Neeraj Dutta vs State (Govt. of N.C.T. of Delhi)

Reference Matter – Prevention of Corruption Act 1988 – Whether B. Jayaraj v State of A.P & P. Satyanarayana Murthy v D. Insp. Of Police, State of A.P. in conflict with M. Narsinga Rao v State of A.P – Reference Answered – There is no conflict in B. Jayaraj and P. Satyanarayana Murthy with the decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences u/ss.7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason – Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant u/ss.7 and 13 (1)(d) (i) and (ii) of the Act – Prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact and the same can be proved by direct evidence – The proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence, if such circumstantial evidences corroborates the foundational fact of demand and acceptance of illegal gratification. Prevention of Corruption Act 1988: s.20 – Scope of Presumption used therein – s.20 envisages the law regarding the presumption where public servant accepts gratification other than legal remuneration – The expression used therein is “shall presume” which is legal or compulsory presumption – The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the Section is satisfied – It does not say that the said condition should be satisfied through direct evidence but the only requirement is that it must be proved that the accused has accepted or agreed to accept gratification.

Evidence Act, 1872: s.3 – Word “Fact” – “Factum Probandum & Factum Probans” – Classification and Connection – Fact consists of state of things, events or mental state – The principal fact (factin-issue) constitutes Factum Probandum whereas the evidentiary fact (relevant fact) constitute Factum Probans – Facts relevant to the issue are evidentiary fact which render probable the existence or non-existence of fact-in-issue or some other relevant fact. Evidence Act, 1872: s.3 – Word “Evidence” – Scope – Evidence may include the actual words of witnesses, or documents produced – The term evidence is not restricted to only oral and documentary evidence but also to other things like material objects, the demeanour of the witnesses, facts of which judicial notice could be taken, admissions of parties, local inspection made and answers given by the accused to questions put forth by the Magistrate or Judge u/s.313 of the Criminal Procedure Code.

Evidence Act, 1872 – ss. 3, 59, 60, 61 – Classification of Evidence – Evidence may be classified as direct evidence (original evidence) and indirect evidence (substantial evidence) – Direct Evidence establishes the existence of a thing or fact either by actual production or by testimony or demonstrable declaration of someone who has himself perceived it and the same is devoid of any room for inference or presumption – Indirect Evidence gives rise to the logical inference that a fact-in-issue exists, either conclusively or presumptively – Direct Evidence may constitute either oral or documentary evidence – Indirect evidence may constitute evidence which is circumstantial in nature.

Evidence Act, 1872: s.60 – Oral Evidence – Classification and Scope – Oral Evidence can be either original or hearsay in nature – It is original if it is given by the person who himself have seen or heard something through his own senses – Hearsay Evidence could be called as derivative, transmitted or second-hand evidence in which a witness is merely reporting what he had not himself seen or heard but have learnt from some third person – Oral Evidence is also sub-categorized as Primary and Secondary evidence – Former is an oral account of the original evidence while latter is a report or an oral account of the original evidence or a copy of a document or a model of the original thing – As per the mandate of s.60, the oral evidence must be direct or positive.

Evidence Act, 1872: Word “Hearsay evidence” – Scope – The expression “hearsay evidence” is not defined under the Evidence Act – Hearsay evidence is inadmissible to prove a fact which is deposed to on hearsay, but it does not necessarily preclude evidence as to a statement having been made upon which certain action was taken or certain results followed such as evidence of an informant of the crime.

Evidence Act, 1872: ss. 59, 61, 62, 63, 64, 65, 66, 67(2), 78 – Documentary Evidence – Classification and scope – As per the mandate of s.59 contents of document cannot be proved by oral evidence – Documentary evidences are to be proved by production of documents themselves or, in their absence, by secondary evidence u/s.65 of the Act – s.61 permits proof of contents of document by primary or by secondary evidence – As per s.62, primary evidence mean when the document itself is produced for inspection of the court – For an evidence to be a secondary evidence for proving the contents of the document, it must be of the kind as specified u/s.63 – As per the mandate of s.64 document must be proved by adducing primary evidence, except in the cases mentioned u/s.65 – The policy of law is that primary evidence is the best evidence and it affords the greatest certainty of the fact in question and it is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.

Evidence Act, 1872: ss. 4, 114 – Law regarding presumptions – Word “May Presume, Shall Presume, Conclusive Proof” – Factual Presumption or discretionary presumption come under “May Presume” and in this case facts may be proved either by adducing evidence or the court may presume the existence of a fact – Legal Presumption or Compulsory Presumption come under “shall presume” and once it is declared by the law that the court shall presume the existence of a fact, then the court is under obligation to presume such fact unless such presumption is displaced by adducing evidence contrary to such presumption – Conclusive proof is a strict declaration of law and once a fact is declared to be a conclusive proof of the other, then the court shall not allow the evidence to be adduced to misplace such presumption – The presumption as contemplated by s.114 is a discretionary presumption.

