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2018 DIGILAW 305 (ORI)

Baisakhu Kumar Karna v. State of Odisha (Vig. )

2018-03-26

S.K.SAHOO

body2018
JUDGMENT : S.K. Sahoo, J. The appellant Baisakhu Kumar Karna faced trial in the Court of learned Special Judge, Vigilance, Berhampur, Ganjam in G.R. Case No. 23 of 2006 (T.R. No.33 of 2008) for offences punishable under section 7 and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter ‘1988 Act’) on the accusation that on 28.11.2006 being a public servant employed as Junior Clerk in the District Welfare Office, Boudh, he accepted an amount of Rs.1000/- from the complainant Debasis Mohakul (P.W.1) as gratification other than legal remuneration as a motive for doing an official act, such as, for preparing and sending the compliance report to the letter no.47516/SSD dated 29.12.2005 of the Govt. of Orissa, SC & ST Department, Bhubaneswar in connection with the post applied for by Sanjib Kumar Gurandi (P.W.6), due to death of his father Hadibandhu Gurandi on 26.03.2002 while he was in service as Sevak at Kumar Keli Ashram in the district of Boudh and thereby abused his position as such public servant by obtaining for himself pecuniary advantage to the extent of Rs.1000/- from P.W.1. The learned trial Court vide impugned judgment and order dated 26.06.2012 found the appellant guilty of the offences charged and sentenced him to undergo S.I. for six months and to pay a fine of Rs.500/-, in default, to undergo S.I. for one month under section 7 of the 1988 Act and further to undergo S.I. for one year and to pay a fine of Rs.1000/-, in default, to undergo S.I. for three months under section 13(2) read with section 13(1)(d) of the 1988 Act and both the substantive sentences of imprisonment were directed to run concurrently. 2. The factual matrix of the prosecution case, as per the written report presented by P.W.1 Debasis Mohakul before the Superintendent of Police, Vigilance, Berhampur on 27.11.2006 is that his father-in-law Hadibandhu Gurandi was serving as Sevak at Kumar Keli Ashram, Boudh which was a Government service. While he was in service, on 26.03.2002 he died. His brother-in-law namely Sanjib Kumar Gurandi (P.W.6) applied for service in the place of his deceased father under rehabilitation scheme. All the necessary documents in connection with the service were sent by the District Welfare Officer, Boudh to the Govt. of Orissa, SC & ST Department by letter no.635 dated 14.06.2004. While he was in service, on 26.03.2002 he died. His brother-in-law namely Sanjib Kumar Gurandi (P.W.6) applied for service in the place of his deceased father under rehabilitation scheme. All the necessary documents in connection with the service were sent by the District Welfare Officer, Boudh to the Govt. of Orissa, SC & ST Department by letter no.635 dated 14.06.2004. The SC & ST Department by letter no.47516 dated 29.12.2005 sought for some clarification from District Welfare Officer, Boudh. P.W.6 was staying 80 kms. away from the District Welfare Office, Boudh and his financial condition was also not good. He came to the District Welfare Office on eight to ten occasions in connection with his service and met the appellant who was the Junior Clerk in the said office and also District Welfare Officer and requested them to send the necessary documents to the Government. P.W.1 was also visiting the office of D.W.O. along with P.W.6. When P.W.6 told the appellant that it would not be possible on his part to come to the office from such a long distance spending money, the appellant gave assurance to P.W.6 to do his work. On 24.11.2006 when P.W.1 met the appellant in his office and made a query about the dispatch of letter to the Government, the appellant demanded bribe of Rs.1000/- (one thousand only) for dispatching the letter and in spite of repeated request of P.W.1, he did not listen anything rather told him that unless the bribe amount is paid on or before 28.11.2006, the letter would not be dispatched to the Government. It is further stated in the written report that the complainant had decided to pay the bribe amount of Rs.1000/- to the appellant against his will. On the basis of such written report, Berhampur Vigilance P.S. Case No. 23 of 2006 was registered on 28.11.2006 under section 7 of the 1988 Act. 3. P.W.8 Sunil Kumar Senapati, Inspector of Vigilance, Berhampur Vigilance Division, Berhampur was directed by the Superintendent of Police, Vigilance, Berhampur to detect the case by laying a trap and to investigate the case. On 28.11.2006 a preparation for the trap was held at Vigilance Unit Office, Phulbani. 