CRLA/198/1983 of SHAMBHOO GIRI Vs STATE on 25 November 1999

JUDGMENT

Shambhoo Giri vs. State of Rajasthan (S.B.Criminal Appeal No.198/83)

Dated of Judgment:- 8[th] September,2006.

PRESENT

HON'BLE MR.JUSTICE MOHAMMAD RARIQ

Mr.Doongar Singh, Advocate for the appellant.Mr.Rameshwar Dave, Public Prosecutor for the State.

BY THE COURT:-

REPORTABLE

This criminal appeal has been filed by the appellant againstthe judgment dated 3.5.1983 passed by the learned Special Judge,N.D.P.S. Cases, Udaipur thereby convicting him for offence u/s 161 IPCand sentencing to undergo two years' Rigorous Imprisonment and a fineof Rs.250/- and also convicting him for offence under Section 5 (1)(D)(2)of the Prevention of Corruption Act, 1947( for short “the Act of 1947”) andsentencing to undergo two years' Rigorous Imprisonment and a fine ofRs.250/-. In default of payment of fine for both the convictions, theappellant was directed to further undergo six months' SimpleImprisonment.

Factual matrix of the case are that one Fakirchand resident of Lupdi submitted a written application to the Sub Divisional Magistrate,Pratapgarh( for short “the S.D.M.”) in which he alleged that headconstable Shambhu Giri posted in the Police Station, Arnod wasthreatening him to lodge more complaints against him under Section 110Cr.P.C. and was demanding a sum of Rs.200/- as illegal gratification.The S.D.M. kept the said application with him. However, one RaghurajSingh , Advocate went to the house of the S.D.M. during lunch hours andproduced before him currency notes of Rs.200/-. The S.D.M. put hissignatures on each of these currency notes which this Raghuraj Singhlater gave to Fakirchand. Complainant Fakirchand handed over saidcurrency notes to head constable Shambhu Giri. On being informed ofthis fact, the S.D.M. immediately called Shambhu Giri to his chamber andasked him to produce currency notes which he received from Fakirchand.Accused produced these notes in presence of Raghuraj Singh, Vinodi Laland one other person and handed over the notes to the S.D.M. Thesenotes contained signatures of the S.D.M. The S.D.M. prepared recoverymemo and thereafter sent the same with the currency notes to theCollector, Chittorgarh and also sent an information to the Superintendentof Police, Chittorgarh. The Anti Corruption Bureau thereupon registered acase u/s 161 IPC and Section 5(1))(D) and 5(2) of the Act of 1947 andlater on submitted a charge-sheet against the accused appellant in theCourt of Special Judge, Anti Corruption Cases, Udaipur . The learnedSpecial Judge vide his judgment dated 3[rd] May, 1983 convicted andsentenced the accused-appellant in the manner as indicated above.Hence this appeal.

I have heard Mr.Doongar Singh, learned counsel for theappellant and Mr.Rameshwhar Dave, learned Public Prosecutor for theState and perused the record.