Evidence Act, 1872: Chapter 7 – Burden of Proof - The phrase “burden of proof” has two meanings one, the burden of proof as a matter of law and pleading and the other, the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. Evidence Act, 1872: Hostile Witness – Admissibility of Evidence – Settled Legal Position – Even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon.

Answering the Reference petition, the Court

HELD: 1. Congruent to the principle of res gestae, a fact includes a state of things or events as well as the mental state i.e. intention or animus. A fact in law of evidence includes the factum probandum i.e., the principal fact to be proved and the factum probans, i.e., the evidentiary fact from which the principal fact follows immediately or by inference. On the other hand, the expression “fact in issue” means the matters which are in dispute or which form the subject of investigation. It is well settled that evidence is upon facts pleaded in a case and hence, the principal facts are sometimes the facts in issue. Facts relevant to the issue are evidentiary facts which render probable the existence or nonexistence of a fact in issue or some relevant fact. [Para 30, 31][144-C-E]

2. In criminal cases, the facts in issue are constituted in the charge, or acquisition, in cases of warrant or summon cases. The proof of facts in issue could be oral and documentary evidence. Evidence is the medium through which the court is convinced of the truth or otherwise of the matter under enquiry, i.e., the actual words of witnesses, or documents produced and not the facts which have to be proved by oral and documentary evidence. Of course, the term evidence is not restricted to only oral and documentary evidence but also to other things like material objects, the demeanour of the witnesses, facts of which judicial notice could be taken, admissions of parties, local inspection made and answers given by the accused to questions put forth by the Magistrate or Judge under Section 313 of the Criminal Procedure Code (CrPC). [Para 32][144-E-G]

3. “Direct” or “original” evidence means that evidence which establishes the existence of a thing or fact either by actual production or by testimony or demonstrable declaration of someone who has himself perceived it, and believed that it established a fact in issue. Direct evidence proves the existence of a fact in issue without any inference of presumption. On the other hand, “indirect evidence” or “substantial evidence” gives rise to the logical inference that such a fact exists, either conclusively or presumptively. The effect of substantial evidence under consideration must be such as not to admit more than one solution and must be inconsistent with any explanation that the fact is not proved. By direct or presumptive evidence (circumstantial evidence), one may say that other facts are proved from which, existence of a given fact may be logically inferred. [Para 33][144-G-H; 145-A-B]

4. Oral evidence can be classified as original and hearsay evidence. Original evidence is that which a witness reports himself to have seen or heard through the medium of his own senses. Hearsay evidence is also called derivative, transmitted, or second-hand evidence in which a witness is merely reporting not what he himself saw or heard, and not what has come under the immediate observation of his own bodily senses, but what he has learnt in respect of the fact through the medium of a third person. Normally, a hearsay witness would be inadmissible, but when it is corroborated by substantive evidence of other witnesses, it would be admissible. [Para 34][145-C-D]

5. Evidence that does not establish the fact in issue directly but throws light on the circumstances in which the fact in issue did not occur is circumstantial evidence (also called inferential or presumptive evidence). Circumstantial evidence means facts from which another fact is inferred. Although circumstantial evidence does not go to prove directly the fact in issue, it is equally direct. Circumstantial evidence has also to be proved by direct evidence of the circumstances. [Para 35][145-E-F]

6. Section 59 of the Evidence Act states that all facts, except the contents of documents or electronic records, may be proved by oral evidence. Oral evidence means the testimony of living persons examined in the presence of the court or commissioners appointed by the court, deaf and dumb persons may also adduce evidence by signs or through interpretation or by writing, if they are literate. Documentary evidences, on the other hand, are to be proved by the production of the documents themselves or, in their absence, by secondary evidence under Section 65 of the Act. Further, facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, or ill will need not be proved by direct testimony. It may be proved inferentially from conduct, surrounding circumstances, etc. [Para 36, 37][145-G-H; 146-A-B]