3. P.W.8 Sunil Kumar Senapati, Inspector of Vigilance, Berhampur Vigilance Division, Berhampur was directed by the Superintendent of Police, Vigilance, Berhampur to detect the case by laying a trap and to investigate the case. On 28.11.2006 a preparation for the trap was held at Vigilance Unit Office, Phulbani. Requisitions were sent to two Government independent witnesses and P.W.1 was asked to reach the Vigilance Unit Office at 8.00 a.m. In presence of all the witnesses and Vigilance Officers, P.W.1 was introduced to the trap party members and he narrated the F.I.R. story before the witnesses and also produced two nos. of five hundred rupee G.C. notes to be used in the trap. The numbers of the G.C. notes were noted down by the official witnesses. A demonstration relating to the reaction of phenolphthalein powder with sodium carbonate solution was made and the sample chemical liquid was collected in empty bottle and it was sealed. The G.C. notes were smeared with phenolphthalein powder and it was handed over to P.W.1 with instruction to give it to the appellant only on demand. A preparation report (Ext.2) was made and the trap party members signed thereon. P.W.2 Santosh Kumar Padhi was asked to accompany P.W.1 to act as over hearing witness, to see the receipt of tainted notes by the appellant from P.W.1 and then to relay signal to the trap party members. After preparation of the trap, the trap party members along with P.W.1 proceeded to the District Welfare Office, Boudh and reached there at 1.20 p.m. and parked their vehicle at a reasonable distance from the office of the appellant. P.W.1 followed by P.W.2 proceeded to the office and at 1.30 p.m. the trap party members received signal from P.W.2 and accordingly, they rushed to the spot. One of the trap party members caught hold of the hands of the appellant and identity of the trap party members was given to the appellant and he was challenged to have received the bribe amount but the appellant told that the money was thrust in his pant pocket by the complainant. The hand wash of the appellant was taken in sodium carbonate solution. The right hand wash did not show any reaction but the left hand wash turned to pink colour. Both the hand washes of the appellant were preserved in separate bottles and sealed. The hand wash of the appellant was taken in sodium carbonate solution. The right hand wash did not show any reaction but the left hand wash turned to pink colour. Both the hand washes of the appellant were preserved in separate bottles and sealed. The tainted money was recovered from the left side pant pocket of the appellant. The numbers of the G.C. notes recovered were verified and it tallied with the numbers which were noted earlier in the preparation report. The hand wash of the official witness who brought the money from the pocket of the appellant was also taken in the sodium carbonate solution and it was preserved. The left side pant pocket wash of the appellant was taken in sodium carbonate solution and that also changed its colour to pink. The bribe money, rehabilitation scheme application document, pant of the appellant, hand wash bottles and other connected documents were seized under different seizure lists and a detection report was prepared. P.W.9 Dakheen Chandra Murmu, Inspector of Vigilane, Phulbani Unit was directed by the Superintendent of Police, Vigilance to take up investigation from P.W.8. After taking over charge of investigation, P.W.9 examined the witnesses, forwarded the appellant to Court, sent the exhibits for chemical examination to R.F.S.L., Berhampur and obtained the chemical examination report (Ext.16). He placed all the documents before the Sanctioning Authority who was P.W.4 Shalini Pandit, Collector and District Magistrate, Boudh who after verification of the F.I.R., case diary, preparation report, detection report, seizure lists, chemical examination report and after application of mind, being satisfied about the existence of prima facie case, accorded sanction for prosecution of the appellant as per sanction order Ext.14. On completion of investigation, P.W.9 submitted charge sheet on 12.09.2007 against the appellant under sections 7, 13(2) read with 13(1)(d) of the 1988 Act. 4. The defence plea of the appellant was one of complete denial of the occurrence and it was pleaded that the bribe money was forcibly thrust in his pant pocket by the complainant. 5. In order to prove its case, the prosecution examined nine witnesses. P.W.1 Debasis Mohakul is the informant in the case and he along with his brother-in-law (P.W.6) stated to have met the appellant for pursuing the application of P.W.6 for service under rehabilitation scheme. He stated about the demand of bribe by the appellant. 5. In order to prove its case, the prosecution examined nine witnesses. P.W.1 Debasis Mohakul is the informant in the case and he along with his brother-in-law (P.W.6) stated to have met the appellant for pursuing the application of P.W.6 for service under rehabilitation scheme. He stated about the demand of bribe by the appellant. He further stated about the preparation for the trap and how he put the currency notes into the left side pant pocket of the appellant on the verandah of the office of the appellant. He further stated about the change of left hand wash of the appellant to pink colour and also recovery of money from the pant pocket of the appellant. He proved the written report (Ext.1), preparation report (Ext.2) and detection repot (Ext.3). He was declared hostile by the by the Special Public Prosecutor for not supporting