Mr.Doongar Singh, learned counsel for the appellant hasargued that the learned Special Judge has committed illegality in relyingupon the alleged recovery of currency notes in as much as the S.D.M. hadno legal authority to hold the trap in relation to the cases under the Act of1947. He argued that while the application is alleged to have been handedover to the S.D.M. earlier, the currency notes were submitted to him atmuch later point of time. Case of the prosecution is that the applicationwas submitted to Kuldeep Singh, S.D.M. in his office and thereafterRaghuraj Singh, Advocate went to his residence during lunch hours togive him the currency notes while Fakirchand stood outside. On thisaspect however there were number of contradictions in the variousstatements of the prosecution witnesses. He invited attention of the Courtto the statement of P.W. 4 Fakirchand especially to the portion in whichhe stated that the accused demanded a sum of Rs.500/- whereas in theapplication submitted before the S.D.M., Fakirchand restricted thedemand of the accused to Rs.200/- only. It has been argued that P.W. 4Fakirchand in his statement admitted that when he gave Rs.200/- toaccused Shambhu Giri, Rama was also present with him at that time.Mr.Doongar Singh argued that defence of the accused-appellant was thatthe amount of Rs.200/- was given to him by Fakirchand for being given toHari Ram because Fakirchand owed some money to him(Hari Ram). Thisdefence was disclosed by the accused Shambhu Giri at the first available opportunity immediately when the S.D.M. asked him to produce currencynotes. D.W. 1 Rama whose presence has been admitted by none otherthan decoy Fakirchand himself has provided corroboration to this defencewhen he stated that Fakirchand gave this amount of Rs.200/- to accusedShambhu Giri in his presence for being paid to Hari Ram with the promisethat he would give remaining 200/- at a later stage. In his statement, D.W.1 Rama further stated that Hari Ram had given a contract of certainconstruction work for a total amount of Rs.1500/-,out of which he gaveRs.400/- in advance to Fakirchand, who however failed to execute thecontract . Hari Ram has been examined as D.W. 2. He was alsocorroborated the defence of the accused-appellant that he had given acontract to Fakirchand and paid advance and that this amount of Rs.200/-was given by Fakirchand to the accused Shambhu Giri to be paid to him.In his cross-examination,P.W. 6 Kuldeep Sharma has admitted this muchwhen the accused produced currency notes in his chamber he stated thatthis money was of their mutual affairs. He referred to cross-examinationof P.W. 7 Raghuraj Singh where he admitted that when Fakirchand gavethe money to Shambhu Giri, one more person was present with them andthat person according to the learned counsel was none other than D.W. 1Rama. He has placed very strong reliance on the last few lines of thecross-examination of P.W.7 Raghuraj Singh where he stated thataccused Shambhu Giri while producing currency notes before the S.D.M.stated that Fakirchand had given this money to him for giving it to HariRam because he had taken loan from him.

Reference has been made to the statement of P.W. 5

Reference has been made to the statement of P.W. 5

Vinodilal who in his cross-examination has stated that at the time ofrecovery and preparation of recovery memo in the chamber of S.D.M.,Moinuddin, Station House Officer, Pratapgarh was also present there. Onthe basis of this statement, Mr.Doongar Singh argued that S.H.O.,Pratapgarh has not been deliberately produced in evidence by theprosecution so as to suppress the genesis of the incident. He has referredto various contradictions in the statements of the prosecution witnessesand argued that P.W. 4 Fakirchand in his statement all along maintainedthat total illegal gratification demanded by the accused was Rs.500/-whereas in the complaint made to the S.D.M., he referred to this amountas only Rs.200/-. P.W. 4 Fakirchand in his cross-examination has statedthat on account of tension he might not have told Raghunath Singh thataccused Shambhu Giri was demanding Rs.500/- as gratification. He hasinvited my attention to the statement of P.W. 6 Kuldeep Sharma who inhis examination in chief has stated that application Ex. P/6 was presentedto him while he was in office and then he went to residence during lunchand this application at that time was lying in the drawer of his office table.When Raghuraj Singh came to his residence, his client Fakirchand stoodoutside. Raghuraj Singh produced before him the currency notes on whichhe marked his initials. In cross-examination however P.W. 6 KuldeepSharma has stated that the application was presented to him when hewas at his residence. After sometime he went to his office. As against this,P.W. 7 Raghuraj Singh in his examination-in-chief has stated that he wentto the residence of S.D.M. because his residence was just in front of hisoffice. He submitted the application and also the currency notes beforeMr.Kuldeep Sharma, S.D.M. There,who made his initials on such notes and entered the number of currency notes in his diary. The S.D.M.retained the application and returned the currency notes with theinstruction that when accused demand money, Fakirchand should givethese notes to him.

With the help of these contradictions, Mr.Doongar Singh,learned counsel for the appellant argued that the prosecution has notbeen able to prove as to where the application was handed over to theSub Divisional Magistrate, whether in the office or at his residence. Heargued that accused-appellant was merely a head constable and had noauthority to file complaint u/s 110 Cr.P.C.. In assailing the impugnedjudgment , the learned counsel has argued that the learned trial Court hasnot only did not correctly appreciate the prosecution evidence but hasalso mis-read the statement of P.W. 7 Raghuraj Singh where he admittedthat accused appellant in his first available opportunity before the S.D.M.when he produced the currency notes stated that Fakirchand gave him asum of Rs.200/- for being given to Hari Ram.. But, the learned SpecialJudge has concluded that this was a typing mistake because P.W. 7Raghuraj Singh meant to deny any such defence was taken by theaccused appellant before the S.D.M. but due to typing error ”Nahin”(no)has not been typed out in the statement. Learned counsel for theappellant argued that if there had been any such typing mistake inrecording statement of P.W. 7 Raghuraj Singh, the Public Prosecutorcould make a request to re-examine or re-call of the witness even at asubsequent stage before the judgment was delivered. The learnedSpecial Judge on his own could not hold that there was any such typing

