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Jharkhand High Court · body

2010 DIGILAW 866 (JHR)

Pawan Kumar Jha v. State of Jharkhand

2010-09-07

D.G.R.PATNAIK

body2010
JUDGMENT D.G.R. Patnaik, J.-Heard the learned counsel for the appellant and the learned counsel for the Respondent-C.B.l. 2. The appellant, in this appeal has challenged the impugned judgment of his conviction and order of sentence dated 24.12.2001, passed by the Special Judge, C.B.l., Dhanbad in R.C. Case No. 19(A) of 1993(D), whereby he has been convicted for the offence under Section 7 of the Prevention of Corruption Act, 1988 and also under Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced to imprisonment for a period of one year for the offence under Section 7 of the Act and two years for the offence under Section 13(2) read with Section 13(1)(d) of the Act. 3. The case against the appellant was initiated on the basis of the complaint filed by one Santosh Bauri before the S.P., C.B.I., Dhanbad on 23.9.1993. The allegations in the complaint was that the complainant, Santosh Bauri who was an employee working as a loader, in the Sendra Bansjora Colliery, Sijua Area of M/s. B.C.C.L., was admitted to the Hospital, where he was given indoor treatment from 22.8.1993 to 27.8.1993 but the appellant, who was the then Doctor, posted in the Hospital, did not issue the fitness certificate upon his discharge from the Hospital. It is alleged that the appellant called the complainant to the Hospital a week later for further treatment. On his visit to the Hospital, the appellant allegedly demanded a sum of Rs. 200/- from the complainant for issuing a fitness certificate. Being reluctant to pay any such amount of illegal gratification to the appellant, the' complainant filed his complaint before the S.P., C.B.l., Dhanbad on 23.9.1993. 4. The prosecution's case in brief is that the allegations as contained in the complaint were verified and upon the same being found correct and genuine, the case was registered and the investigation was entrusted to R.K. Choubey, Inspector of Police, S.P.E., C.B.l., Dhanbad. On the next date, i.e. on 24.9.1993, a trap team was constituted in which the complainant, Santosh Bauri was also included alongwith two independent witnesses, namely, Capt. S.C. Kohli (P.W. 1) arid B.P. Banerjee (P.W. 12). A rehearsal for executing the trap was made. Currency notes of the value of Rs. On the next date, i.e. on 24.9.1993, a trap team was constituted in which the complainant, Santosh Bauri was also included alongwith two independent witnesses, namely, Capt. S.C. Kohli (P.W. 1) arid B.P. Banerjee (P.W. 12). A rehearsal for executing the trap was made. Currency notes of the value of Rs. 200/- of different denominations produced by the complainant, Santosh Bauri, were treated with Phenolphthalein powder and handed over to the complainant with instructions to handover the same to the accused/ appellant on demand. The medical prescription, which was produced by the complainant, was also handed over to the complainant with instructions to handover the same to the appellant/accused on demand. After the rehearsal, the trap team proceeded to the Central Hospital, where they reached at about 9.30 a.m. The complainant obtained a registration number from the registration counter and went to the chamber of the appellant, where he submitted his duplicate medical prescription alongwith a fresh prescription sheet, bearing Registration No. 44662/93. The Doctor was not present at that time in his chamber. The members of the trap team, including the two shadow witnesses, went outside the chamber of the appellant. After some time, the appellant came to his chamber and called the complainant inside. At that time, the shadow witness positioned themselves, by the side of the window no.1 of the chamber of the appellant from where they kept watch. It is alleged that the appellant asked the complainant to lie down on the patient's examination table. The shadow witnesses shifted to the second window of the chamber from where they could hear the conversation between the complainant and the Doctor. It is alleged that the shadow witnesses overheard the appellant asking the complainant as to whether he has brought the money to which the complainant responded in the affirmative and thereafter, the appellant demanded the money. On being demanded, the complainant brought out the tainted money from his shirt pocket and handed over the same to the appellant, who accepted the currency notes with his right hand and after counting the same with both his hands, kept the money under the mattress of the patient's examination table and assured the complainant that he would issue the fitness certificate. The appellant prepared the fitness certificate and handed over the same to the complainant. The appellant prepared the fitness certificate and handed over the same to the complainant. At this juncture, upon the signal flashed by the complainant, Inspector R.K. Choubey and other members of the trap team including M.K. Sharma and B.P. Banerjee entered into the appellant's chamber. The trap team challenged the appellant who allegedly became nervous and accepted his guilt. Thereafter, one of the trap witness, B. Paswan caught the left hand of• the appellant, while