Research › Search › Judgment

Kerala High Court · body

2011 DIGILAW 589 (KER)

Parameswaran Pillai R. (Dr) v. State of Kerala

2011-06-15

P.S.GOPINATHAN

body2011
JUDGMENT : P.S. Gopinathan, J. The accused in CC 4 of 2002 on the file of the Enquiry Commissioner & Special Judge, Thiruvananthapuram, is the appellant. He was working as a Civil Surgeon in the Primary Health Centre, Pulluvila, in January and February, 2001. PW 5 Suganthy, wife of PW4 was admitted in the Primary Health Centre on 27/01/2001 with viral fever. According to the prosecution, at the time of admission, the appellant asked whether they had brought the fees. Responding to the query Rs. 50/- was paid by PW 4. PW 5 was admitted in the Primary Health Centre; but there was no improvement. The other patients in the hospital stated that unless the doctor was paid well, they won't get proper treatment. On 30/01/2001, PW 4 met the appellant in his consulting room near the Primary Health Centre and paid Rs. 50/-. Thereafter, medicine was changed. Since the temperature remained steady PW 4 again met the appellant on 01/02/2001. According to the prosecution, the appellant demanded Rs. 2501/- as bribe. Being got aggrieved, PW 4 made a complaint to the Superintendent of Police, Vigilance &Anti Corruption Bureau, Thiruvananthapuram. On advice, PW 4 went to PW 6, the Deputy Superintendent of Police on 03/02/2001 at 10 a.m. and gave Ext. P8 First Information Statement PW 6 recorded Ext. P8 and registered a case as Crime No. VC. 4/2001 against the appellant for offence under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act (for short, "PC" Act). Ext. P10 is the First Information Report. PW 6 made arrangements for trapping the appellant. He procured two independent witnesses of whom one was examined as PW 1, an Assistant Director of Industries and Commerce. The independent witnesses were appraised of the nature of the complaint and phenolphthalein test was demonstrated in the presence of PW 1, PW 4 and other independent witnesses. PW 4 had brought a 100 Rupee note which was marked as MO 1. PW 6 got the same, smeared phenolphthalein powder and entrusted back to PW 4 to keep in safe custody with instruction to give to the appellant in the event of repetition of demand. A mahazar was prepared regarding the demonstration of phenolphthalein test and entrusting of MO 1 to PW4. PW6 took PW 1,4 and other independent witnesses along with the raid party and proceeded to the Primary Health Centre. A mahazar was prepared regarding the demonstration of phenolphthalein test and entrusting of MO 1 to PW4. PW6 took PW 1,4 and other independent witnesses along with the raid party and proceeded to the Primary Health Centre. They took positions and sent PW 4 to the appellant with direction to give signal in the event of acceptance of bribe by the appellant. The appellant was on leave. PW 4 came to understand that the appellant would be available only on 5th, the following Monday. The matter was in formed to PW 6. Accordingly, PW 6 returned with instruction to PW 4 to report on 5th. On 05/02/2001, PW 4 reported before PW 6. Phenolphthalein powder was again smeared over MO 1 and handed over to PW 4 again with instruction to pay it to the appellant only on repetition of demand. Ext. P2 mahazar was prepared. PW 6 along with the officials and the independent witnesses including PW 4 proceeded to the Primary Health Centre. PW 6 and the party took positions at different places near the Health Centre. PW 4 went to the appellant. According to PW 4, the appellant repeated demand. MO 1 was handed over to the appellant. The appellant: accepted the same and put it in the drawer of the table. PW4 came out and conveyed signal,; responding to which PW 6 along with PW 4 and other officials rushed to the appellant. PW61 disclosed his identity and introduced PWs 1, 4 and other independent witnesses to the appellant PW 6 subjected himself to phenolphthalein test. Thereafter the hands of the appellant were subjected to separate phenolphthalein test which turned positive. When asked, the appellant stated that PW 4 had deliberately thrust the currency note into the drawer of the table. The, drawer of the table was got opened. MO 1 was found lying inside the drawer. It was ceased and subjected to phenolphthalein test which also turned positive. A ball pen and a cover found inside the drawer were also subjected to phenolphthalein test which turned positive. MOs7 and 8 are the cover and ball pen. The appellant was arrested and Ext.P3 recovery mahazar was prepared. Thereafter, the attendance register and the case sheet which were marked as Exts. P5 and P6 respectively, were seized after preparing Ext. P4 recovery mahazar. The investigation was taken over by PW 6. MOs7 and 8 are the cover and ball pen. The appellant was arrested and Ext.P3 recovery mahazar was prepared. Thereafter, the attendance register and the case sheet which were marked as Exts. P5 and P6 respectively, were seized after preparing Ext. P4 recovery mahazar. The investigation was taken over by PW 6. After completing the investigation, a final report accusing the appellant for the above offence was filed before the Trial Court. 