error in the statement of P.W. 7 Raghuraj Singh and on that basis couldnot read that part of statement of Raghuraj Singh in a negative form eventhough he gave such statement in positive form. Mr.Doongar Singh hasrelied upon the judgments of the Hon'ble Supreme Court in Sultan Singhvs. State of Rajasthan, reported in WLN 1969 p.25, Sitaram Vs. State ofRajasthan, reported in AIR 1975 p.1432 and Mansingh vs. DelhiAdministration, reported in 1979 S.C.C. (Criminal) p.528 and with thehelp of these judgments argued that presumption u/s 4 of the Act of 1947that money recovered from the accused was received as illegalgratification stood rebutted by the explanation given by the accused thathe received such amount from P.W. 4 Fakirchand for being given to HariRam. This defence taken by the accused-appellant at the earliestavailable opportunity has been probabilised by evidence of not only starwitness of the prosecution P.W.7 Raghuraj Singh but also by statementsof D.W.1 Rama and D.W. 2 Hari Ram. He therefore prayed that thejudgment passed by the learned trial Court be set aside and the accusedappellant be acquitted of all the charges against him.

On the other hand, Mr.Rameshwar Dave, learned PublicProsecutor for the State argued that so called contradictions pointed bythe learned counsel for the accused-appellant were only minor andnegligible in nature. The factum of demand and recovery of illegalgratification has been proved by overwhelming evidence. He referred tothe statement of P.W. 4 Fakirchand wherein he has stated that he wasfrequently arrested and subjected to number of proceedings u/s 110Cr.P.C. and accused-appellant was demanding a sum of Rs.500/- else he would continue to be harassed in this manner. Mr.Rameshwar Daveargued that P.W. 4 Fakirchand, P.W.5 Vinodilal, P.W. 6 Kuldeep Sharmaand P.W. 7 Raghuraj Singh have also proved both demand and recovery.P.W. 5 Vinodilal has categorically stated that when the accused wasrequired to produce currency notes, he did not state anything else and didnot say that he accepted the money for being paid to Hari Ram. LearnedPublic Prosecutor also referred to the statement of P.W. 6 KuldeepSharma and argued that when Kuldeep Sharma inquired from theaccused appellant as to why he accepted the bribe, he admitted havingcommitted a mistake . Apart from the application Ex.P/6, he has referredto Ex.P/7 which is the list of notes, Ex.P/8 sample of seal, Ex.P/9containing signatures of S.D.M., Ex.P/10 memo of proceedings andEx.P/12 diary in which number of currency notes were entered . He hasalso relied on the statements of P.W. 7 Raghuraj Singh and argued thathe has also fully supported the prosecution version. As regards theadmission made by him that accused stated before the S.D.M. thatFakirchand gave this money to him for giving it to Hari Ram, he arguedthat the learned Special Judge has rightly held this to be result of typingmistake because the statement of P.W. 7 Raghuraj Singh has to be readin its entirety and in this line of statement, word “Nahin”(no) has beeninadvertently left out from being typed. He therefore argued that thepresent appeal preferred by the appellant deserves to be dismissed.

I have given my thoughtful consideration to the argumentsadvanced by learned counsel for the parties and perused the record.