7. Section 60 of the Evidence Act requires that oral evidence must be direct or positive. Direct evidence is when it goes straight to establish the main fact in issue. The word “direct” is used in juxtaposition to derivative or hearsay evidence where a witness gives evidence that he received information from some other person. If that person does not, himself, state such information, such evidence would be inadmissible being hearsay evidence. On the other hand, forensic procedure as circumstantial or inferential evidence or presumptive evidence (Section 3) is indirect evidence. It means proof of other facts from which the existence of the fact in issue may be logically inferred. In this context, the expression “circumstantial evidence” is used in a loose sense as, sometimes, circumstantial evidence may also be direct. Although the expression “hearsay evidence” is not defined under the Evidence Act, it is, nevertheless, in constant use in the courts. However, hearsay evidence is inadmissible to prove a fact which is deposed to on hearsay, but it does not necessarily preclude evidence as to a statement having been made upon which certain action was taken or certain results followed such as evidence of an informant of the crime. At this stage, it must be distinguished that even with regard to oral evidence, there are sub-categories – primary evidence and secondary evidence. Primary evidence is an oral account of the original evidence i.e., of a person who saw what happened and gives an account of it recorded by the court, or the original document itself, or the original thing when produced in court. Secondary evidence is a report or an oral account of the original evidence or a copy of a document or a model of the original thing. [Para 39, 40, 41][146D-H]

8. Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence. When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act. Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, the contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence. So long as an original document is in existence and is available, its contents must be proved by primary evidence. It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed. Primary evidence is the best evidence and it affords the greatest certainty of the fact in question. Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence. What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents. Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original. [Para 42][147-A-E]

9. Section 62 of the Evidence Act defines primary evidence to mean the documents itself produced for the inspection of the court. If primary evidence is available, it would exclude secondary evidence. Section 63 of the Evidence Act deals with secondary evidence and defines what it means and includes. Section 63 mentions five kinds of secondary evidence, namely, - (i) Certified copies given under the provisions hereinafter contained; (ii) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (iii) Copies made from or compared with the original; (iv) Counterparts of documents as against the parties who did not execute them; (v) Oral accounts of the contents of a document given by some person who has himself seen it. [Para 43][147-E-H; 148-A]

10. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence. Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence. There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal. [Para 44][148B-D]

11. Courts are authorised to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely, (i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and (iii) mixed presumptions i.e., “presumptions of mixed law and fact” or “presumptions of fact recognised by law”. The expression “may presume” and “shall presume” in Section 4 of the Evidence Act are also categories of presumptions. Factual presumptions or discretionary presumptions come under the division of “may presume” while legal presumptions or compulsory presumptions come under the division of “shall presume”. “May presume” leaves it to the discretion of the court to make the presumption according to the circumstances of the case but “shall presume” leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression “shall presume” is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act. [Para 46][148-F-H; 149-A-B]

12. Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression “shall be presumed” in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the Section is satisfied. The only condition for drawing a legal presumption under Section 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. [Para 48][149-E-G]

13. A presumption under Section 114 of the Evidence Act is discretionary in nature inasmuch as it is open to the court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact. This is unlike a presumption under Section 4(1) of the 1947 Act or Section 20 of the Act where the court has to draw such presumption, if a certain fact is proved, that is, where any illegal gratification has been received by an accused. In such a case the presumption that has to be drawn that the person received that thing as a motive of reward. Therefore, the court has no choice in the matter, once it is established that the accused has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to the accused to show that though that money was not due to him as a legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which is lawful. The burden resting on the accused in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words “unless the contrary is proved” which occur in this provision make it clear that the presumption has to be rebutted by “proof” and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material brought before it, the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. [Para 50][150-C-H]

14. As opposed to the expressions “may presume” and “shall presume”, the expression “conclusive proof” is also used in Section 4 of the Evidence Act. When the law says that a particular kind of evidence would be conclusive, that fact can be proved either by that evidence or by some other evidence that the court permits or requires. When evidence which is made conclusive is adduced, the court has no option but to hold that the fact exists. For instance, the statement in an order of the court is conclusive of what happened before the presiding officer of the court. Thus, conclusive proof gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to combat that effect. When a statute makes certain facts final and conclusive, evidence to disprove such facts is not to be allowed. [Para 52][151-B-D]

15. All evidence let in before the court of law are classified either as direct or circumstantial evidence. “Direct evidence” means when the principal fact is attested directly by witnesses, things or documents. For all other forms, the term “circumstantial evidence” which is “indirect evidence” is referred, whether by witnesses, things or documents, which can be received as evidence. This is also of two kinds namely, conclusive and presumptive. Conclusive is when the connection between the principal and evidentiary facts – the factum probandum and factum probans - is a necessary consequence of the laws of nature; “presumptive” is when the inference of the principal fact from the evidence is only probable, whatever be the degree of persuasion which it may generate. Thus, circumstantial evidence is evidence of circumstances as opposed to what is called direct evidence. The prosecution must take place and prove all necessary circumstances constituting a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence. [Para 53][151-E-G]

16. Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act. In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. [Para 68][158-E-F]

17. There is no conflict in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. [Para 69][160-E-F]

Subash Parbat Sonvane v. State of Gujarat (2002) 5 SCC 86 : [2002] 3 SCR 359; Ram Krishan v. State of Delhi AIR 1956 SC 476 : [1956] SCR 182; C.K.

