can be adduced even by way of circumstantial evidence in the absence of direct evidence. This would be so particularly in trap cases as the prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion intended to curb the illegal activities of public servants and is designed to be liberally construed so as to advance its object. Procedural delays and technicalities of law should not be permitted to defeat the objects sought to be achieved by the Act while interpreting various provisions of the Act and deciding cases under it. She further drew our attention to various decisions of this Court wherein despite the complainant having died or having turned hostile or not being available for letting in evidence, on the basis of the other evidence on record, conviction has been ordered. Many of the decisions referred to by her have been cited above. She submitted that even if the complainant turns hostile with regard to certain aspects of the evidence referred by him, his entire evidence cannot be discarded. 24. Learned ASG submitted that the judgments of this Court in B. Jayaraj and P. Satyanarayana Murthy have been correctly decided and the questions raised may accordingly be answered. 25. Learned ASG Shri J.K. Sud submitted that the issue before the Constitution Bench pertains to the proof of guilt of a public servant under Sections 7, 13(1)(d) read with Section 13(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tarily offers any gratification and if the public servant willingly takes or receives such gratification, it would amount to acceptance within the meaning of Section 161 of the IPC. 27. Dr. Joseph Aristotle, learned counsel submitted on behalf of the State of Tamil Nadu that the death or the non-availability of complainant or the complainant turning hostile are three instances when there would not be availability of complainant s direct evidence to bring home the guilt of the accused-public servant. That death or non-availability of the complainant would not vitiate the case of the prosecution as the incriminating circumstance of demand can be proved by circumstances even in the absence of the complainant. The quality of the evidence let in by the prosecution is more significant than the sole direct evidence of demand being spoken to. In the case of a trap, the court has to consider the ingredients of the factum of offences namely, acceptance of demand and recovery of tainted money in its entirety. Hence, the case of the prosecution does not come to an end with the death of the complainant, as even in the absence of a complainant, it is possible to prove the factum of demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 32. In criminal cases, the facts in issue are constituted in the charge, or acquisition, in cases of warrant or summon cases. The proof of facts in issue could be oral and documentary evidence. Evidence is the medium through which the court is convinced of the truth or otherwise of the matter under enquiry, i.e., the actual words of witnesses, or documents produced and not the facts which have to be proved by oral and documentary evidence. Of course, the term evidence is not restricted to only oral and documentary evidence but also to other things like material objects, the demeanour of the witnesses, facts of which judicial notice could be taken, admissions of parties, local inspection made and answers given by the accused to questions put forth by the Magistrate or Judge under Section 313 of the Criminal Procedure Code (CrPC). 33. Further, according to Sarkar on Law of Evidence, 20th Edition, Volume 1, direct or original evidence means that evidence which establishes the existence of a thing or fact either by actual production or by testimony or demonstrable declaration of someone who has himself perceived it, and believed that it established a fact in issue. Direct e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, are to be proved by the production of the documents themselves or, in their absence, by secondary evidence under Section 65 of the Act. Further, facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, or ill will need not be proved by direct testimony. It may be proved inferentially from conduct, surrounding circumstances, etc. (See Sections 8 and 14 of Evidence Act). 38. Insofar as oral evidence is concerned, this Court in State of Rajasthan vs. Babu Meena (2013) 4 SCC 206 ( Babu Meena ) has classified the same into three categories : (i) wholly reliable; (ii) wholly unreliable, and; (iii) neither wholly reliable nor wholly unreliable. While an accused can be convicted on the sole testimony of a wholly reliable witness, the uncorroborated evidence of a wholly unreliable testimony of a witness must result in an acquittal. 39. Section 60 of the Evidence Act requires that oral evidence must be direct or positive. Direct evidence is when it goes straight to establish the main fact in issue. The word direct is used in juxtaposition to derivative or hearsay evidence where a witness gives evidence that he received i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he secondary evidence must be allowed. Primary evidence is the best evidence and it affords the greatest certainty of the fact in question. Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence. What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents. Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original. 43. Section 62 of the Evidence Act defines primary evidence to mean the documents itself produced for the inspection of the court. If primary evidence is available, it would exclude secondary evidence. Section 63 of the Evidence Act deals with secondary evidence and defines what it means and includes. Section 63 mentions five kinds of secondary evidence, namely, - (i) Certified copies given under the provisions hereinafter contained; (ii) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mixed law and fact or presumptions of fact recognised by law . The expression may presume and shall presume in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of may presume while legal presumptions or compulsory presumptions come under the division of shall presume . May presume leaves it to the discretion of the court to make the presumption according to the circumstances of the case but shall presume leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression shall presume is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act. 47. Similarly