According to the prosecution, the motive with which theaccused appellant is alleged to have demanded illegal gratification fromFakirchand was to save him from continued proceedings u/s 110 Cr.P.C.Accused Shambhu Giri was only working as head constable. Thedecision to lodge a complaint u/s 110 Cr.P.C. is required to be taken atthe level of Station House Officer of the Police Station. This motiveassigned by the prosecution therefore does not appear to be logical. Thisshall have to be judged in the light of the character of the person who hasmade such allegation. P.W. 4 Fakirchand in his statement has admittedthat during the past two years, he had been arrested and subjected toproceedings us 110 Cr.P.C. on at least four occasions. While he hasstated that accused-appellant demanded from him a sum of Rs.500/- asbribe, in the complaint made to Kuldeep Sharma, S.D.M. he simply statedthat accused was demanding from him a sum of Rs.200/- and thereforehe was producing such amount of Rs.200/- which the S.D.M. should signand return him. He eventually submitted currency notes of Rs.200/- toS.D.M. for his signatures. His counsel P.W. 7 Raghuraj Singh who wasinstrumental in arranging this trap for him, has stated that he went to theresidence of S.D.M. with the application around 12 in the noon and at thattime also produced currency notes and obtained signatures of the S.D.M.P.W. 6 Kuldeep Sharma. P.W. 6 Kuldeep Sharma has however takenshifting stands on this aspect and has stated that he received suchapplication in his office and thereafter when he went to his residenceduring lunch, the application was lying in the drawer of his table in office.Raghuraj Singh came to him with currency notes and his client Fakirchandstood outside. In cross-examination however he has stated that this application was produced before him at his residence. P.W. 5 Vinodilalhas stated that at the time of recovery of the currency notes, S.H.O. ,Pratapgarh was present in the chamber of S.D.M. but the prosecutionhas not produced the S.H.O. in evidence. P.W. 4 Fakirchand in hisstatement has categorically stated that Rama was also present on thatday as he was to appear with him in proceedings u/s 110 Cr.P.C. . He hasadmitted that when he gave this amount of Rs.200/- to accused-appellant,Rama Chamar was also with him. This fact also provide credence to thestatement of P.W. 4 Fakirchand when P.W. 7 Raghuraj Singh stated thatone more person was present with Fakirchand when he gave money toaccused Shambhu Giri . P.W. 7 Raghuraj Singh has also categoricallystated that when accused Shambhu Giri produced the currency notesbefore the S.D.M., he at that very time stated that Fakirchand had giventhis money to him for being paid to Hari Ram whom he was due to paysuch amount. In making such statement, P.W. 7 Raghuraj Singh hasclearly probablised the defence of the accused appellant which he offeredat the earliest point of time.

D.W. 1 Rama has stated that Fakirchand had given a sum of Rs.200/- to accused Shambhu Giri in his presence and asked him to givethis money to Hari Ram. He stated that Hari Ram had given a contract forcertain construction work to Fakirchand for a sum of Rs.1500/- and paid asum of Rs.400/- to him in advance. When Fakirchand failed to executethe contract, he was to refund this amount of Rs.400/- to Hari Ram. Whilegiving this amount to Shambhu Giri, Fakirchand also told him that heshall also give remaining Rs.200/- later. Hari Ram who has been

examined by the defence as D.W. 2 has stated that he has so far notreceived the amount of Rs.400/-. He stated that he had given a contract toFakirchand for constructing a boundary wall of his “baara” for a sum ofRs.1500/- and paid a sum of Rs.400/- as advance to him. He gave thismoney to Fakirchand because he was doing such work. When once hesaw Fakirchand in police custody, he demanded from his due amount, buthe expressed his inability to pay the amount immediately and promisedthat either he would himself return the amount or would give it to theperson nominated by Hari Ram . Hari Ram further stated that he toldFakirchand to give this money to the accused appellant Shambhu Giri.Later, the accused appellant complained that due to him(Hari Ram), hehas been falsely implicated in a criminal case.

The appellant in his statement u/s 313 Cr.P.C. has reiteratedthe defence which he had taken at the earliest point of time thatFakirchand gave him a sum of Rs.200/- for being given to Hari Ram. Inhis statement, he has also stated that Fakirchand had falsely implicatedhim in this case because he had arrested him(Fakirchand) on 25.8.1977and further that when he gave this money to Fakirchand, Rama Chamarwas also present there. He has stated that when he produced currencynotes before the S.D.M., Moinuddin,Station House Officer of the PoliceStation was also present there.

Their Lordships of the Hon'ble Supreme Court in State ofAndhra Pradesh vs. V.Vasudeva Rao, reported in (2004) 9 S.C.C. 319while considering the scope of Section 4 of the Act made a finer distinction between the expressions “may presume” and “shall presume”and held that presumption falling under the former category arecompendiously known as “factual presumptions” or “discretionarypresumptions” and those falling under the latter as “legal presumptions” or“compulsory presumptions”. It must have the same import of compulsion.Their Lordships in para 18 of the said judgment while discussing as towhat is the legal meaning of presumption held as under :- “18. Presumption is an inference of a certain fact drawn fromother proved facts. While inferring the existence of a factfrom another, the court is only applying a process ofintelligent reasoning which the mind of a prudent man woulddo under similar circumstances. Presumption is not the finalconclusion to be drawn from other facts. But it could as wellbe final if it remains undisturbed later. Presumption in law ofevidence is a rule indicating the stage of shifting the burdenof proof. From a certain fact or facts the court can draw aninference and that would remain until such inference is eitherdisproved or dispelled.”