2. The learned Special Judge took cognizance and issued process responding to which. The appellant entered appearance. He was furnished with a copy of the final report and connected documents. Either side was heard on finding that there are materials to send the appellant for trial, a charge for the said offence was framed. When read over and explained, the appellant pleaded not guilty. Hence he was sent for trial. 3. On the side of the prosecution, PWs 1 to 6 were examined and Exts. P1 to P10 were marked. MOs 1 to 8 were also marked. After closing the evidence for the prosecution, the appellant was questioned under section 313(i)(b) of the Code of Criminal Procedure. The appellant denied the incriminating evidence. Further, he stated that he was falsely implicated at the instance of Ms. Jayajyothi, an Upper Division Clerk employed in the Health Centre and that he had neither demanded any gratification nor accepted anything from PW 4 or PW 5. Another Upper Division Clerk in the Public Health Centre was examined as DW 1 to prove Ext. D1 file in support of the defence plea that some disciplinary proceedings were initiated as against Ms. Jayajyothi. The learned Special Judge, on appraisal of the evidence, arrived at a conclusion that the prosecution had succeeded to establish the offence against the appellant. Consequently, the appellant was convicted and sentenced to rigorous imprisonment for one year and a fine of Rs. 3,000/- with a default sentence of simple imprisonment for one month for offence under Section 7 of the PC Act. For offence under Section 13(2) read with Section 13(1)(d) of the PC Act, he was sentenced to rigorous imprisonment for one year and a fine of Rs. 5,000/ -with a default sentence of simple imprisonment for two months. Assailing the above conviction and sentence, this appeal was preferred. 4. I have heard Sri. Pirappancode V.S. Sudheer and the learned Public Prosecutor Sri. 5,000/ -with a default sentence of simple imprisonment for two months. Assailing the above conviction and sentence, this appeal was preferred. 4. I have heard Sri. Pirappancode V.S. Sudheer and the learned Public Prosecutor Sri. B. Vinod and perused the evidence on record. 5. PW 2, another Medical Officer attached to the Public Health Centre had deposed that during January and February, the appellant was working as Medical Officer in the Public Health Centre, Pulluvila. The evidence of PWs 4 and 5 also would show that the appellant was working as the Medical Officer in the Public Health Centre, Pulluvila. Their evidence regarding tie official status of the appellant was not at all impeached in cross examination. The learned counsel fairly submitted that the appellant is not assailing the finding of the Trial Court on that aspect and that he is conceding that the appellant was working as a Civil Surgeon in the Public Health Centre, Pulluvila. Therefore, I concur with the lower court in finding that the appellant was a public servant coming under Section 2 (c) of the PC Act. PW 3, an Under Secretary attached to the Vigilance Department proved Ext. P7 order issued by the Principal Secretary, according sanction to prosecute the appellant. Learned counsel for the appellant submitted that he is not assailing Ext. P7 sanction order. In the above circumstance, I also concur with the Trial Court and find that the appellant was prosecuted with due sanction. 6. Regarding the acceptance and demand of the illegal gratification, the prosecution would rely upon the oral testimony of PWs 1, 4, 5 and 6 coupled with Exts. P3 and P8. 7. PW 1 would depose that while he was working as Assistant Director of Industries and Commerce, he got instruction to report before PW 6 to assist PW 6 in a case. Accordingly, on 03/02/2001, he reported before PW6. PW 6 had also summoned another witness who is shown as witness No.4 (CW.4) in the final report. PW 4 was in the office of PW 6. PW 1 and the other witnesses were appraised of the nature of the complaint of PW 4 and PW 4 was introduced to them. Thereafter, phenolphthalein test was demonstrated. A ten rupee note was smeared with phenolphthalein powder and it was dipped in calcium solution which turned pink. MO 2 is the solution used for dipping the currency note. PW 1 and the other witnesses were appraised of the nature of the complaint of PW 4 and PW 4 was introduced to them. Thereafter, phenolphthalein