in a trial under Section 138 of the Negotiable Instruments Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted vide Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a presumption as to the existence of one fact from the proof of another fact. This is unlike a presumption under Section 4(1) of the 1947 Act or Section 20 of the Act where the court has to draw such presumption, if a certain fact is proved, that is, where any illegal gratification has been received by an accused. In such a case the presumption that has to be drawn that the person received that thing as a motive of reward. Therefore, the court has no choice in the matter, once it is established that the accused has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to the accused to show that though that money was not due to him as a legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which is lawful. The burden resting on the accused in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words unless t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the inference of the principal fact from the evidence is only probable, whatever be the degree of persuasion which it may generate (Best, 11th Edition, Section 293). Thus, circumstantial evidence is evidence of circumstances as opposed to what is called direct evidence. The prosecution must take place and prove all necessary circumstances constituting a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence vide Navaneethakrishnan vs. State by Inspector of Police AIR 2018 SC 2027 ( Navaneethakrishnan ). 54. The principal fact can be proved indirectly by means of certain inferences drawn from its existence or its connection with other circumstantial evidence. It is often said that witnesses may lie but not the circumstances. However, the court must adopt a cautious approach while basing its conviction purely on circumstantial evidence. Inference of guilt can be drawn only when all incriminating facts and circumstances are found to be incompatible with the innocence of an accused. In other words, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e based on a factual presumption. In Hazari Lal, this Court through O. Chinnappa Reddy, J. observed that it is not necessary that the passing of money should be proved by direct evidence, it could also be proved by circumstantial evidence. Furthermore, in Madhukar Bhaskarrao Joshi vs. State of Maharashtra (2000) 8 SCC 571 ( Madhukar Bhaskarrao Joshi ), it was observed that in order to draw a presumption under Section 20 of the Act, the premise is that there was payment or acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted as a motive or reward for doing or forbearing to do any official act. 58. P. Satyanaratana Murthy has been referred to in State vs. Dr. Anup Kumar Srivastava (2017) 15 SCC 560 ( Dr. Anup Kumar Srivastava ) by observing that what constitutes illegal gratification is a question of law; whether on the evidence let in, crime has been committed or not is a question of fact. If, therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t effaced as the court must consciously ascertain as to what extent he has supported the case of the prosecution. The evidence of a hostile witness complainant stands on a different footing than the death of the complainant or the non-availability of the complainant. It was submitted that when the complainant turns hostile , the evidence of the shadow witness would play a vital role as he can also tender primary evidence with regard to the demand of illegal gratification. Similarly, Nayan Kumar Shivappa Waghmare vs. State of Maharashtra (2015) 11 SCC 213 ( Nayan Kumar Shivappa Waghmare ), was relied upon to buttress the fact that if the complainant turns hostile , the conviction is permissible on the basis of presumption and other evidence. On the other hand, in B. Jayaraj the acquittal was based on the fact that the complainant had turned hostile and there was no other witness to support the case of the prosecution and hence, there was lack of evidence against the accused. In C.P. Rao, the acquittal was based not merely on the nonavailability of the complainant but the fact that there was previous animosity between the complainant and the accused and also on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prosecution he cannot be declared to be a hostile witness and his evidence cannot be discarded as a whole. Although, permission may be given by the Court to such a witness to be cross-examined by the prosecution as per sub-section (2) of Section 154 of the Evidence Act, it is not necessary to declare such a witness as a hostile witness . This is because a statement of a hostile witness can be examined to the extent that it supports the case of prosecutor. 66. In this regard, our attention was drawn to Sat Paul vs. Delhi Administration (1976) 1 SCC 727 ( Sat Paul ) which is a case arising under the 1947 Act wherein this Court speaking through Sarkaria, J. has made pertinent observations regarding the credibility of a hostile witness. It was observed in paragraph 30 of the judgment that the terms hostile witness , adverse witness , unfavourable witness , unwilling witness are all terms of English law. At Common law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English courts. 52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto. 67. Therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 70. Accordingly, the question referred for consideration of this Constitution Bench is answered as under: In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is 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 the Act based on other evidence adduced by the prosecution. 71. We direct that individual cases may be considered before the appropriate Bench after seeking orders of Hon ble the Chief Justice of India. Before we conclude, we hope and trust that the complainants as well as the prosecution make sincere efforts to ensure that the corrupt public servants are brought to book and convicted so that the administration and governance becomes unpolluted and free from corruption. In this regard, we would like to reiterate what has been stated by this Court in Swatantar Singh vs. State of Haryana (1997) 4 SCC 14: 6. .. Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politic, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public ..... X X X X Extracts X X X X X X X X Extracts X X X X
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