another trap member A.B. Thapa caught hold of the right hand of the appellant. The shadow' witness B.P. Banerjee recovered the tainted money from beneath the mattress of the patient's examination table. The numbers of the currency notes were compared and tallied with the numbers noted in the preliminary memorandum. Thereafter, the appellant was taken into custody and after preparation of an arrest memo and search and seizure memo, the copies of the same were handed over to the appellant. Both the hands of the appellant were dipped in the solution of Sodium Carbonate separately, which turned pink. The solution was transferred into two glass bottles and sealed with identification marks affixed thereon in each bottle. The total currency notes were separately kept and sealed in an envelope. The signatures of the witnesses were obtained on the sealed bottles as also on the sealed envelope. The bottles of liquid containing the hand wash of the appellant, was sent to the C.F.S.L. for chemical examination. After obtaining the report from the C.F.S.L., sanction was obtained for prosecution of the appellant. Later, after completing the investigation, charge-sheet was submitted against the appellant for his trial for the aforementioned offences. 5. At the trial, the prosecution examined as many as 14 witnesses including the two shadow witnesses, namely, Suresh Chandra Kohli (P.W. 1) and Bhawani Prasad Banerjee (P.W. 12), besides the trap witness, Basudeo Paswan. Out of theses witnesses, P.W. Nos. 2 to 7, P.W. 9 and P.W. 14 were examined by the prosecution as. formal witnesses. P.W. 2 have proved the writing of the complainant, Santosh Bauri in the complaint petition, which was marked as Exhibit-2. The complainant, Santosh Bauri could not be examined on account of his death and his death certificate was proved by P.W. 14, Nishapati Rajak. 2 to 7, P.W. 9 and P.W. 14 were examined by the prosecution as. formal witnesses. P.W. 2 have proved the writing of the complainant, Santosh Bauri in the complaint petition, which was marked as Exhibit-2. The complainant, Santosh Bauri could not be examined on account of his death and his death certificate was proved by P.W. 14, Nishapati Rajak. P.W. 9, Sanat Kumar Mukhopadhyay, who was the Assistant Director of C.F.S.L, Hyderabad, was examined to prove the chemical report (Exhibit-10) and the forwarding letter of the Report (Exhibit-11). P.W. 6, Kalyan Kumar Karmakar being the Executive Secretary, Vigilance Department, Coal India Ltd., Calcutta, has proved the Sanction Order (Exhibit-8). PW. 10, Anand Mohan Ray, who was the Chief of Medical Services, B.C.C.L. Central Hospital, Dhanbad, in his examination-in-chief, had stated that the complainant, Santosh Bauri was admitted to the Hospital and was later, discharged from the Hospital. He had affirmed that the appellant at the relevant time was the attending Doctor of the Hospital. He had proved the writing of the appellant on the prescription of the patient, Santosh Bauri. The material witnesses examined by the prosecution are, Suresh Chandra Kohli (P.W. 1), who was one of the trap witnesses. In his evidence, he affirms that he was called at the office of the S.P., C.B.l., Dhanbad in the evening of 23.9.1993 and again in the morning of the following date. On his visit to the C.B.l. office, he found altogether eight persons there including B.P. Banerjee, Santosh Bauri, both of whom were introduced to the witness by the Inspector. He had heard the narration of the complainant, Santosh Bauri, who said that the Doctor, (the appellant), had demanded a sum of Rs. 200/- for issuing a fitness certificate. This witness had also deposed the manner in which a rehearsal was conducted with the members of the trap team and about the treating of the currency notes, produced by the complainant, Santosh. Bauri with phenolphthalein powder. This witness had also deposed that at about 10.45 a.m., when the Doctor came to his chamber, he had stationed himself near the window of the chamber from where, the inside of the chamber was clearly visible and tile conversation held inside the chamber was also audible. Bauri with phenolphthalein powder. This witness had also deposed that at about 10.45 a.m., when the Doctor came to his chamber, he had stationed himself near the window of the chamber from where, the inside of the chamber was clearly visible and tile conversation held inside the chamber was also audible. This witness claims he could overhear the conversation and had seen that upon the demand made by the appellant, the complainant brought out the currency notes of Rs. 200/-, which the appellant received with both his hands and thereafter, kept the money beneath the mattress of the patient's examination table. The witness adds that after receiving the money, the appellant sat on the chair and prepared the fitness certificate and handed over to the complainant. Upon receiving the signal from the complainant, this witness alongwith the other members of the raiding party entered into the appellant's chamber. While two persons of the raiding party caught hold of the hand of the appellant, the trap witness, B.P. Banerjee recovered the money from beneath the table mattress of the patient's examination table while being pointed out by the appellant in his