test was demonstrated. A ten rupee note was smeared with phenolphthalein powder and it was dipped in calcium solution which turned pink. MO 2 is the solution used for dipping the currency note. Thereafter, MO 1 currency note was obtained from PW4. It was smeared with phenolphthalein powder and entrusted to PW4wi instruction to pay on demand of gratification. A mahazar, wherein PWs 1,4 and other witnesses are attesters, was prepared. Before smearing phenolphthalein powder on MO 1, PW 6 affixed his signature on the middle of MO 1. Thereafter, they proceeded to the spot. PW 4 was sent to the Health Centre. A little later, PW 4 returned stating that the appellant was on leave. PW 6 and party returned with instruction to PWs 1,4 and CW.4 to report before him at 10 a.m. on 05/02/2001. Accordingly, all of them reported before PW 6 on 05/02/2001. MO 1 currency note was again smeared with phenolphthalein - powder and entrusted to PW 4 with instruction to hand it over only on demand. Ext.P2 mahazar was prepared. By about 10.30 a.m. they proceeded to the Primary Health Centre. At the instruction of PW 6, PW 1 and others took different positions. PW 4 was sent to the appellant. After some time, PW 4 returned and conveyed signal. Thereupon, PW 4 along with PWs 1, 4 and CW.4 along with raid part} rushed to the room of the appellant. PW 6 disclosed his identity and introduced PWs 1,4 and others and asked whether PW 4 had given anything to the appellant. The appellant stated that PW 4 had put a 100 rupee note inside the drawer of his table. When PW 6 asked PW4asto what had happened, PW 4 stated that the appellant asked whether PW 4 had brought money and when answered affirmatively, the appellant stretched his hand, got the money and put it inside the drawer of the table. Calcium solution was prepared and the hands of PW were subjected to phenolphthalein test. Result was negative. MO 2 is the solution. Thereafter, both hands of the appellant were subjected to phenolphthalein test which turned positive MOs 4 and 5 are the solutions used for the test. Calcium solution was prepared and the hands of PW were subjected to phenolphthalein test. Result was negative. MO 2 is the solution. Thereafter, both hands of the appellant were subjected to phenolphthalein test which turned positive MOs 4 and 5 are the solutions used for the test. The drawer of the table was got opened Inside the drawer of the table, MO 1 was lying near a ball pen and over a cover. It was taken cut and subjected to phenolphthalein test which also turned positive. MOs 7 and 8 are the cover and ball pen found inside-the drawer. MO 7 and 8 were also subjected to phenolphthalein test which also turned positive. The appellant was arrested and Ext. P3 recovery mahazarwas prepared. Thereafter, the attendance register and case sheet were recovered after preparing Ext. P4 recovery mahazar. 8. PW 2 was examined by the prosecution to prove that PW 5 was admitted in the hospital by the appellant and that the appellant was on leave on 3rd and 4th February, 2001 and that Exts. P5 and P6 are the attendance register and case sheet and that in Ext. P6 the appellant had prescribed medicines. PW 2 had also deposed that amidst the course of treatment some medicines were changed and substituted injection for tablets. The evidence of PW would also show that during the days on which the appellant was on leave, PW 2 had attended the patient. 9. PW 4, the defacto complainant would prove Ext. P8 F.I. Statement. He would depose that on 27/01/2001 his wife who was examined as PW 5 was admitted in the Public Heal Centre, Pulluvila where the appellant was the Medical Officer and that on the date of admission Rs. 50/- was given to the appellant. Since there was no improvement in the condition of PW by the treatment and other patients stated that unless the appellant was met and paid illegal gratification, PW 5 would not be cured, PW 4 went to the consulting room of the appellant an paid another sum of Rs. 50/-. Then again, the appellant demanded Rs. 250/-. As per Ext.P3, the demand was on 30/11/2001. As PW 4 had no money to pay such amount, he complained to the Vigilance and that Ext.P8 is the statement given by him. He would further deposetlial he had Rs. 50/-. Then again, the appellant demanded Rs. 250/-. As per Ext.P3, the demand was on 30/11/2001. As PW 4 had no money to pay such amount, he complained to the Vigilance and that Ext.P8 is the statement given by him. He would further deposetlial he had Rs. 100/- with him, that the Vigilance had arranged the trap, that MO 1 was smeared with phenolphthalein powder and entrusted to him for being paid to the appellant, that on 03/2/ 2001 himself along with an independent witness and police party went to the Primary Heal Centre, but the appellant was