In order to appreciate the true contents and meaning ofSection 4 of the Act relating to presumption, its reproduction herein shallbe apt:-

“4(1) Presumption where public servant acceptsgratification other than legal remuneration:(1) Wherein any trial or an offence punishable under section161 or section 165 of the IPC or of an offencereferred to in clause(a) or clause(b) of sub-section(1)of Section 5 of this Act punishable under sub-section(2) thereof, it is proved that an accused person hasaccepted or obtained, or has agreed to accept orattempted to obtain, for himself or for any otherpersonanygratification(otherthanlegalremuneration) or any valuable thing from any person,it shall be presumed unless the contrary is proved thathe accepted or obtained, or agreed to accept orattempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward suchas is mentioned in the said section 161, or, as thecase may be, without consideration or for aconsideration which he knows to be inadequate.”

Question with regard to probability of defence and resultantrebuttal of presumption u/s 4 of the Act came to be considered by theirLordships of the Hon'ble Supreme Court in Sultan Singh vs. State ofRajasthan (supra) in which charge against the Patwari was for acceptanceof bribe of Rs.100/- for supplying copies of Khasra Teeps to the decoy.The defence of the accused Patwari was that this amount was paid to himby the decoy towards arrears of land revenue. Both the trial Court andthis Court accepted the version of the prosecution. When the matter wentto the Hon'ble Supreme Court, their Lordships held that the courts belowneither analysed the record nor shifted the probabilities. The Hon'bleSupreme Court held that the complainant in that case alongwith the trapparty went for search of the accused and ultimately found him in a certaindispensary where he took the accused to an inner room and passed on ahundred rupees note. He did not allow the witnesses who accompaniedhim to observe the payment. In the circumstances, their Lordships heldthat decoy in fact was an accomplice and therefore his testimony couldnot be relied upon as it was not corroborated by any other evidence orcircumstance. Their Lordships accepted the defence of the accused byholding that the decoy pretended ignorance about his arrears of landrevenue but this fact was conclusively proved and was not disputed evenbefore the Supreme Court nor before any of the courts below. TheirLordships referred to the statement of Dy.S.P., Anti Corruption

Facts

Department who asked the accused -appellant immediately when hecame out of the inner room of the clinic as to what for he had acceptedthe money, the accused immediately came out with a defence that suchmoney was paid to him by the complainant towards arrears of his landrevenue. In the facts of the case, their Lordships held that “it is difficult tobelieve that the appellant could have concocted his defence within such ashort time.” Similarly, the Hon'ble Supreme Court in the case of Sita Ramvs. State of Rajasthan(supra) while examining the scope and import ofSection 161 IPC held that when the facts that the accused was a publicservant and obtained gratification are proved, then a rebuttablepresumption arises in respect of the fact that such gratification was for themotive or reward for doing or forbearing to do any official act or forshowing or forbearing to show in the exercise of his official functions,favour or disfavour to the person. Their Lordships held that on mererecovery of certain money from the person of an accused without theproof of its payment by or on behalf of some person to whom officialfavour was to be shown, the presumption cannot arise. In the presentcase also the prosecution has failed to prove that accused appellant beinga government servant of the status of head constable only, how possiblycould he accept the gratification for motive or reward for doing orforbearing to do any official act or for showing or forbearing to show, in theexercise of his official functions, favour or disfavour to the person. OnlyStation House Officer of the Police Station concerned was competent toinitiate proceedings u/s 110 Cr.P.C. Nothing has been brought on recordthat the accused appellant accepted such gratification on his behalf.

In Man Singh vs. State of Rajasthan(supra) their Lordshipsof the Supreme Court held that u/s 4 and 5(1)(D) and 5(2) of the Act of1947, the accused is not required to prove his defence by strict standardsof beyond reasonable doubt but it is sufficient if he offers an explanationor defence which is probable and once this is done, the presumption u/s 4stands rebutted. In the present case also the defence of the accusedhaving been probabilised by none other than the star witness of theprosecution P.W. 7 Raghuraj Singh, the defence of the accused appellanthas clearly been proved as required by Section 3 of the Evidence Act.