the case of prosecution fully and cross-examined. P.W.2 Santosh Kumar Padhy was the Junior Clerk attached to the office of E.E., R.W. Division, Phulbani who stated about the preparation for the trap. He acted as an over hearing witness to the trap and relayed signal to the trap party members after acceptance of bribe money by the appellant from P.W.1. He also stated about the change of left hand wash of the appellant to pink colour and also recovery of money from the pant pocket of the appellant. He is also a witness to the seizure of different articles and documents as per seizure lists Exts. 4, 5, 6, 7, 8, 9, 10 and 11. P.W.3 Sanjeeb Kumar Rath was the Junior Engineer attached to the office of R.W., Phulbani who stated about the preparation for the trap. He stated about the change of left hand wash of the appellant to pink colour and also recovery of tainted money from the pant pocket of the appellant. He is a witness to the seizure of one official file from the table of the appellant under seizure list Ext.13. P.W.4 Salini Pandit was the Collector and District Magistrate of Boudh District and she accorded sanction for prosecution of the appellant as per sanction order Ext.14. P.W.5 Aswin Kumar Mallik was the Clerk in the District Welfare Office who stated about the seizure of documents by the Inspector of Vigilance on 09.03.2007 as per seizure list Ext.15. P.W.4 Salini Pandit was the Collector and District Magistrate of Boudh District and she accorded sanction for prosecution of the appellant as per sanction order Ext.14. P.W.5 Aswin Kumar Mallik was the Clerk in the District Welfare Office who stated about the seizure of documents by the Inspector of Vigilance on 09.03.2007 as per seizure list Ext.15. P.W.6 Sanjb Kumar Gurandi is the brother-in-law of the informant and he stated about his application for service under rehabilitation scheme was forwarded from the office of D.W.O. to Government. P.W.7 Braja Mohan Pradhan was the Inspector of Vigilance, Phulbani Unit who stated about the preparation for trap, receipt of signal from P.W.2, about the change of left hand wash of the appellant to pink colour and also recovery of money from the pant pocket of the appellant. P.W.8 Sunil Kumar Senapati, Inspector of Vigilance, Berhampur Vigilance Division, Berhampur was the trap laying officer who as per direction of Superintendent of Police, Vigilance, Berhampur made preparation for the trap in the Vigilance Unit Office, Phulbani on 28.11.2006. He stated about the change of left hand wash of the appellant to pink colour and also recovery of tainted money from the pant pocket of the appellant. He also effected some seizure as per seizure lists Exts.4 to 13. P.W.9 Dakhina Charan Murmu was the Inspector of Vigilance, Phulbani Unit who is the Investigating Officer and he submitted charge sheet. The prosecution exhibited sixteen documents. Ext.1 is the first information report, Ext.2 is the preparation report, Ext.3 is the detection report, Exts. 4, 5, 6, 7, 8, 9, 10, 11, 13 and 15 are seizure lists, Ext.12 is the 164 Cr.P.C. statement of P.W.2, Ext.14 is the sanction order and Ext.16 is the chemical examination report. The prosecution proved nine material objects. M.O.I is the tainted G.C. notes, M.O.II to M.O.VII are the sample bottles, M.O.VIII is the brass seal and M.O.IX is the full pant. The appellant exhibited three documents. Ext.A is the Letter No.1504, dated 8.12.2009 of Deputy Collector, Ext.B is the money receipt dated 11.12.2009 of Collector, Boudh and Ext.C is the File No.18/06 of D.W.O., Boudh. 6. The learned Trial Court formulated the following points for determination:- (i) Is the accused a public servant? (ii) Has he demanded and accepted Rs.1,000/- as illegal gratification from the decoy for showing some official favour to him? 6. The learned Trial Court formulated the following points for determination:- (i) Is the accused a public servant? (ii) Has he demanded and accepted Rs.1,000/- as illegal gratification from the decoy for showing some official favour to him? (iii) Whether the prosecution is able to prove the case beyond all reasonable doubts against the accused? The learned trial Court after assessing the evidence on record came to hold that there is no doubt that the accused was a public servant. It was further held the statement of P.W.2 is clear that there was demand and acceptance of bribe money by the appellant for doing the work of the decoy. The learned trial Court did not accept the defence plea and it was held that taking into account all the materials, exhibits and M.Os., conclusion is drawn that it is the appellant who was a public servant had demanded and accepted bribe which was not his legal remuneration and further held that the prosecution has ably proved the case against the appellant beyond all reasonable doubt. 