on leave and knew that the appellant would be available only on 05/02/2001. When it was informed to the Vigilance Officer, they returned and asked to come back on 05/02/2001 with MO 1. Accordingly, PW 4 reported on 05/02/2001. Again MO 1 was smeared with phenolphthalein powder and entrusted to him. He along with the officers and the independent witnesses went to the Primary Health Centre. The appellant was sitting in the out patients' room. The appellant demanded the money and it was given to him. The appellant accepted the same and kept inside the drawer of the table. PW 4 came out and conveyed signal. The trap party rushed to the office of the appellant and the appellant was subjected to time water test. 10. PW 5 had given evidence supporting the evidence of PW 4 regarding the fever and her admission in the Primary Health Centre. She would also depose that at the time of admission, the appellant asked whether they had brought the fees. Then PW 4 gave Rs. 50/- and it was accepted by the appellant. When there was no change in the fever condition, PW 5 reported the matter to the appellant. According to PW 5 the appellant asked PW 4 to meet him. She would further depose that the appellant demanded Rs. 250/- on the third or fourth day of admission of PW 5 in the Primary Health Centre. 11. PW 6, the Deputy Superintendent of Police, Vigilance & Anti Corruption Bureau, would depose that as authorised by the Superintendent of Police, he recorded Ext. P8 First Information Statement, at 10 a.m. on 03/02/2001, on the basis of which he registered a case as Crime No. 4/2001 for offence under Section 7 and 13(2) read with Section 13(2)(b) of the PC Act and Ext. P8 First Information Statement, at 10 a.m. on 03/02/2001, on the basis of which he registered a case as Crime No. 4/2001 for offence under Section 7 and 13(2) read with Section 13(2)(b) of the PC Act and Ext. P10 is the First Information Report. In response to a letter sent by the Superintendent of Police, PW1 and CW.4 reported before him. He got MO 1 Currency Note from PW4 and put his initials in the middle of it. Thereafter, phenolphthalein test was demonstrated in the presence of PWs 1,4 and CW.4. A ten rupee currency note was smeared with phenolphthalein powder and dipped in the lime water which turned pink. MO 2 is the solution. MO 1 was smeared with phenolphthalein powder and entrusted to PW 4. He, along with PW 1, PW 4 and CW.4 proceeded to the spot. PW 4 was sent to the appellant with the instruction to pay MO 1 only on demand. PW4 went inside the Health Centre. A little later, PW 4 returned stating that the appellant was on leave and he would be on duty only on 05/02/2001. PW 4 was directed to report on 05/02/2001 with MO 1 The witnesses were also given direction to report on 05/02/ 2001. PW 4, PW 1 and CW.4 reported on 05/02/2001. MO 1 was again smeared with phenolphthalein powder and given back to PW 4 for which Ext.P2 entrustment mahazar was prepared. He along with PW 1, PW 4 and CW.4 proceeded to the Primary Health Centre. By about 11.30 a.m., they reached near the Primary Health Centre. PW 4 was sent to the appellant with instruction to give signal on acceptance of MO 1 by the appellant. PW 1, PW 6 and CW.4 took different positions. A little later PW 4 came out of the room of the appellant and gave signal which was conveyed to the witnesses and the raid party. PW 6 rushed to the room of the appellant along with PW 4 and witnesses. He disclosed his identity and asked the appellant whether PW 4 had given anything to him. The appellant replied that PW 4 had thrust Rs. 100/- inside the drawer of the table. PW 6 asked PW 4 as to what happened. PW 6 rushed to the room of the appellant along with PW 4 and witnesses. He disclosed his identity and asked the appellant whether PW 4 had given anything to him. The appellant replied that PW 4 had thrust Rs. 100/- inside the drawer of the table. PW 6 asked PW 4 as to what happened. PW 4 stated that when he told the appellant that he had brought the money, the appellant stretched his right hand, accepted MO 1 and kept inside the drawer. Calcium solution was prepared and the hands of PW 6 were dipped in the solution. There was no change. MO 3 is the solution. Thereafter, hands of the appellant were dipped in separate solutions. The result was positive. MOs 4 and 5 are the solutions. Since the appellant stated that the money received from PW 4was inside the drawer, PW 1 was asked to open the drawer on the right side of the table and when did so, MO 1 was found inside the drawer which was taken out and dipped in another glass of lime solution. The solution turned pink. MO 6 is the solution. MO 1 was verified with reference to Ext. P2. Then calcium solution was sprinkled inside the drawer of the table. The blue cover and the ball pen which were marked as MOs 7 and 8 responded to the calcium solution. The appellant was arrested and Ext. P3 recovery mahazar, wherein PWs 1,4 and CW 4 are attestors, was prepared. Thereafter, the attendance register and case sheet which were marked as Exts.P5 and P6 were seized after preparing Ext.P4 mahazar. PW6 took over the investigation and after completing the investigation, the charge sheet was submitted. 