confessional statement. The witness has further identified the sealed envelope in which the currency notes were kept. He also deposed that the hands of the appellant were dipped in the solution of the sodium carbonate which had turned pink and that the colored liquid was transferred to glass bottles, which were sealed. The second witness Bhawani Prasad Banerjee (P.W. 12) was also examined as an independent witness by the prosecution. This witness had however, not lent support to the prosecution's case, though he has affirmed that at the office of the C.B.l., where he visited at about 7.25 a.m. on 24.9.1993, he found several persons present including one Santosh Bauri, who was introduced to him by the Inspector. He further informs that Santosh Bauri produced Rs. 200/- and the currency notes were treated with some powder and the tainted currency notes were handed over to the complainant, Santosh Bauri with a direction to handover the same, to some person, on demand at the Central Hospital. The witness thereafter, adds that he alongwith others went to the Central Hospital, Saraidhela and sat on the Verandah of the Hospital. Santosh Bauri, who had also accompanied, was sent to some other person, whom the witness did not know. The witness thereafter, adds that he alongwith others went to the Central Hospital, Saraidhela and sat on the Verandah of the Hospital. Santosh Bauri, who had also accompanied, was sent to some other person, whom the witness did not know. After about 20 minutes, the appellant/Doctor came to his chamber and within five minutes thereafter, the Doctor was arrested by the C.B.l. personnel. The witness declares that he did not know why the Doctor was arrested, although he admits that his signature was obtained on the seizure list which he had proved in course of trial. This witness denies the prosecution's suggestion that he had entered the chamber of the appellant/Doctor, upon receiving the signal from the complainant, Santosh Bauri, and he also denies the suggestion that he had recovered the money from beneath the mattress of the patient's examination table. He denies his signature on the sealed bottle of liquid. P.W. 11, N.M.P. Sinha, Inspector, C.B.l., Dhanbad had deposed that upon receiving the complaint from the complainant, Santosh Bauri, the same was entrusted to him for verification. He verified the complaint and finding the same to be correct, he submitted his report which he has proved as Exhibit-12. He further claims that in the morning of 24.9.1993, he was called at the office of the C.B.l. Upon his visit to the office, he found eight officers and staff of the C.B.l., present there besides the witnesses Captain S.C. Kohli and B.P. Banerjee alongwith the complain ant Santosh Bauri. He narrates the manner in which the trap rehearsal was conducted and the currency notes produced by the complainant were treated with phenolphthalein powder and returned to the complainant, Santosh Bauri with instructions to handover the money to the appellant on demand. He further affirms that the trap witness, S.C. Kohli positioned himself near the window of the chamber of the appellant. His further deposition is in respect of the alleged demand of money from the complainant and the handing over the tainted currency notes to the appellant and the receiving of the tainted currency notes by the appellant from the complainant and later, recovery of the tainted currency notes from beneath the mattress of the patient's examination table in the appellant's chamber and the dipping of the hands of the appellant in the. solution of sodium carbonate and the preparation of the sealed bottles containing the purported hand-wash of the appellant. P.W. 13, Radha Kant Choubey is the informant-cum-Investigation Officer, whose deposition is in consonance with the prosecution's case commencing from the stage when the complainant had submitted his written complaint, procedures adopted by the C.B.l. officials, who laid the trap team, the conducting of the rehearsal in presence of the members of the trap team, the recovery of the tainted currency notes from beneath the mattress of the patient's examination table inside the appellant's chamber and the arrest of the appellant. P.W. 13 Radha kant Choubey is the informant-cum-investigation Officer, whose informant is in commencing with the pros-deposition’s case commencing from the stage when the complainant had submitted his written complaint, procedures adopted by the C.B.l. officials, who laid the trap team, the conducting of the rehearsal in presence of the members of the trap team, the recovery of the tainted currency notes from beneath the mattress of the patient’s examination table inside the appellant’s chamber and the arrest of appellant 6. On the basis of the evidences adduced by the prosecution and placing reliance upon the testimony of the material witnesses in particular, P.W.1 and that of the Investigating Officer, the trial court recorded its finding of guilt against the appellant for the offences both under Section 7 and Section 13(2) read with Section 13(1) (d) of the Prevention of Corruption Act, 1988 and sentenced the appellant as earlier mentioned. 