7. Mr. Gautam Misra, learned counsel appearing for the appellant contended that there is no clinching evidence relating to demand of bribe money by the appellant and the statements of the witnesses relating to the demand aspect are discrepant in nature. It is further contended that there is also no clinching evidence relating to the acceptance of bribe money by the appellant and in view of the statement of the informant that he thrust the tainted money into the pant pocket of the appellant which was also disclosed by the appellant before the officers of trap party immediately thereafter, the defence plea should not have been rejected. He placed reliance in the case of B. Jayaraj Vs. State of Andhra Pradesh reported in (2014) 13 SCC 55 , Bhagirathi Pera Vs. State of Orissa reported in (2014) 58 Orissa Criminal Reports 566 and M.R. Purushotham Vs. State of Karnataka reported in (2015) 3 SCC 247 and contended that benefit of doubt should be extended in favour of the appellant. Mr. State of Andhra Pradesh reported in (2014) 13 SCC 55 , Bhagirathi Pera Vs. State of Orissa reported in (2014) 58 Orissa Criminal Reports 566 and M.R. Purushotham Vs. State of Karnataka reported in (2015) 3 SCC 247 and contended that benefit of doubt should be extended in favour of the appellant. Mr. Sanjay Kumar Das, learned Standing Counsel appearing for the Vigilance Department on the other hand contended that there is no infirmity or illegality in the impugned judgment of the learned trial Court and the prosecution has proved all the three aspects i.e. demand, acceptance and recovery of bribe money and the explanation of the appellant that the tainted money was thrust into his pant pocket is not acceptable particularly when the left hand wash of the appellant in sodium carbonate solution turned pink which shows that the appellant handled the money in his left hand and kept it in his left side pant pocket. The learned counsel for the Vigilance Department relied upon the decisions of the Hon’ble Supreme Court in the cases of Umesh Manan Vs. State of M.P. reported in (2017) 66 Orissa Criminal Reports (SC) 732, State of A.P. Vs. P. Satyanarayan Murty reported in (2008) 41 Orissa Criminal Reports (SC) 790, Vinod Kumar Vs. State of Punjab reported in (2015) 62 Orissa Criminal Reports (SC) 316, State of West Bengal Vs. Kailash Chandra Pandey reported in AIR 2005 SC 119 , T. Shankar Prasad Vs. State of A.P. reported in (2004) 27 Orissa Criminal Reports (SC) 599, Hazari Lal Vs. The State (Delhi Admn.) reported in AIR 1980 SC 873 and Mukhitar Singh Vs. State of Punjab reported in (2016) 64 Orissa Criminal Reports (SC) 1016 and contended that the appeal should be dismissed. 8. Law is well settled that mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. In order to constitute an offence under section 7 of 1988 Act, proof of demand is a sine qua non. 8. Law is well settled that mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. In order to constitute an offence under section 7 of 1988 Act, proof of demand is a sine qua non. The burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 Act by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in section 7 of the 1988 Act. For arriving at the conclusion as to whether all the ingredients of the offence i.e. demand, acceptance and recovery of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. The standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. The proof of demand of illegal gratification is the gravamen of the offence under sections 7 and 13(1)(d)(i) and (ii) of 1988 Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under sections 7 or 13 of the Act would not entail his conviction thereunder. The evidence of the complainant should be corroborated in material particulars and the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. Even if the trap witnesses turn hostile or are found not to be independent, if the evidence of the complainant and the other circumstantial evidence on record is found to be consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty for the Court in upholding the prosecution case. Even if the trap witnesses turn hostile or are found not to be independent, if the evidence of the complainant and the other circumstantial evidence on record is found to be consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty for the Court in upholding the prosecution case. The trial Court which has the occasion to see the demeanour of the witnesses is no doubt in a better position to appreciate it and the Appellate Court should not lightly brush aside the appreciation done by the Trial Court except for cogent reasons. (Ref:- B. Jayaraj Vs. State of Andhra Pradesh reported in (2014) 13 SCC 55 , Bhagirathi Pera Vs. State of Orissa reported in (2014) 58 Orissa Criminal Reports 566, M.R. Purushotham Vs. State of Karnataka reported in (2015) 3 SCC 247 , State of Punjab Vs. Madan Mohan Lal Verma reported in AIR 2013 SC 3368 , State of Maharashtra Vs. Dnyaneshwar reported in (2009) 44 Orissa Criminal Reports 425, Punjabrao Vs. State of Maharashtra reported in AIR 2002 SC 486 , V. Sejappa Vs. State reported in AIR 2016 SC 2045 , Panalal Damodar Rathi Vs. State of Maharashtra reported in AIR 1979 SC 1191 , Mukhitar Singh Vs. State of Punjab reported in (2016) 64 Orissa Criminal Reports (SC) 1016). In case of Krishan Chander Vs. State of Delhi reported in (2016) 3 SCC 108 , it is held that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under sections 7 and 13(1)(d) read with section 13(2) of the 1988 Act. In case of P. Satyanarayana Murthy Vs. District Inspector of Police reported in (2015) 10 SCC 152 , it is held that the proof of demand has been held to be an indispensable essentiality and of permeating mandate for an offence under sections 7 and 13 of the Act. Qua section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under section 7 and not to those under section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under section 20 of the Act would also not arise. 