Their Lordships of the Hon'ble Supreme Court in the case ofPunjabrao vs. State of Maharashtra, reported in (2002) 10 S.C.C. P.371while examining the explanation offered by the accused on a similarcharge which was found to be probable, reasonable and acceptable bythe trial Court which acquitted him which on appeal however wasreversed by the High Court, held that “accused is not required to establishhis defence by proving beyond reasonable doubt as the prosecution, butcan establish the same by preponderance of probability.”

The view taken by the Hon'ble Supreme Court in the case ofPunujabrao Vs. State of Maharashtra(supra) has recently been reiteratedby their Lordships of the Hon'ble Supreme Court in T.Subramanian vs.The State of Tamil Nadu, reported in AIR 2006 S.C. p.836. In para 7 ofthe said judgment, their Lordships observed as under :- “Mere receipt of Rs.200/- by the appellant from PW-1 on

10.7.1987(admitted by the appellant) will not be sufficient tofasten guilt under Section 5(1)(a) or Section 5(1)(d) of theAct, in the absence of any evidence of demand andacceptance of the amount as illegal gratification. If theamount had been paid as lease rent arrears due to thetemple or even if it was not so paid, but the accused wasmade to believe that the payment was towards lease rentdue to the temple, he cannot be said to have committed anyoffence. If the reason for receiving the amount is explainedand the explanation is probable and reasonable, then theappellant had to be acquitted, as rightly done by the SpecialCourt. In Punjabrao vs . State of Maharashtra(2002(1) SCC371), the accused, a patwari, was on a campaign to collectloan amounts due to Government. The complainant thereinwas admittedly a debtor to the Government. The accusedexplained that the amount in question was received towardsloan. This Court accepted such explanation(though suchexplanation was not immediately offered as in this case, butwas given only in the statement under Section 313) holdingthus:- “It is too well settled that in a case where the accusedoffers an explanation for receipt of the allegedamount, the question that arise for consideration iswhether that explanation can be said to have beenestablished. It is further clear that the accused is notrequired to establish that his defence by provingbeyond reasonable doubt as the prosecution, but canestablish the same by pre-ponderence of probability.”

In Chaturdas Bhagwandas Patel vs. The State of Gujarat(AIR 1976 SC 1497), this Court held that the burden thatrests on an accused to displace the statutory presumptionthat is raised under Section 4(1) of the Act, is not onerous asthat cast on the prosecution to prove its case. But suchburden has to be discharged, by bringing on recordevidence, either direct or circumstantial , to establish withreasonable probability, that the money was accepted by him,other than as a motive or reward as is referred to in Section161, IPC.

In State through Inspector of Police, Andhra Pradesh vs.K.Narasimachary (2005(8) SCALE 266), we have reiteratedthe well recognized principle that if two views are possible,the appellate Court should not interfere with the acquittal bythe lower court; and that only where the material-on-recordleads to a sole and inescapable conclusion of guilt of theaccused, the judgment of acquittal will call for interference bythe appellate Court.”

A similar view was taken by their Lordships in M.Abbas vs.State of Kerala, reported (2001) 10 S.C.C. p..103 wherein it was held that“where an accused sets up a defence or offers an explanation, it is wellsettled that he is not required to prove his defence beyond a reasonabledoubt but only by preponderance of probabilities.”

In my view, there was absolutely no warrant for the learnedSpecial Judge to have read in the statement of P.W. 7 Raghuraj Singhwhat in fact was not stated by him. A version which he did not give, couldnot be read in his statement by presuming that there appeared to besome typographical error in the last portion of the statement where P.W. 7Raghuraj Singh has stated that accused on being asked told the S.D.M.that Fakir Chand gave him the money for being paid to Hari Ram. Thelearned Special Judge in my view has clearly erred in law by observingthat word “Nahin”(no) could not be typed out due to clerical error whilerecording the statement of P.W. 7 Raghuraj Singh. The prosecution hadtaken no steps to either re-examine P.W. 7 Raghuraj Singh then andthere or to recall him at any stage thereafter before the judgment. Thelearned Special Judge therefore committed an error of law in making out acase for the prosecution by taking approach which cannot be approved.