7. The appellant has challenged the impugned judgment of his conviction on the following grounds: (i) Non-examination of the complainant, Santosh Bauri. The contention of the learned counsel for the appellant is that though the prosecution has claimed that the complainant, Santosh Bauri had died on 27.11.1993 but the death certificate (Exhibit-23), which was introduced at the trial, does not confirm that the death certificate belongs to Santosh Bauri. Learned counsel argues that the identity of the complainant, Santosh Bauri and his death has not been proved by cogent and reliable evidence by the prosecution. Such doubts, according to the learned counsel, emanates from the fact that whereas, in the memorandum of recovery (Exhibit-20), the address of the complainant is shown as 'Purulia', but in the death certificate, he has been shown as a resident of Pabia-Ankdwara of Nirsa Block. Such doubts, according to the learned counsel, emanates from the fact that whereas, in the memorandum of recovery (Exhibit-20), the address of the complainant is shown as 'Purulia', but in the death certificate, he has been shown as a resident of Pabia-Ankdwara of Nirsa Block. Learned counsel argues further, that the purported entry in the Form-B Register of the death of the complainant, Santosh Bauri, cannot be relied upon as because the same has apparently been intentionally entered, although there is no column in the Form-B Register for entering the date of death of the employee. Learned counsel argues that the entry of the death of employee in the form, is itself not indicative of the fact of the death of the said employee. (ii) Demand and acceptance not proved. Learned counsel argues that in absence of the complainant, the prosecution has sought to rely upon the testimony of the shadow witness, Suresh Chandra Kohli (P.W. 1) and that of Shri N.M.P. Sinha, Inspector, C.B.1. (P.W. 11). Referring to the deposition of P.W. 11, learned counsel submits that though in his deposition, this witness has sought to corroborate the statements of P.W. 1, that the appellant had demanded the money from the complainant and in response, the complainant had brought out the money from his shirt pocket and handed over the same to the complainant but in the statements before the Investigating Officer, this witness has stated that at the time when the alleged demand and acceptance of money was being transacted, he was loitering in the Veranda, facing the T.B. Ward and after getting the signal, he went to the chamber of the appellant. Upon being confronted with such contradictory statements, this witness has not offered any explanation for such contradiction. Learned counsel explains further that though P.W. 1 has claimed to have stationed himself near the window of the appellant's chamber- but he has also stated that the window was covered by a curtain and this fact has also been confirmed by the evidence of P.W. 4, who is a Clerk in the Central Hospital. Learned counsel submits that as per the deposition of P.W. 4, in the chambers of the Doctor, the patients are examined within a cubical forming part of the chamber of the Doctor, which is fully covered from outside view and no one can peep and watch into the chamber. Learned counsel submits that as per the deposition of P.W. 4, in the chambers of the Doctor, the patients are examined within a cubical forming part of the chamber of the Doctor, which is fully covered from outside view and no one can peep and watch into the chamber. Learned counsel submits that this statement of the witness finds corroboration from the site plan of the alleged place of occurrence (Exhibit-18) prepared by the Investigating Officer. Under such circumstances, the statements of P.W. 1 and P.W. 11 that they had seen the transaction from across the window of the appellant's chamber is false and seriously doubtful. There is no reliable and convincing evidence regarding the allegation that the appellant had demanded the money and had received the same from the complainant. (iii) Recovery, not proved. Learned counsel for the appellant submits that even as admitted by P.W. 1 and P.W. 11 as well as P.W. 13, the purported tainted currency notes were not recovered from the personal possession of the appellant. Rather, the same is alleged to have been recovered from underneath the mattress of the patient's examination table by P.W. 12. However, P.W. 12 has denied to have recovered any such money from beneath the mattress of the patient's examination table. Furthermore, there is contradiction in the evidence of the witnesses regarding the manner of the alleged recovery. Whereas P.W. 1 in Para 6 of his evidence, claims that upon being challenged, the appellant became nervous and had himself disclosed that he had concealed the money underneath of the mattress of the patient's examination table, which was allegedly recovered by P.W. 12 but P.W. 11 in Paragraph 12 and Paragraph 7 asserts, on the other hand that on being challenged, the appellant became nervous and did not say anything and it was only on the pointing out by P.W. 1, that the currency notes were recovered from underneath the bed-sheet of the patient's examination table. Learned counsel argues that in view of such vital contradictions, the prosecution cannot claim that it has proved the alleged recovery of the money from the petitioner's possession beyond reasonable doubt. Referring