9. Demand of bribe on 24.11.2006:- In the first information report (Ext.1), it is mentioned by P.W.1 that on 24.11.2006 he had been to the office of District Welfare Officer, Boudh and asked the appellant about dispatch of the letter but the appellant told him that unless bribe amount of Rs.1,000/- is paid, the letter would not be sent to the higher authority and in spite of repeated request, the appellant did not listen to him rather told him to pay the bribe amount of Rs.1,000/- by 28.11.2006. In the chief examination, P.W.1 stated that he had requested the appellant to send clarification to the query made by the SC & ST Department, Government of Orissa and when on the last time he approached the appellant for the work, the appellant told P.W.6 to pay Rs.1,000/- to send the letter to the Government. In the cross-examination, P.W.1 has stated that he and P.W.6 were both looking after the pension matters and the appellant had not demanded any bribe directly to him but he asked P.W.6. P.W.1 further stated that he was not present when the appellant demanded money from P.W.6. He further stated that on 24.11.2006 the appellant had asked P.W.6 to pay Rs.1,000/- as bribe and had not asked him personally. He has further stated that as because P.W.6 informed him that the appellant was demanding bribe, he said so. Even though in the first information report, P.W.1 has stated that the appellant demanded bribe of Rs.1,000/- to him directly on 24.11.2006 in his office but in view of the answers elicited from P.W.1 in the cross-examination, it is apparent that he had no direct knowledge regarding the demand of bribe money and he had heard about the same from P.W.6. P.W.6 on the other hand has not whispered anything regarding any demand of bribe money by the appellant to him on any day. Therefore, it is doubtful as to whom the demand was made and when. P.W.1 rather has stated that as per instruction of D.S.P., he wrote about the demand of bribe as if it was made to him by the appellant. Therefore, it is doubtful as to whom the demand was made and when. P.W.1 rather has stated that as per instruction of D.S.P., he wrote about the demand of bribe as if it was made to him by the appellant. There is no substantive evidence relating to the demand of bribe money by the appellant on 24.11.2006. Even though in the first information report, such demand aspect has been reflected but law is well settled as held in case of Madhusudan Singh Vs. State of Bihar reported in AIR 1995 SC 1437 that the F.I.R. does not constitute substantive evidence, however it can be used as a previous statement for the purpose of corroboration/contradiction to the maker thereof. The allegation has to be proved at the trial. Conviction cannot be based only on the allegation in the F.I.R. In case of Utpal Das Vs. State of West Bengal reported in (2010) 46 Orissa Criminal Reports (SC) 600, it is held that the first information report does not constitute substantive evidence. It can, however, only be used as a previous statement for the purposes of either corroborating its maker or for contradicting him and in such a case, the previous statement cannot be used unless the attention of witness has first been drawn to those parts by which it is proposed to contradict the witness. Therefore, the evidence of P.W.1 that the appellant told P.W.6 to pay the bribe money to send the letter to the Government and that he heard about the demand from P.W.6 cannot be accepted. Demand of bribe on the date of trap:- The evidence of P.W.1 is completely silent regarding the demand of bribe money by the appellant on the date of trap. P.W.2 has stated that on the date of trap, the appellant was sitting on his seat and on query of P.W.1 about his work, the appellant told that the papers were not sent to the Government and that those would be sent after he paid the bribe of Rs.1,000/- to him. It has been confronted to P.W.2 by the defence in the cross-examination that he had not stated about the demand of Rs.1,000/- by the appellant before the Magistrate. On perusal of the 164 Cr.P.C. statement of P.W.2 which has been marked as Ext.12, it is clear that in fact he had not stated about such demand aspect. It has been confronted to P.W.2 by the defence in the cross-examination that he had not stated about the demand of Rs.1,000/- by the appellant before the Magistrate. On perusal of the 164 Cr.P.C. statement of P.W.2 which has been marked as Ext.12, it is clear that in fact he had not stated