12. The learned counsel for the appellant submitted that the evidence of PW 4 regarding the demand and acceptance is not at all believable. Relying upon the decisions reported in Banarsi Das v. State of Haryana 2010 KHC 4232 : 2010 (4) SCC 450 : 2010 (1) KLD 638 : AIR 2010 SC 1589 : 2010 (3) SCALE 531 : 2011 CriLJ 2419, it was argued that the mere proof regarding the acceptance of the money is not at all sufficient to arrive at a conclusion regarding the demand and acceptance of illegal gratification. According to the learned counsel, in this case, there is no proof regarding the demand by the appellant though the recovery of MO 1 from the drawer of the table was not disputed. It was further argued that so long as there is no proof regarding demand, the appellant is entitled to an order of acquittal. It was also argued that the alleged payment was inside the out patients' room where there were a number of patients waiting in queue for consultation. That fact itself, according to the learned counsel, is sufficient to disbelieve PW 4. It was also submitted that none of the patients who had witnessed the so-called i acceptance of bribe was examined by the prosecution The further submission is that MO4 and MO 5 solutions used for dipping the hands of the appellant were found colourless during the course of the trial. According to the learned counsel, that alone is sufficient to disbelieve, the prosecution case. As against the said argument, the learned Public Prosecutor submitted that by course of time, the colour of the solution may fade because of the slow chemical i change. Responding to that argument, the learned counsel submitted that the prosecution should have sent the solution for chemical analysis and established that there were particles of phenolphthalein in the solution. Since the prosecution had failed to sent the solution for analysis, no reliance can be given to the oral evidence regarding the positive response to the solution when the hands of the appellant were dipped. In support of the argument, the learned counsel had also relied upon the decision reported in Ganga Kumar Srivastava v. State of Bihar 2005 KHC 1268 : AIR 2005 SC 3123 : 2005 (6) SCC 211 : 2005 CriLJ 3454, Rameshchandra Tukaram Talekar v. Si ate of Gujarat AIR 1980 Gujarat 1., Ayyasami v. State of Tamil Nadu AIR 1992 SC 644 ., G. V. Nanjundiah v. State (Delhi Administration) 1987 KHC 759 : AIR 1987 SC 2402 : 1987 Supp SCC 266 :1988 SCC (Cri) 77 were also relied upon in support of the argument. Sri. Sri. B. Vinod, learned Government Pleader, on the other hand, relied upon the decisions in State of U.P. v. Zakaullah 1998 KHC 680 : AIR 1998 SC 1474 : 1998 (1) SCC 557 : 1998 SCC (Cri) 456 : 1998 All LJ 290 :1998 CriLJ 863, State v. P K. Jain and Another 2007 KHC 6698 : 2007 CriLJ 4137, State rep. by CBI, Hyderabad v. G. Prem Raj 2009 (14) SCALE 92 and would argue that there is no reason at all to-disbelieve PWS, 4 and 6. Though there are some minor discrepancies and contradictions in the evidence of PW 4, those discrepancies are of trivial nature and have no relevance since PW 4 is a rustic villager. It was also argued that by the course of time, the pink colour of phenolphthalein solution may change due to slow chemical change and that is not at all a reason to disbelieve the prosecution case. It was further submitted that the evidence of PWs 1 and 6 that when the hands of the appellant were dipped in the sodium carbonate solution, the hands turned pink was not at all assailed in cross examination. That fact is recorded in Ext. P3. There is no reason to reject Ext. P3 which corroborates with the oral evidence. It was also submitted that the defence had not at all given any explanation as to why PW 4 had falsely implicated the appellant. 