Damodaran Nair v. Government of India (1997) 9 SCC

477 : [1997] 1 SCR 107; B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 (“B. Jayaraj”) : [2014] 4 SCR 554; P. Satyanarayana Murthy v. D. Inspector of Police, State of A.P. (2015) 10 SCC 152; M. Narsinga Rao v. State of A.P. (2001) 1 SCC 691 : [2000] 5 Suppl. SCR 584; A. Subair v. State of Kerala (2009) 6 SCC

587 : [2009] 9 SCR 1058; State of Kerala v. C.P. Rao (2011) 6 SCC 450 : [2011] 6 SCR 864; Suresh

Budharmal Kalani v. State of Maharashtra (1998) 7 SCC 337 : [1998] 1 Suppl. SCR 608; Hazari Lal v. State (Delhi Admn.) (1980) 2 SCC 390 : [1980] 2 SCR 1053; Kishan Chand Mangal v. State of Rajasthan (1982) 3 SCC 466 : [1983] 1 SCR 569; K. Shanthamma v. State of Karnataka (2022) 4 SCC 574; State of U.P. v. Ram Asrey (1990) Suppl. SCC 12; Mukhtiar Singh v. State of Punjab (2017) 8 SCC 136 : [2017] 8 SCR 109; M. R. Purushotam v. State of Karnataka (2015) 3 SCC 247; C. M. Sharma v. State of Andhra Pradesh (2010)

15 SCC 1 : [2010] 13 SCR 1105; State of Maharashtra v. Dhyaneshwar Laxman Rao Wankhede (2009) 15 SCC

200 : [2009] 11 SCR 513; Sukumaran v. State of Kerala (2015) 11 SCC 314; Sunkanna v. State of Andhra Pradesh (2016) 1 SCC 713 : [2015] 12 SCR 882; State of Madhya Pradesh v. Ram Singh (2000) 5 SCC 88 : [2000] 1 SCR 579; State of Rajasthan v. Babu Meena (2013) 4 SCC 206; Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del); Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 : [2008] 17 SCR 572; Krishna Janardhan Bhat v. Dattatraya G Hegde (2008)

4 SCC 54 : [2008] 1 SCR 605; State of Madras v. A. Vaidyanatha Iyer AIR 1958 SC 61 : [1958] SCR 580; Dhanvantrai Balwantrai Desai v. State of Maharashtra AIR 1964 SC 575 : [1963] Suppl. SCR 485;

Navaneethakrishnan v. State by Inspector of Police AIR 2018 SC 2027 : [2018] 6 SCR 749; Sharad

Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88; Prakash v. State of Rajasthan (2013) 4 SCC 668 : [2013] 2 SCR 458; Kundan Lal Rallaram v. The Custodian, Evacuee Property Bombay AIR 1961 SC 1316; Madhukar

Bhaskarrao Joshi v. State of Maharashtra (2000) 8 SCC

571 : [2000] 4 Suppl. SCR 475; State v. Dr. Anup Kumar Srivastava (2017) 15 SCC 560 : [2017] 9 SCR 341; State of Andhra Pradesh v. V. Vasudeva Rao (2004) 9 SCC 319 : [2003] 5 Suppl. SCR 500; State of Andhra Pradesh v. P. Venkateshwarlu (2015) 7 SCC 283 : [2015] 6 SCR 262; Selvaraj v. State of Karnataka (2015) 10 SCC 230 : [2015] 9 SCR 381; Nayan Kumar Shivappa Waghmare v. State of Maharashtra (2015) 11 SCC 213 : [2015] 2 SCR 171; Prakash Chand v. State (Delhi Admn.) (1979) 3 SCC 90 : [1979] 2 SCR 330; Sat Paul v. Delhi Administration (1976) 1 SCC 727 : [1976] 2 SCR 11; Swatantar Singh v. State of Haryana (1997) 4 SCC 14 : [1997] 2 SCR 639; A.B. Bhaskara Rao v. CBI (2011) 10 SCC 259 : [2011] 12 SCR 718; State of M.P. v. Shambhu Dayal (2006) 8 SCC 693 : [2006] 8 Suppl. SCR 319 – referred to.