about such demand aspect. P.W.5 who was working in the District Welfare Office stated that on 28.11.2006 he was in the office room of the appellant and on that day two persons came to the office room and at that time he was closing the windows to go outside to take meal and those two persons then left the office room and the appellant also left the office room after getting a phone call and at the outside, he heard the appellant shouting. Therefore, P.W.5 who was present with the appellant at the relevant point of time inside the office room is silent about any demand of bribe being made by the appellant to P.W.1. Since P.W.2 has not stated about the demand by the appellant to P.W.1 on the date of trap before the Magistrate and the evidence of P.W.1 is silent on the demand aspect, therefore, the evidence of P.W.2 relating to demand of bribe money by the appellant to P.W.1 on the date of trap cannot be accepted. 10. Acceptance of bribe money by appellant:- P.W.1 stated that on the date of trap, he and P.W.2 proceeded towards the District Welfare Office and he found the appellant was present in his seat. The appellant showed the file to him and told that there are other documentary requirements and the file cannot be sent immediately and then the appellant called him to the Varandah where he put both the currency notes into the left side pant pocket of the appellant. In the cross-examination, P.W.1 has stated that he reached the block office around 1.20 p.m. and at that time the appellant was preparing to go for lunch and first the appellant showed the file and apprised him about the problem and told him to go away and was leaving for lunch and when the appellant was coming from the office and was on the Varandah, he put the currency notes into the left pant pocket of the appellant. P.W.1 was declared hostile by the prosecution for not supporting the prosecution case fully and was cross-examined. P.W.1 was declared hostile by the prosecution for not supporting the prosecution case fully and was cross-examined. It has been confronted to P.W.1 by the prosecution that he had stated before the Investigating Officer that after he handed over the amount, the appellant accepted it in his left hand and kept in his left pant pocket. It has also been confronted to P.W.1 by the prosecution that he had stated before the Magistrate that being asked by the appellant as to if he had brought the bribe amount as per previous talk, he answered ‘yes’ and thereafter called to office verandah and when he offered Rs.1,000/-, the appellant kept the same in his left side pant pocket. Even though in the previous statements before police and before Magistrate, P.W.1 has stated about the acceptance of bribe money by the appellant but such statements are not substantive evidence. In case of Hazari Lal Vs. State (Delhi Administration) reported in AIR 1980 SC 873 , it is held as follows:- “7. The learned Counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the CrPC imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by Section 145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the reexamination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exceptions to this embargo on the use of statements made in the course of an investigation, relates to the statements falling within the provisions of Section 32(1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. The only other exceptions to this embargo on the use of statements made in the course of an investigation, relates to the statements falling within the provisions of Section 32(1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation.” In case of Chaitu Naik Vs. State of Orissa reported in (2015) 60 Orissa Criminal Reports 906, it is held that a statement recorded under section 161 of Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of section 162 of Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Such a statement cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. In case of State of Delhi Vs. Shri Ram Lohia reported in AIR 1960 SC 490 , it is held as follows:- “13......Statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. In case of State of Delhi Vs. Shri Ram Lohia reported in AIR 1960 SC 490 , it is held as follows:- “13......Statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under Section 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case.” Therefore, since in his evidence P.W.1 has not stated about the acceptance of bribe money by the appellant rather stated that he put both the currency notes into the left side pant pocket of the appellant, merely because he has stated about the acceptance of money by the appellant in his statement made before the Investigating Officer or Magistrate, the same being not substantive evidence, cannot be accepted. P.W.2 has stated that after P.W.1 and the appellant came to the office verandah, P.W.1 gave the tainted two numbers of five hundred rupee notes i.e. Rs.1,000/- to the appellant who received both the notes by his left hand and kept the same in his left side pant pocket. During cross-examination, P.W.2 has admitted