13. Having an anxious cons deration of the evidence of PWs 1,4,5 and 6 in the light of the decisions referred from either side, I find that the crucial issue is whether the evidence of PWs 1, 4 and 6 instil confidence The nature of the defence itself would show that MO 1 currency note was inside the drawer of the table of the appellant According to the appellant, PW4 thrust MO 1 inside the drawer. But it is crucial to note that when PW 6 entered the room of the appellant, the drawer of the table was in closed state. If it is a case of thrusting MO1 by PW4 into the open drawer of the table against the will of the appellant, MO1 should have been thrown out by the appellant. Instead he closed the drawer. That conduct of the appellant itself would show that it is a case of voluntary acceptance and not a case of cooking evidence. If it is a case of thrusting MO1 by PW4 into the open drawer of the table against the will of the appellant, MO1 should have been thrown out by the appellant. Instead he closed the drawer. That conduct of the appellant itself would show that it is a case of voluntary acceptance and not a case of cooking evidence. Therefore, the defence of thrusting MO 1 didn't appear probable. Though the appellant had got a case that an Upper Division Clerk working in the Primary Health Centre had some axe to grind against the appellant and PW 4 was a tool in the hands of that clerk, there is no supporting evidence. Ext. D1 file was produced to show that some action was initiated against the said clerk. Though it was stated that the said clerk was a relative of PW 4 no material was brought on record to show that PW 4 was anyway related to that clerk or that PW 4 was subjected to any sort of influence by any person including the delinquent clerk. PW 4 had even denied of having any acquaintance with the said clerk. So the defence that PW 4 was a tool in the hands of the Upper Division Clerk who had some animosity with the appellant was not at all established. There is no material on record to show that PW 4 was in anyway ill-motivated against the appellant. So also there is nothing on record to show that either PW 1 or PW 6 had got any axe to grind against the appellant to fabricate this case. 14. The defence that MO 1 was thrust inside the drawer of the table of the appellant itself supports the evidence of PWs 1,4 and 6 regarding the recovery of MO 1 from the drawer of the table. Whether it was thrust into the drawer as suggested by the defence alone is the crucial question. I had earlier mentioned about the presumption that could be drawn from the closed drawer. In this juncture, the evidence of PWs 1 and 4 regarding phenolphthalein test on the hands of the appellant and the positive response assumes significance. I have carefully gone through the evidence of PW 1 and 6 regarding the phenolphthalein test conducted on the hands of the appellant. In this juncture, the evidence of PWs 1 and 4 regarding phenolphthalein test on the hands of the appellant and the positive response assumes significance. I have carefully gone through the evidence of PW 1 and 6 regarding the phenolphthalein test conducted on the hands of the appellant. As pointed out by the learned Government Pleader, in fact, there is no much challenge against the evidence of PWs. 1 and 4 that when the hands of the appellant were subjected to phenolphthalein test, the solution and hands turned pink. As against that, as argued by the learned counsel for the appellant, now MO 4 and MO 5 solutions remain colourless. The learned Government Pleader canvassed my attention to the decision reported in State v. P.K. Jain at para 13. It was observed as follows: "The coloured phenolphthalein solution has a tendency to gradually fading away with passage of time varying up to several months. Its intensity may considerably decrease. On the other hand, if the alkaline solution of phenolphthalein was only pink to light pink initially it may almost become colourless after a passage of several weeks to months. Moreover concentration of sodium carbonate should be kept to the minimum (say 0.05 N) as higher concentration of alkali would hasten the degradation of phenolphthalein and consequent loss of colour". A copy of the Internet Journal of Forensic Science was made available to me by the learned counsel for the appellant. It would suggest that 'phenolphthalein is a weak acid and is almost unionized. Its unionized molecules are colourless whilst on ionization give colourless (H+) and pink coloured phenolphthalein ions. In the presence of acid due to increase in the concentration of common ions (H+), the dissociation of phenolphthalein is suppressed and thus the solution becomes colourless. So, the possibility of phenolphthalein solution turning colourless by cowl of time due to slow chemical changes cannot be ruled out. In the presence of acid due to increase in the concentration of common ions (H+), the dissociation of phenolphthalein is suppressed and thus the solution becomes colourless. So, the possibility of phenolphthalein solution turning colourless by cowl of time due to slow chemical changes cannot be ruled out. For that reason, it is not at all possible to come to a conclusion that the evidence of PWs 1, 4 and 6 is not believable in State of U.P. v. Zakaullah 1998 KHC 680: AIR 1998 SC 1474 : 1998 (1) SCC 557 : 1998 SCC (Cri) 456 : 1998 All LJ 