A cumulative examination of entire evidence of theprosecution in light of the defence set up by the accused clearly show (i)that star witness of the prosecution namely P.W. 7 Raghuraj Singh hasadmitted that the accused took such a defence at the earliest and at thefirst point of time when he produced the currency notes (ii) that P.W. 6

Kuldeep Sharma has stated this much that the accused told him that thismoney was relating to their personal affair (iii) that decoy P.W. 4Fakirchand admitted presence of D.W. 1 Rama with him when he paid thesum of Rs.200/- to the accused appellant (iv) that P.W. 7 Raghuraj Singhalso admitted presence of one more person with Fakirchand when hegave the amount of Rs.200/- to accused appellant (v) that D.W. 1 Rama inhis statement provided corroboration to the defence set up by theaccused appellant and ;(vi) that D.W. 2 Hari Ram has also providedcorroboration to such defence when he admitted that he had givencertain contract for construction of boundary wall to Fakirchand and paida sum of Rs.400/- as advance. When it was difficult to recover theamount, he asked Fakirchand to give this money to accused appellantShambhu Giri. The defence of the accused appellant having been soprobablised, presumption of Section 4 of the Act of 1947 that the moneyrecovered from the accused appellant was that of illegal gratification stoodrebutted. It was then for the prosecution to bring home the guilt of theaccused by required degree of beyond reasonable doubt.

Two important factors thus emerge out of any basis of theentire prosecution evidence namely; (1) that the defence which theappellant has taken was immediately taken at the time when he wasasked to produce the currency notes by P.W. 6 Kuldeep Sharma, S.D.M.in his chamber (2) that the defence of the accused appellant taken in hisstatement u/s 313 Cr.P.C. has been probabilised by the statements ofP.W. 4 Fakirchand, P.W. 7 Raghuraj Singh , D.W. 1 Rama and D.W. 2Hari Ram as discussed hereinabove. The appellant in this case has been

charged for committing offences u/s 161 IPC and Section 5(1)(d) and 5(2)of the Act of 1947. Although, the factum of recovery of a sum of Rs.200/-from the appellant is not in doubt. In fact the appellant himself in hisdefence has admitted having receiving such amount from Fakirchand. Hisdefence however is that Faikirchand had given him this money for beinggiven to Hari Ram. A careful study of Section 4(1)(d) of the Act of 1947would make it clear that presumption arising u/s 4(1) is a rebuttablepresumption and such presumption arises only in regard to cases fallingu/s 161 IPC or for an offence u/s 5(1)(A) or (B) of the Act of 1947. So faras the offence u/s 5(1)(d)(2) of the Act of 1947 is concerned, suchpresumption cannot be raised against the appellant for the said offence. Aquestion would however arise whether in the facts of the present case,presumption can be raised against the appellant with regard to offence u/s161 IPC or if raised, whether the appellant has been able to rebut suchpresumption by the defence he has produced. As already noticed, thepresumption raised u/s 4(1)(d) of the Act of 1947 in reference to anoffence u/s 161 IPC is a rebuttable presumption. The entire prosecutioncase hinges on the allegation that the accused-appellant demandedmoney from Fakirchand as illegal gratification in exchange of assurancefor not subjecting again him to proceeding u/s 110 Cr.P.C. No evidencehas been brought on record that S.H.O. of the Police Station was alsoprivy to any such assurance held out by the appellant to Fakirchand noteven a suggestion to that effect given. Not only this, the explanation givenby the appellant at the earliest point of time when he was made toproduce the currency notes before the S.D.M. and in his own statementu/s 313 Cr.P.C. has been amply probabilised in view of the evidence discussed above.

In view of catena of judicial pronouncements noticed above,It is now well settled proposition of law that an accused is not required toprove his defence beyond reasonable doubt but he has to prove suchdefence only by preponderance of probabilities. It is this degree ofdifference in the required standard of proof that places limited onus ontothe accused to merely probalise his defence and not to prove it beyondreasonable doubt. In the facts of the present case, such presumption hasbeen successfully rebutted and onus thereof has been duly discharged bythe appellant more particularly when the prosecution has failed to proveas to on what authority of law, the accused-appellant could held out thealleged assurance . At the same time however the prosecution has failedto prove the offence with which the appellant has been charged, beyondreasonable doubt thus entitling him to benefit of doubt.

For what has been discussed above, the present appealdeserves to be allowed and is hereby allowed and the impugned judgmentis set aside. Consequently the conviction and sentence recorded thereinare also set aside. Bail bonds of the appellant and sureties shall standdischarged.

(MOHAMMAD RAFIQ),J.