that he stated before the Magistrate that the appellant received the amount and kept the same in his right side pant pocket. Therefore, there is discrepancy in his statement as to in which side pant pocket of the appellant, the tainted money was kept. Though P.W.2 stated in his examination in chief that the Vigilance Inspector first took the hand washes of the appellant in solution which were kept in two separate bottles and then the appellant himself removed both the tainted notes from his pocket which were seized but he admitted to have stated before the Magistrate that the Vigilance Inspector recovered the money from the appellant and thereafter his hand wash was taken. Therefore, there is also discrepancy in his statement as to what was done first, whether it was the taking of hand washes or recovery of tainted money from the pant pocket of the appellant. Therefore, there is also discrepancy in his statement as to what was done first, whether it was the taking of hand washes or recovery of tainted money from the pant pocket of the appellant. If the appellant himself removed both the tainted notes from his left side pant pocket first and then his hand washes were taken, the change of colour of his left hand wash looses all its meaning as it was but natural. Learned counsel for the Vigilance Department placed reliance in the case of Vinod Kumar Vs. State of Punjab reported in (2015) 62 Orissa Criminal Reports (SC) 316, wherein it is held that the contention that P.W.5, the complainant had turned hostile, the whole case of the prosecution would collapse is not acceptable. Even though P.W.1 has been declared hostile, his evidence cannot be treated as washed off the record. In spite of contradiction as pointed out by the prosecution, the evidence of P.W.1 that the appellant had not demanded any bribe directly to him and that he put both the currency notes into the left side pant pocket of the appellant, is not thoroughly discredited and he can still be believed in regard to this part of his testimony. The learned counsel for the Vigilance Department placed reliance in the case of Umesh Manan Vs. State of M.P. reported in (2017) 66 Orissa Criminal Reports (SC) 732 wherein it is held as follows:- “13......The defence put forth by the Appellant, however, was that he never demanded any money from the complainant and the reality is that the money in question was forcibly put on the person of the Appellant in order to falsely implicate him. Notwithstanding the valiant attempt made by learned Counsel for the Appellant to project this defence, the record demonstrates that the Appellant has not succeeded in his endeavour.” The learned counsel for the Vigilance Department placed reliance on another decision of the Hon’ble Supreme Court in the case of State of A.P. Vs. P. Satyanarayan Murty reported in (2008) 41 Orissa Criminal Reports (SC) 790 where the accused took a plea that the money was forced on his hand wherein it is held as follows:- “5. Further, there was no suggestion given by the accused that money was forced on his hands and thereafter he put it on the table. P. Satyanarayan Murty reported in (2008) 41 Orissa Criminal Reports (SC) 790 where the accused took a plea that the money was forced on his hand wherein it is held as follows:- “5. Further, there was no suggestion given by the accused that money was forced on his hands and thereafter he put it on the table. No such suggestion was given and for the first time during examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) such a stand was taken. The High Court has also not considered the effect of the presumption flowing from Section 20 of the Act.” The cases placed by learned counsel for the Vigilance Department is clearly distinguishable. In the case in hand, it is not only the defence plea that the tainted money was thrust into the pant pocket of the appellant by P.W.1 but P.W.1 himself has stated that he put both the currency notes into the left side pant pocket of the appellant. Since the evidence of P.W.1 is silent about the acceptance of bribe money by the appellant on demand, the evidence of P.W.2 in that respect which is also very discrepant in nature is very difficult to be accepted. The conduct of the appellant immediately after the Vigilance Police caught hold of his hands is very relevant. P.W.3 has stated that the appellant on being questioned by the Vigilance Police explained that the decoy (P.W.1) by force thrust the amount in his pocket. P.W.7 has also stated that when they rushed to the spot on receiving signal, the D.S.P. asked the appellant to have received the bribe to which the appellant refused and said that it was forcibly thrust by the decoy (P.W.1) in his pocket. When an accused gives a spontaneous explanation right at the moment when the crime is committed and there was no opportunity to fabricate such explanation or concoct a story, the explanation becomes admissible as res gestae within the meaning of section 6 of the Evidence Act. P.W.7, the Inspector of Vigilance, Phulbani Unit has stated that the appellant was not left handed. Ordinarily