further to the evidences of P,W. 1 and P.W. 13, learned counsel has attempted to point out certain contradictions, which according to him, are vital and casting a serious doubt in the prosecution's case. Referring further to the evidences of P,W. 1 and P.W. 13, learned counsel has attempted to point out certain contradictions, which according to him, are vital and casting a serious doubt in the prosecution's case. Learned counsel submits that according to the prosecution's case, the complainant had given the signal to the trap witnesses after receiving the fitness certificate from the appellant/Doctor, indicating thereby that the fitness certificate was prepared and handed over by the appellant to the complainant. If this was so, then the seizure memo ought to have shown that the fitness certificate was in fact found and seized. Learned counsel argues that if the basis of the prosecution's case for the demand of illegal gratification by the appellant is the preparation of the fitness certificate, then the statements of the witnesses that they had seen the appellant preparing and handing over the fitness certificate to the complainant, should have been corroborated by the seizure of such fitness certificate promptly from the possession of the complainant or from the chamber of the appellant. In absence of any proof of such fitness certificate, it cannot be said that the appellant had made any demand and accepted the illegal gratification in exchange for the fitness certificate. (iv) The reverse burden. on the accused in terms of Section 20 of the Act. Learned counsel for the appellant explains that the presumption that the accused had received the money by way of illegal gratification and therefore, the onus is on the accused to rebut such presumption but the provisions of Section 20 of the Act arises only when the prosecution is able to prove the demand and acceptance and the recovery of the bribe amount. The burden under Section 20 of the Act does not therefore, shift where the prosecution has failed to lay down the foundational basis to give rise to such presumption under Section 20' of the Act and the accused is not required to rebut the same. To buttress his argument, learned counsel would refer to and rely upon the judgment of the Supreme Court in. the case of State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede reported in (2009)15 SCC 200 and to another judgment of the Supreme Court in the case of Om Prakash vs. State of Haryana, reported in (2006) 2 SCC 250 . To buttress his argument, learned counsel would refer to and rely upon the judgment of the Supreme Court in. the case of State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede reported in (2009)15 SCC 200 and to another judgment of the Supreme Court in the case of Om Prakash vs. State of Haryana, reported in (2006) 2 SCC 250 . Learned counsel argues further, that the mode of rebutting the presumption under Section 20 of the Act can either be through cross-examination of the prosecution witnesses or by adducing reliable evidences and the burden can be discharged by the accused only on the touchstone of the preponderance of probability and not on the touchstone of proof beyond the reasonable doubt. Learned counsel argues that in respect of offences under the Prevention of Corruption Act, the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence. Mere recovery of money by itself is not enough in absence of evidence to prove the acceptance of payment or to show that the accused voluntarily accepted the money knowing it to be bribe. Where the prosecution fails to prove beyond the reasonable doubt that the accused had actually received the bribe amount, it would not lead to a presumption that the fingers of the accused tainted only because he had received the money in his hands. 8. Learned counsel for the Respondent-C.B.l., on the other hand would want to controvert each of the grounds, as raised by the appellant and would submit arguments in support of the impugned judgment of conviction and sentence of the appellant. Learned counsel would argue that from the evidence of the witnesses, the unquestionable facts which emerge are that the accused/appellant being employed as a Senior Medical Officer at the Central Hospital (G.B. Nagar, B.C.C.L.), had demanded illegal gratification of Rs. 200/- from the complainant for issuing a fitness certificate •to him. The complaint received from the complainant was verified and thereafter, a case was registered. A trap was laid and the appellant was caught red-handed in presence of two independent witnesses while demanding and accepting a sum of Rs. 200/- as illegal gratification from the complainant. 200/- from the complainant for issuing a fitness certificate •to him. The complaint received from the complainant was verified and thereafter, a case was registered. A trap was laid and the appellant was caught red-handed in presence of two independent witnesses while demanding and accepting a sum of Rs. 200/- as illegal gratification from the complainant. Learned counsel argues that these facts do demonstrate that the accused/ appellant being a public servant had obtained illegal gratification for showing a favour to the complainant in exercise of his official functions and had used his official position to extract the illegal gratification. These facts do squarely establish the ingredients of Section 7 of the Act. The same facts, according to the learned counsel, also establish the ingredients of Section 13(1) (d) of the Act. Learned counsel explains further that the demand of bribe, acceptance thereof and recovery of the tainted money from the possession of the accused, are some of the important aspects of the case of the prosecution. Learned counsel adds further that though the complainant was not examined but the failure to examine him was on account of the fact that the complainant had died even before he could depose before the trial court. However, failure to examine the complainant in itself, would not be fatal to the prosecution, since the other witnesses in particular, P.W. 1 and P.W. 11 have confirmed that the appellant had demanded money from the complainant and in response to the appellant's demand, the complainant brought out the money and handed over the same to the appellant who had received the money with his hands and concealed the same underneath the mattress of the patient's examination table. The witnesses have also confirmed that the money was recovered from beneath the mattress of the patient's examination table and that the hands of' the appellant were dipped in the sodium carbonate solution, which had turned pink, which confirms that the appellant did receive the tainted currency notes in his hands. Regarding the evidence of P.W. 12, Bhawani Prasad Banerjee, learned counsel submits that this witness was examined as an independent witness and he had admitted his signature on the personal search memo of the appellant and on the memorandum of recovery and on the material exhibits. Regarding the evidence of P.W. 12, Bhawani Prasad Banerjee, learned counsel submits that this witness was examined as an independent witness and he had admitted his signature on the personal search memo of the appellant and on the memorandum of recovery and on the material exhibits. Learned counsel explains that the complainant was admitted to the Hospital as an indoor patient from 22.8.1993 to 27.8.1993 and was discharged from the Hospital on 27.8.1993 after undergoing the Medical treatment under the appellant, Dr. Pawan Kumar Jha and that the appellant was required to issue the fitness certificate. These are facts, which have not been denied or disputed by the defence. Learned counsel argues further, that on reading the evidence of the witnesses in totality, the only inference which could be drawn is that the charge for the offences stood proved beyond reasonable doubt. Under such circumstances, the presumption under Section 20 of the Prevention of, Corruption Act, at once arises. The only requirement for the prosecution is to establish that the accused accepted or did agree to accept the amount of illegal gratification and the provisions of Section 20 of the Act does not lay down any condition that such proof must come only through direct evidence. In support of his arguments, learned counsel would refer to the judgments of the Supreme Court reported in AIR (2001) SC 318 and AIR (1973) SC 28. 9. Having heard the learned counsel for the parties and having gone through the materials available on record as well as the impugned judgment of conviction, as recorded by the trial court, the following salient features in the prosecution's case do emerge:- (i) The complainant was not examined by the prosecution and due to this, there is no direct evidence brought on record that the appellant had demanded any illegal gratification from the complainant in exchange for issuing the fitness certificate. The substitute evidences of P.W. 1 and P.W. 11 on which the prosecution has sought to rely for proving the alleged demand and acceptance of bribe money by the appellant, has therefore, to be scrutinized carefully. The substitute evidences of P.W. 1 and P.W. 11 on which the prosecution has sought to rely for proving the alleged demand and acceptance of bribe money by the appellant, has therefore, to be scrutinized carefully. Both these witnesses claim in their respective depositions that at the time when the complainant had entered into the chambers of the appellant, they had stationed themselves outside the window of the chamber and through which they had seen the complainant lying on the patient's examination table and had overheard the demand for money made by the appellant and the bringing out of the money by the complainant from his shirt pocket and the receiving of money by the appellant from the complainant and further, the concealing of the money by the appellant underneath the table cloth of the patient's examination table. The question is as to whether the place from where the witnesses claim to have positioned themselves, could they have seen or overheard any conversation across the window? The evidence of P.W. 4 who is an employee of the Hospital and perusal of the site-plan of the place of occurrence would indicate on the other hand, that the patient's examination table is situated within a cubical inside the Doctor's chamber and the cubical is covered all around in such a manner as to prevent any outsider to see into the cubical and watch the patient being examined on the examination table. Though the site-plan of the place of occurrence confirms the presence of two separate windows of the chamber but the fact, even as admitted by P.W. 4, suggests that the windows are covered by curtains. If this be so, then an explanation from the witnesses was expected as to how could they see across the window, which was covered by a curtain and how could they watch or peep into the cubical, which is protected from outside view? In the light of the aforesaid facts, the statements of these two witnesses, namely, P.W. 1 and P.W. 11 that they had seen the appellant accepting the bribe amount from the complainant and the appellant concealing the same beneath the mattress of the patient's examination table and that they had overheard the conversation held inside the cubical, becomes highly doubtful. In the light of the aforesaid facts, the statements of these two witnesses, namely, P.W. 1 and P.W. 11 that they had seen the appellant accepting the bribe amount from the complainant and the appellant concealing the same beneath the mattress of the patient's examination table and that they had overheard the conversation held inside the cubical, becomes highly doubtful. The prosecution has not brought any other witness who could have given a direct evidence on the point of demand and acceptance of bribe by the appellant. It is relevant to note here that though P.W. 11 has claimed to have stood outside the window of the chamber, to have access by sight and ear to the transactions held within the cubical of the Doctor's chamber, but his statement before the Investigating Officer, is that at the relevant time, he was loitering in the Veranda and he had entered in the appellant's chamber only upon receiving the signal from the complainant. This is a contradiction, which is vital and which cannot be ignored. 10. As regards the alleged recovery of the tainted currency notes, admittedly such recovery was not made from the personal possession of the appellant upon his personal search being made by the Investigating Officer. The prosecution had wanted to claim that the tainted currency notes were recovered by P.W. 12 from underneath the bed-sheet of the patient's examination table but P.W. 12 has categorically denied any such suggestion. The statement of this witness assumes importance and capable of placing reliance in view of the fact that he has not been declared hostile by the prosecution. As pointed out by the learned counsel for the defence, there is inconsistency in the evidence of the witnesses in respect of recovery. While P.W. 1 claims that the money was recovered from underneath the bed-sheet of the patient's examination table by PW. 12 on being pointed out by the appellant himself, PW. 11 suggests on the contrary that the appellant did not say a word after becoming nervous and it was P.W. 1 who had pointed out to the place from where the money was recovered by P.W. 12. It is manifest therefore, that the evidence of the prosecution witnesses, on the point of recovery of the alleged tainted currency notes and the manner in which the tainted currency notes were allegedly recovered, is doubtful. 11. It is manifest therefore, that the evidence of the prosecution witnesses, on the point of recovery of the alleged tainted currency notes and the manner in which the tainted currency notes were allegedly recovered, is doubtful. 11. The only evidence which has been brought on record in support of the prosecution's case is the evidence regarding the fact that the appellant's hands on being dipped in the solution of the sodium carbonate, the solution had turned pink and that the Forensic Report confirmed, the presence of Phenolphthalein powder in the bottle containing the appellant's hands' wash solution. Learned counsel for the Respondent would argue that the undisputed fact that the appellant's hand wash in the solution of the sodium carbonate having turned pink, leads to the presumption that he had received the tainted currency notes with his hands and this evidence in itself, is sufficient to lead to the presumption that the appellant had received money by way of illegal gratification. 12. This argument of the learned counsel could have been appreciated, had the prosecution brought any cogent and reliable evidence to lay the foundational facts for giving rise to the statutory presumption under Section 20 of the Act. As has already been observed, the evidence adduced by the prosecution in respect of both demand and acceptance is doubtful, since there is no direct evidence on these two issues. Furthermore, admittedly, the tainted currency notes were not recovered from the personal possession of the appellant on his personal search. It is admitted by the prosecution's witnesses that after entering into the chamber, the officials of the C.B.l. had firmly held both the hands of the appellant. The appellant in his statement had denied the acceptance of the bribe amount. Under such circumstances, the mere fact that the appellant's hands turned pink on being dipped in the solution of the sodium carbonate, cannot lead to the conclusive inference and the presumption that his hands were tainted only because he had received the money with his hands. 13. The appellant in his statement had denied the acceptance of the bribe amount. Under such circumstances, the mere fact that the appellant's hands turned pink on being dipped in the solution of the sodium carbonate, cannot lead to the conclusive inference and the presumption that his hands were tainted only because he had received the money with his hands. 13. In the case of Diwesh Narayan Raizada vs. State of Bihar reported in 2006(4) J.C.R. 393 (Jhr.) [: 2006(4) JLJR 360 ], this Court while considering similar facts has held in the following terms:- "In the facts stated above, even if the prosecution version is accepted that the appellant's hands were washed by the raiding party and residue wash became pink, it is difficult to presume that his fingers were tainted only because he had received the money in his hand. Witnesses including C.B.l. officials have accepted in cross-examination that the raiding party caught hold the hands of the appellant and he denied having acceptance of the money. It was further admitted by the witnesses, Lakhi Prasad, Ashok Kumar Asthana and Ram Chandra Choudhary that the appellant's hands were caught by them. In such circumstances, the presumption suggested by the prosecution is not attracted." From the evidence of the prosecution witnesses, it appears that the independent witness, namely, P.W. 12 has not supported the prosecution's case regarding demand and acceptance of money by the appellant. The prosecution has sought to place reliance on the testimony of its departmental witness, namely, P.W. 11, but his evidence suffers from serious infirmities and contradictions. The evidence of P.W. 1, that he had seen and overheard the transaction of demand and acceptance of money by the appellant, if read together with the evidence of P.W. 4, becomes highly doubtful. The only witness, who could have lent credible support to the prosecution's case, being the complainant has not been examined for whatever reasons. Thus, as already observed, the evidence on the point of demand and acceptance of bribe has not been proved by the prosecution beyond all reasonable doubt. Merely because the appellant's hand-wash suggested incriminating evidence cannot, in itself, attract the application of Section 20 of the Act. Thus, as already observed, the evidence on the point of demand and acceptance of bribe has not been proved by the prosecution beyond all reasonable doubt. Merely because the appellant's hand-wash suggested incriminating evidence cannot, in itself, attract the application of Section 20 of the Act. This view finds support from the judgment and the ratio decided by the Supreme Court in the case of Om Prakash vs. State of Haryana (supra) and also in the case of State of Maharashtra vs. Dayanesh Laxman Rao Wankhede (supra). The judgments cited by the learned counsel for the Respondent-CB.l., reported in A. l. A. (2001) SC 318 and AIR (1973) SC 28, in view of the fact that the ratio decided in the two cases are in the context of the provisions of Section 20 of the Act and explain that the legal presumption under the provision of the Section would immediately arise, once, the prosecution is able to prove that the accused had accepted or agreed to accept the illegal gratification. In the present case, as already observed, the evidence on these two issues, both in respect of demand and acceptance is deficient and cannot be deemed to be proved beyond reasonable doubt. Under such circumstances, neither could the legal presumption under Section 20 of the Act arise, nor could the onus shift upon the accused to rebut any such presumption. 14. In the light of the facts and circumstances and the discussions from the impugned judgment of the court below, I find that the learned court below has erred in placing implicit reliance on the testimony of P.W. 1 and P.W. 11 as also on the testimony of the Investigating Officer (P.W. 13). While doing so, the trial court has ignored the vital contradictions as appearing in the evidence of these two witnesses, read in the context of the evidence of P.W. 4, as explained above. The trial court has also ignored the fact that the independent witness, P.W. 12, who was not being declared hostile, has not supported the prosecution's case on the point of demand and acceptance and also on the point of recovery of the tainted currency notes. 15. The trial court has also ignored the fact that the independent witness, P.W. 12, who was not being declared hostile, has not supported the prosecution's case on the point of demand and acceptance and also on the point of recovery of the tainted currency notes. 15. In the light of the facts and circumstances and the discussions made above, I find that the prosecution has not been able to prove either of the charges under Section 7 of the Act or under Section 13(2) read with Section 13(1) (d) of the Act against the appellant beyond all reasonable doubt. The benefit of such deficiency has to be given to the appellant, who has already suffered the rigors of the protracted trial for more than 17 years. 16. In the result, this appeal is allowed. The impugned judgment of conviction and the order of sentence dated 24.12.2001, passed by the Special Judge, C.B.l. in R.C. Case No. 19(A) of 1993(B) against the appellant is hereby set aside. The appellant who is on bail, is absolved from the liability of his bail bonds.