290 : 1998 Crlj 863 , an argument was advanced that the failure of the prosecution to send the phenolphthalein solution for chemical analysis would canvass interference in favour of the defence. Referring to that, the apex Court observed in Para 13 at page 1476 as follow "We have not come across any case where a trap was conducted by the police in which the phenolphthalein solution was sent to the Chemical Examiner. We know that the said solution is always used not because there is any such direction by the statutory provision, but for the satisfaction of the officials that the suspected public servant would have really handled the bribed money" In the light of the ruling of the Apex Court, I find that the failure of the prosecution font sending the phenolphthalein solution for chemical examination and to bring on record that there is trace of phenolphthalein powder is also not at all a reason to arrive at a conclusion against the prosecution. 15. For one more reason also, the colour change of the solution is insignificant. PWs 4 and 6 are harmonious about the change of colour of calcium solution when the hands offs appellant were dipped. Their evidence as that aspect which is corroborated by Ext. P3 Mahazar a contemporaneous document, was not assailed in cross examination. As stated earlier there is nothing to suggest that PWs. 1, 4 and 6 are telling lie. In the light of the evidence of PWs 1, 4 and 6, it is evident that the solution became colourless by course of time because of the chemical change. P3 Mahazar a contemporaneous document, was not assailed in cross examination. As stated earlier there is nothing to suggest that PWs. 1, 4 and 6 are telling lie. In the light of the evidence of PWs 1, 4 and 6, it is evident that the solution became colourless by course of time because of the chemical change. It is also crucial to note that the appellant has no case that the pit colour of calcium solution when mixed with phenolphthalein is a permanent colour or that thereafter there is no possibility for chemical action or change of colour. Therefore, it is legitimate to conclude that M.Os. 4 and 5 solutions became colourless only because of the subsequent chemical action and it would no way affect the credibility of PWs 1, 4 and 6 or Ext. P3. 16. Section 20 of the Prevention of Corruption Act canvasses a presumption in favour| the prosecution that once it is established that the public servant had accepted gratification has to be presumed that it was demanded and accepted for the discharge of the official duties. 17. In this case, absolutely there is no explanation as to how or for what reason PW4 happened to make payment of MO 1 to the appellant. The appellant has no case that he has got any other monetary transaction with PW4. On a careful reading of the evidence of PW4 I find that there are certain minor discrepancies and contradictions in his evidence as stated earlier. According to the learned counsel for the appellant, as per the statement in Ext. P8, H demand was on 30/01/2001. But in the witness box he had stated that the demand was on 01/02/2001. It is true that PW 4 had given such an evidence. But when he was confronted with the statement in Ext. P8 he had deposed that the date he stated in Ext. P8 is correct. In MB cross examination by the Public Prosecutor, it was stated that he did not exactly remember the date. So the discrepancy regarding the date of demand is not at all a reason to disbelieve the evidence of PW4, a rustic villager, as such. Like that, a reading of the evidence of PW4 and 5 would show that there is also some discrepancy as to with whom the appellant had made the demand for illegal gratification. So the discrepancy regarding the date of demand is not at all a reason to disbelieve the evidence of PW4, a rustic villager, as such. Like that, a reading of the evidence of PW4 and 5 would show that there is also some discrepancy as to with whom the appellant had made the demand for illegal gratification. According to PW 5, the demand was made to According to PW 4, the demand was made to him. Flaving taken into consideration the rum nature of the witnesses and the circumstance that led to the payment of gratification and that the evidence was recorded more than two years after the incident, I find that such discrepancy in the evidence is trivial and not at all a reason to disbelieve the prosecution case, especially when there is no material on record to come to a conclusion that either PW 4 or PW 5 had got any axe to grind against the appellant. So also, there is nothing on record to find that PW 6 was susceptible to any source of influence by PW 4 and to implicate the appellant with a crime of this nature. The evidence of PW 1 would show that he was working as an Assistant Director. No doubt he is a responsible officer. No suggestion was made to PW 1 that PW 1 was anyway having any favour or disfavour either with the prosecution or with the defence. In he light of the evidence of PW 1, the failure of the prosecution to examine the patients who were inside the room of the appellant is not much relevant. The question arises is whether the evidence available on record is believable and it is not at all relevant whether the prosecution could have collected more evidence or more number of witnesses could have been examined. 18. It was also argued by the learned counsel for the appellant that there is no evidence on record to show that there was any omission on the part of the appellant for rendering proper treatment to PW 5. Therefore, there was no occasion to demand or pay bribe. It is true that the prosecution has also no case that there was any omission on the part of the appellant in treating PW 5. Therefore, there was no occasion to demand or pay bribe. It is true that the prosecution has also no case that there was any omission on the part of the appellant in treating PW 5. But that is not at all a reason to come to a conclusion that there was no demand or acceptance of illegal gratification by the appellant. Demand for bribe can be made even while giving proper treatment. The evidence of PW4 and 5 would show that on previous two occasions also, the appellant had accepted Rs. 50/- each. Of course, at that time there was no complaint regarding demand for illegal gratification. It appears that PW 4 cared to complain when there was repeated demand. Ext. P8 corroborate with the evidence of PW 4 regarding demand of bribe. The evidence on record would suggest that the appellant was demanding illegal gratification without rendering proper treatment; but he was making the demand and acceptance while rendering proper treatment. 19. The learned counsel for the appellant further submitted that the raid party proceeded to the Primary Health Centre in three vehicles and there were a number of persons in the trap party and their presence in and around the Health Centre itself would have given indication -regarding the trap and in the normal course, no sensible person would accept any money from PW4. On a careful reading of the evidence of PWs 1,4 and 6,1 find nothing on record to come to a conclusion that in fact the appellant who was sitting in the out patients' room had any occasion to see the raid party arriving at the public road or near the Primary Health Centre. So, that reason is not at all sufficient to disbelieve the prosecution. Yet another argument advanced is that the evidence of PWs 4 and 5 would show that soon after the trap P W 5 left the hospital. According to PWs 4 and 5, they were taken in the vehicle in which PW 6 and party arrived at the Primary Health Centre. But PW 6 had denied of having taken PW 5 from the hospital. The evidence of PW2 would show that PW 5, soon after the trap, absconded from the Health Centre. According to PWs 4 and 5, they were taken in the vehicle in which PW 6 and party arrived at the Primary Health Centre. But PW 6 had denied of having taken PW 5 from the hospital. The evidence of PW2 would show that PW 5, soon after the trap, absconded from the Health Centre. The contradiction in the evidence of PWs 4, 5 and 6 on that aspect is not at all a reason to disbelieve the recovery of MO 1 from the drawer of the table because it is nothing relating to the offence alleged or subject matter of evidence. In the normal course, PWs 4 and 5 cannot expect further safe treatment from the Health Centre as there is every likelihood of other doctors not favouring them. In such background, if they left the Health Centre, there is nothing unusual. 20. On an anxious consideration of the evidence on record and in the light of the decisions referred above, I find no reason to interfere with the finding of the guilt arrived at by the Trial Court. The conviction is based upon cogent evidence. The minor discrepancies and contradictions noted in the evidence is not at all sufficient reason to interfere with the conviction and sentence under challenge. 21. The learned counsel for the appellant submitted that the appellant retired from service on 31/01/2002 and that the award of rigorous imprisonment is very harsh. Taking note that the appellant is a hexagenerian I find that simple imprisonment would meet the end so 1 justice. The term of imprisonment calls for no interference. 22. In the result, while confirming the conviction, the sentence of rigorous imprisonment is modified to a sentence of simple imprisonment. In all other respects, the conviction and sentence under challenge are confirmed. The substantive sentences shall run concurrently the under trial imprisonment, if any, shall be set off.