a left handed person prefers to use his left hand rather than his right hand for routine activities and while accepting something from another person offered to him, he uses his left hand and prefers to keep it in his left side pant pocket. Ordinarily a left handed person prefers to use his left hand rather than his right hand for routine activities and while accepting something from another person offered to him, he uses his left hand and prefers to keep it in his left side pant pocket. A right handed person on the other hand prefers to use his right hand while accepting a thing from another and thereafter he keeps it in his right side pant pocket or takes the thing into his left hand and keeps it in his left side pant pocket. Therefore, when the appellant was a right handed person, the evidence of P.W.2 that the appellant accepted the tainted money in his left hand and kept it in his left side pocket is also another doubtful feature more particularly when P.W.1 has not corroborated such evidence. 11. Recovery of bribe money by appellant:- Even though recovery of the tainted money from his pant pocket is not disputed by the appellant but since the defence plea of the appellant that the tainted money was thrust in his pant pocket by P.W.1 gets corroboration from the evidence of P.W.1 himself, mere recovery of the tainted money from the possession of the appellant is not sufficient to fasten his guilt in the absence of any clinching evidence with regard to demand and acceptance of the amount as illegal gratification. In case of Sita Ram Vs. The State of Rajasthan reported in 1975 CrLJ 1224 , the evidence of the complainant was rejected and it was held that there was no evidence to establish that the accused had received any gratification from any person. On that finding the presumption under Section 4(1) of the Prevention of Corruption Act was not drawn. All that was taken as established was the recovery of certain money from the person of the accused and it was held that mere recovery of money was not enough to entitle the drawing of the presumption under Section 4(1) of the Prevention of Corruption Act. In Suraj Mal Vs. The State (Delhi Administration) reported in 1979 CrLJ 1087 , it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money. 12. In Suraj Mal Vs. The State (Delhi Administration) reported in 1979 CrLJ 1087 , it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money. 12. Learned counsel for the Vigilance Department placed reliance in the case of State of West Bengal Vs. Kailash Chandra Pandey reported in AIR 2005 SC 119 wherein it is held that the Appellate Court should be slow in re-appreciating the evidence as the trial Court has the occasion to see the demeanour of the witnesses and it is in a better position to appreciate the evidence and the Appellate Court should not lightly brush aside the appreciation done by the trial Court except for cogent reasons. I am of the humble view that it is the duty of the Appellate Court to see if there is any error in the appreciation of evidence by the trial Court. The sustainability of the judgment of the trial Court depends upon the soundness of the reasons given in support of the findings and the conclusion. An Appellate Court should not adopt the reasoning given by the trial Court without evaluating the evidence at all otherwise it would not be a legal judgment in the eye of law. As a first Court of appeal, the High Court must apply its independent mind and record its own findings on the basis of its own assessment of evidence. 13. In view of the foregoing discussions of the evidence, it is apparent that the prosecution case suffers from serious infirmities. The reasoning assigned by the learned trial Court is faulty and genuine material evidence available on record in favour of the appellant has been overlooked and it appears that the impugned judgment is one sided in favour of the prosecution. I am fully satisfied that sufficient, cogent and reliable evidence is not available on record which established the guilt of the appellant. I am fully satisfied that sufficient, cogent and reliable evidence is not available on record which established the guilt of the appellant. In the absence of any clinching evidence relating to the demand and acceptance of the bribe money by the appellant and the fact that the defence plea of the appellant that the money was thrust into his pant pocket is corroborated by the decoy, I am of the view that though there is some suspicion against the appellant but suspicion howsoever strong cannot take the place of proof. In the circumstances, since the guilt of the appellant has not been established beyond all reasonable doubt, I am constrained to give benefit of doubt to the appellant. In the result, the criminal appeal is allowed. The impugned judgment and order of conviction of the appellant under section 7 and section 13(2) read with section 13(1)(d) of the 1988 Act and the sentence passed thereunder is set aside and the appellant is acquitted of all the charges. The appellant is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled.