HATI DEVDAN SARMAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) As to when the burden of proof cast upon the accused by sec. 4(1) of the Prevention of Corruption Act can be said to be discharged there are various decisions of the Supreme Court. The latest judgment of the Supreme Court on this point is in V. D. Jhingan v. State of U. P. A.I.R. 1966 S. C. 1762. In the light of the decisions of the Supreme Court in C.I. Emden v. State of. Uttar Pradesh A.I.R. 1960 S.C. 548 and Dhanvantrai Balwantrai v. State of Maharashtra A.I.R. 1964 S.C. 575 the Supreme Court held that to raise the presumption under sec. 4(1) of the Act the prosecution has to prove that the accused has received gratification other than legal remuneration. When it is shown that the accused has received a certain sum of money which was not his legal remuneration the condition prescribed by the section is satisfied and the presumption must be raised. Further the mere receipt of money is sufficient to raise the presumption. It was further held by the Supreme Court in that case that the burden of proof lying upon the accused under sec. 4(1) of the Prevention of Corruption Act will be satisfied if he establishes his case by a preponderance of probability as is done by a party in civil proceedings It is not necessary that he should establish his case by the test of proof beyond a reasonable doubt.

(2.) In . it was held by the Supreme Court that the whole object of laying the trap in bribery cases is to secure an independent witness with respect to the transaction of the demand and the giving of the bribe. It may be that it may not be necessary for the prosecution to lead corroborative evidence in cases where a presumption under sec. 4(1) of the Act arises against the accused but in case the accused leads evidence to rebut the presumption the importance of corroborative evidence cannot be gainsaid. The Court has to weigh the probabilities of the case and to see whether the preponderance of the probabilities lies with the defence version or with the prosecution version irrespective of the presumption which is sought to be rebutted by the accused person. Where there is no evidence in corroboration of the statement of the complainant it is difficult to say that his story is a probable story. It is to be noted that in this latest judgment of the Supreme Court the Supreme Court emphasized that when the accused leads evidence in order to rebut the presumption the importance of corroborative evidence cannot be gainsaid. I may point out that in State of Gujarat v. Madhavbhai IV G.L.R. 886 a Division Bench of this High Court to which I was a party laid down certain tests in cases of presumption arising under sec 4(1) of the Act. At the time of deciding that case the Division Bench had before it the decisions in C. I. Emdens case and Dhanvantrais case (supra) and in the light of the principles deducible from those two cases certain principles were laid down as emerging from those two cases. We may point out that it is only the 4th and 5th principles laid down in that case which are required to be considered in the light of the two subsequent decisions of the Supreme Court viz. the decisions in V. D. Jhingans case and Mahadu Rupilas case. The 5 principle which I had mentioned while delivering the judgment of the Division Bench was that the Court must bear in mind the definition of the word proved occurring in sec. 3 of the Evidence Act; and the 4th principle laid down in that case was that the burden can only be said to have been discharged by the accused when besides offering an explanation which may be reasonable and probable the accused shows that the explanation is a true one and for that purpose it must be borne in mind that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. In our opinion the 5th principle regarding the definition of the word proved has to be read in the light of the subsequent decisions of the Supreme Court and once the accused leads evidence in order to rebut the presumption as the Supreme Court points out the test of corroboration to the testimony of the complainant becomes one of the most important factors in the case.

(3.) We may also point out that in Dahyabhai v. The State v. G.L.R. 911 the Supreme Court has considered the question as to when the burden of proof of proving special circumstances to bring the case within one of the exceptions can be said to have been discharged by the accused person under sec. 105 of the Indian Evidence Act and at page 915 of the report Subba Rao J. (as he then was) has observed as follows:- To put it in other words the accused will have to rebut the presumption that such circumstances did not exist by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man would act upon them. The accused has to satisfy the standard of a prudent man. If the material placed before the Court such as oral and documentary evidence presumptions admissions or even the prosecution evidence satisfies the test of prudent man the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under sec. 105 of the Evidence Act but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. [The rest of the judgment is not material for the report.] Conviction set aside.