JUDGMENT
S.K. Gupta, J.
1. This appeal is directed against the order of conviction propounded by Special Judge, Anti-Corruption, on 26-11-1992, whereby he has sentenced Sagra Singh, Tara Chand and Rishi Kumar to undergo two years’ rigorous imprisonment and a fine of Rs. 1,000/- each, in proof of offence under Section 5(2) of the Prevention of Corruption Act, 2006 (BK) and in default of making payment of fine, to further suffer six months’ imprisonment each.
2. The facts relevant for the disposal of this appeal, gatherable from the record, may, in resume, be noticed. All the four accused, namely, Sagra Singh, Tara Chand, Rishi Kumar and Mani Ram, posted in Nowabad Police Station, Jammu, were detailed on patrol duty in the night intervening 5/6 November, 1985, in the area. During the course of patrolling, when they reached near Vinayak Chowk near “U-Like Dhaba”, they found Subash Chander and Gul Mohd. in altercation with the owner of the Dhaba, who had demanded Rs. 30/- for meals they had taken at his Dhaba. Both Subash Chander and Gul Mohd. were arrested by the Patrol Party and conducted their personal search. The accused seized Rs. 13,850/- from personal search of Gul Mohd. and Rs. 10,479.40 from Subash Chander. In the seizure memos, prepared by the accused, they reflected amount of Rs. 2,850/- and Rs. 9,300/-respectively and thereby misappropriated Rs. 12,179.40. Subash Chander and Gul Mohd. were under the spell of liquor at the time they were quarrelling with the owner of the “U-Like Dhaba” over the excess billing for the meals they had taken in his hotel. Both Subash Chander and Gul Mohd. were taken to the hospital and got medically examined. On a protest, made in this behalf by Subash Chander and Gul Mohd., that the amount seized from their personal search has not been correctly reflected in their respective seizure memos, a preliminary enquiry was conducted by SHO Amarjeet Singh Bedi and the balance amount along with two wrist watches was recovered from the possession of the accused and thereafter handed over to Subash Chander and Gul Mohd. on superdnama. On a complaint made to this effect, led to the registration of a case by Vigilance Organisation against all the four accused and investigation proceeded. On the conclusion of investigation and after obtaining requisite sanction for launching prosecution against the accused, challan came to be presented in the Court of Anti-Corruption. The accused were charge sheeted by the Trial Court on 13-12-1988 under Section 5(2) of the Prevention of Corruption Act. The accused pleaded not guilty to the charge when read over and explained to them. The Trial Court, after recording evidence produced by the prosecution in sustenance of the charge and after hearing the learned Counsel for the parties, held the accused, Sagra Singh, Tara Chand and Rishi Kumar, guilty for offence under Section 5(2) of the Prevention of Corruption Act, 2006 (BK), and convicted and sentenced them under Section 5(2), P.C. Act, vide its judgment impugned in the appeal.
3. It is pertinent to point out that accused, Mani Ram, died during the currency of the trial and challan against him stood abated.
4. I have heard Mr. K.S. Johal, learned Counsel appearing for the appellants, as well as Mr. B.S. Salathia, learned Sr. AAG, in extenso. The rival contentions of the parties have also been considered in context with the evidence assembled on record.
5. Mr. K.S. Johal, learned Counsel appearing for the appellant, at the threshold, submitted that there is not an iota of evidence against the accused for the commission of crime. The witnesses examined by the prosecution have neither supported the seizure memos with regard to the amount seized from the personal search of Subash Chander and Gul Mohd., reflecting less amount than what was actually seized by the accused nor the recovery memos pertaining to the amount alleged to have been recovered attributing to the balance amount and stated to have been misappropriated by the accused, recovered from them by SHO, Amarjeet Singh Bedi, during enquiry conducted by him, on the basis of a protest lodged by Subash Chander and Gul Mohd. in this behalf. It is further contended that the Trial Court has not appreciated the evidence in its proper perspective and, virtually, it is a case of no evidence and the conviction and sentence, recorded against the accused, deserves to be set aside for want of legal evidence against the accused. It was further submitted by Mr. Johal that the evidence provided by Subash Chander and Gul Mohd., without independent corroboration, is neither sufficient nor satisfactory to prove the guilt of the accused beyond any pale of doubt. Both these witnesses, when taken in custody under Section 36 of the Police Act, after having consumed liquor and having become violent in public place, vis–vis, quarrelling with the owner of the Dhaba over excess billing in respect of the meals they had taken in the hotel, can neither be relied upon being without any independent corroboration nor form the basis for the conviction of the accused.
6. Adverting to the evidence on record, PW Gul Mohd. stated that at about 9.00 p.m. on the alleged evening of occurrence, they came out of the hotel where they were staying to take their dinner in Vinayak Bazar. After taking the meals in the Dhaba, when its owner demanded Rs. 30/- for the meals, the witness protested for over-billing and the owner lastly reduced the bill amount from Rs. 30/- to Rs. 22/-. In the meanwhile, Police Patrol Party arrived there and on a complaint made by the Dhaba owner about him and Subash Chander for picking up quarrel, the Police arrested them and conducted personal search and took Rs. 13,850/-. Further, the witness stated to have protested to the ASI, who came on spot soon after, that the entire amount seized from his personal search has not been reflected in the seizure memo, but without any response. Thereafter, he along with Subash Chander was taken to the hospital for medical examination and then to Police Station and they were kept in lock-up. It was next morning, when SHO of the Police Station arrived there, a protest was lodged before him with regard to the entire amount of personal search not reflected in the seizure memo by the accused. His further evidence is that the money was recovered by the Police and, later on, handed over to him and Subash Chander on their superdnama, EXPW-GM/1 and EXPW-SC/1. They remained in the Police custody for one night and thereafter were let off and allowed to go. He also stated that SP and SHO had recovered the money on 6th and 7th November. At the time of their arrest, personal search was conducted by ASI Sagra Singh. He further stated that the case in which they were medically examined was not produced in the Court. He was got medically examined by the doctor in the hospital. The money was seized from them by Sagra Singh, accused, whereas the statement of Subash Chander is to the effect that he was having Rs. 10,479/- at the time he was subjected to personal search by the Patrolling Party on a complaint by the Dhaba owner, where they had taken food and altercation over the excess billing ensued. The accused had taken the entire amount from him during personal search, but reflected less amount in the seizure memo. A protest was lodged in this respect on the next day in the morning, when the SHO came to the Police Station, that though Rs. 10,479/-were seized and the seizure memo was prepared for an amount of Rs. 9,300/-. This led to an enquiry conducted by the SHO and the amount was returned to him vide EXPW-SC/1 on superdnama. This witness admitted to have consumed liquor when he had gone to take meals in the Dhaba. He further stated that the SP had come to the Police Station on the next date of the occurrence. He further stated that the amount was not recovered by the SHO in his presence.
7. The seizure memos EXPW-AS/2 and EXPW-AS/3, vide which amounts of Rs. 2,850/- and Rs. 9,300/- are mentioned to have been seized from the possession of Gul Mohd. and Subash Chander, were prepared by Sagra Singh, accused, and its attesting witnesses are Shakti Kumar, Tara Chand and Ravinder Kumar. PW Tara Chand stated that both Subash Chander and Gul Mohd., PWs, had consumed liquor and started taking up cudgel over the payment of bill for the food they had taken in the Dhaba. In the meanwhile, a Police Party came and the money was arranged from these two persons. When the witness denied in his examination-in-chief that no seizure memo was prepared in his presence, he was declared hostile. However, in cross-examination, he admitted that Sagra Singh had prepared the, seizure memos, one of Rs. 9,300/- and the other of Rs. 2,850/- and which were signed by him. Similarly, PW Ravinder Kumar admitted his signatures on the seizure memo EXPW-AS/2, but could not say about the correctness of its contents. PW Shakti Kumar is another witness of the seizure memos having his hotel opposite to the Dhaba and stated that some papers were written and he identified his signatures on EXPW-AS/2. He, however, denied the personal search of Subash Chander and Gul Mohd. conducted by accused Sagra Singh in his presence and seizure of Rs. 2,850/- and a wrist watch from his possession. When confronted with the statement under Section 161 Cr.P.C., he denied to have made any statement to the Police.
8. This makes it abundantly clear that the seizure memos alleged to have been prepared by Sagra Singh accused, at the time of personal search of Subash Chander and Gul Mohd., have not been supported by its attesting witnesses. None of the attesting witnesses has stated that amount of Rs. 10,479/- and Rs. 13,850/- was, in fact, seized from the personal search of Subash Chander and Gul Mohd., so as to prove that less amount was reflected in the seizure memos and balance misappropriated by the accused. As regards the recovery of the amount, stated to have been seized from the possession of the accused made during enquiry by the SHO, Amarjeet Singh Bedi, and later on handed over to Subash Chander and Gul Mohd. on superdnama, EXPW-PD and EXPW-PD/1 bear the signatures of Amarjeet Singh Bedi, SHO, Police Station, Nowabad. Both the recovery memos, according to the prosecution, were prepared by Amarjeet Singh Bedi, SHO, Police Station, Nowabad. PW Amarjeet Singh Bedi, SHO, deposed that the accused arrested Subash Chander and Gul Mohd. for creating nuisance after consuming liquor near “U-Like Dhaba” in Vinayak Bazar, during the course of patrolling. When the witness came to the Police Station on the next day, the Duty Officer informed the matter about the accused, who were detailed on patrolling and have recovered more money from the personal search, but shown less in the seizure, has been brought to the notice of SP, City, and the latter directed him to hold an enquiry. During enquiry, he also sought information from ASI Ghulam Qadir, Incharge of the Police Party at the relevant time. The Incharge ASI told that he had gone to take meals to the nearby Dhaba when the amount was seized. When the result of the enquiry was conveyed to the SP, City, the accused, in the meanwhile, told him that they have committed the mistake and after consultation with each other, the money would be returned. The money was returned by the accused vide EXPW-PD/1 and EXPW-AS respectively. The money was returned in piece-meal by the accused and the amount of Rs. 1,479.40 seized vide EXPW-PD is correct. The seized amount was returned to Subash Chander and Gul Mohd. on superdnama. He also identified the signatures of Sagra Singh on the seizure memos, EXPW-AS/2 and EXPW-AS/3 respectively. On cross-examination, the witness stated that the accused returned the money within one hour of the telephone received from the SP. He prepared the seizure memo in respect of the money produced by the accused. PW D.P. Sharma deposed that he was the SP, City, in November, 1985 and Amarjeet Singh, SHO, when the latter had brought to his notice that in the night intervening 5/6 November, 1985, a patrol party had arrested two persons, having consumed liquor, and conducted their personal search. He also brought to his notice that the amount recovered from the personal search was not correctly reflected in the seizure memos and some substantial amount was kept by the patrol party with it. He ordered the preliminary inquiry. The witness further stated to have been told by the SHO, Amarjeet Singh Bedi, that, ASI, Ghulam Qadir, was the Incharge of the Patrol party. He, however, did not see the seizure memos prepared after personal search of the drunken persons. PW Padam Dev Singh, who was posted as SI in Police Station, Nowabad, in 1985, is the attesting witness of the seizure memos, EXPW-PD and EXPW-PD/1, regarding Rs. 1,479.40 and Rs. 8,400/- respectively. In cross-examination, the witness categorically stated that he does not know, who else has signed the seizure memos. The other attesting witness of the seizure memos, EXPW-PD and EXPW-PD/1, vide which the amount is stated to have been recovered from the accused is Nisar Ahmed Wani. According to this witness, two seizure memos, EXPW-AS and EXPW-PD, were written by him. He also stated that these memos were prepared at the instance of Amarjeet Singh Bedi, SHO. In cross-examination, he stated that the money, in respect of which the memos were prepared, was handed over to him by SHO. The accused were not present at that time. According to this witness, the memos were prepared in the Police Station. The superdnama vide which the amount is stated to have been recovered from the accused and handed over to the Gul Mohd., was prepared by him. Ashok Kumar and Mohinder Kumar are attesting witnesses of the superdnama prepared by SHO, Amarjeet Singh Bedi. Ashok Kumar has not been produced, whereas PW Mohinder Kumar stated that he had gone to the Police Station and found two persons sitting there. According to him, two documents, EXPW-SC/1 and EXPW-GMY1, were scribed in his presence, on which he had put his signatures on the request of the SHO. The contents of the documents were not read over to him by the SHO nor any money or wrist watch was produced in his presence. PW Kalu Ram was Moharer HC, posted at Police Station, Nowabad, in the year 1985. In his cross-examination, he categorically stated that the seizure memos of the personal search shown to him in the Court were not seen by him earlier. He further stated that Subash Chancier and Gul Mohd., who had made the complaint against the accused, and whose report of arrest was entered under Section 36 of the Police Act in the Roznamcha of the Police, both of them remained in custody in the Police Station. They were kept in custody after their medical examination. They, however, did not make a complaint against the accused at that time.
9. Another attesting witness of the superdnama, EXPW-SC/1, is PW Ashok Kumar, who stated that the superdnama was prepared in his presence, but as per the contents of the seizure memo, amount of Rs. 10,479.40 and a watch (Sicko) were not handed over to any body in his presence. The witness was declared hostile. He further stated that the superdnama was not scribed by SHO, Police Station, Nowabad, in his presence nor its contents were read over and explained to him. Mohinder Kumar, however, did not put his signatures on the superdnama in his presence. He also stated that even superdnama EXPW-GM/1 was also not prepared in his presence. He, however, identified his signatures, but denied its contents. The amount of Rs. 13,850/-, as per the contents of the superdnama, was not handed over to Gul Mohd. in his presence by the SHO, Police Station, Nowabad. It is also in his evidence that nobody told him at the time of securing his signatures on the superdnama that this amount was taken as bribe by the accused and recovered from their personal search.
10. PW Bandel Singh is an attesting witness of the seizure memo, EXPW-AS and stated that Sagra Singh, accused, had not produced money in his presence, but the money was, in fact, lying on the table.
11. In a criminal case, it is incumbent upon the prosecution to prove the guilt of the accused by convincing, reliable, positive, cogent and unimpeachable evidence, so as to hold them guilty and record their conviction. The prosecution, in this case, has relied upon two sets of circumstances; one the seizure memos, EXPW-AS/2 and EXPW-AS/3, prepared after personal search of Gul Mohd. and Subash Chander, by Sagra Singh, accused duly attested by marginal witnesses, namely, Shakti Kumar, Ravinder Kumar and Tara Chand, alleged to have reflected less amount than the one seized from their personal search and kept the balance amount with them and thereby misappropriated it; the second set of circumstance is the recovery memo in respect of the amount alleged to have been returned by the accused to the SHO vide seizure memos, EXPW-PD and EXPW-PD/1, prepared by SHO, Amarjeet Singh Bedi and later on returned the said amount and Sicko watch to Subash Chander and Gul Mohd. on superdnama vide EXPW-AS/1 and EXPW-GM/2 duly marginally attested by Ashok Kumar and Mohinder Kumar. As regards the recovery memos, EXPW-AS/2 and EXPW-AS/3, prepared after personal search with regard to the amount recovered from the personal search of Gul Mohd. and Subash Chander, Shakti Kumar, Ravinder Kumar and Tara Chand are its attesting witnesses. These memos are prepared by accused Sagra Singh. PW Shakti Kumar denied the contents of the seizure memo, EXPW-AS/3, and emphatically stated that Sagra Singh did not conduct the personal search of Subash Chander in his presence and recovered Rs. 9,300/- and the wrist watch from his possession. Similarly, he also denied the contents of EXPW-AS/2 prepared for the personal search of Gul Mohd. and stated that amount of Rs. 2,850/- along with one wrist watch was not recovered in his presence. It is also in his evidence that Tara Chand, another attesting witness, did not sign the seizure memos, EXPW-AS/2 and EXPW-AS/3, in his presence. Even his statement, EXPW-RS/6, recorded by SHO, Amarjeet Singh Bedi, was also not attributed to him.
Similarly, Tara Chand, another attesting witness, also denied the contents of the seizure memos, EXPW-AS/2 and EXPW-AS/3, prepared for the personal search of Subash Chander and Gul Mohd. He also denied the recovery of Rs. 2,850/- and Rs. 9,300/- along with wrist watches from their possession. He further stated to have made the same statement to the SHO, Amarjeet Singh Bedi, recorded thereafter. In the like manner, PW Ravinder Kumar did not support the seizure memos, EXPW-AS/2 and EXPW-AS/3 and denied its contents. The evidence provided by the attesting witnesses of the seizure memos, alleged to have been prepared by Sagra Singh after personal search of Subash Chander and Gul Mohd., while making their arrest when found quarrelling with the Dhaba owner under the spell of liquor with regard to the over billing of the food they had taken in the hotel, does not support the prosecution case. None of the attesting witnesses examined by the prosecution to prove the seizure memos of the amount and the watches indicated therein, to have been recovered from the personal search of Subash Chander and Gul Mohd., inclined favourably towards the prosecution case. They have emphatically denied the contents of EXPW-AS/2 and EXPW-AS/3 respectively. In view of this statement, this circumstance has remained unproved.
12. The next circumstance relied upon by the prosecution is regarding the amount produced by Sagra Singh, accused, stated to have been after consulting the other accused and admitting his mistake after enquiry by PW Amarjeet Singh Bedi, SHO. The seizure memos prepared by Amarjeet Singh Bedi have not been supported by its attesting witnesses, so far as the contents of the seizure memos are concerned. According to PW Amarjeet Singh Bedi, the accused had paid some amount first to be followed by the rest of the balance amount of what was less shown in the seizure Memos, EXPW-AS/2 and EXPW-AS/3, after personal search of Subash Chander and Gul Mohd. Padam Dev Singh and Nisar Ahmed, ASI, are the attesting witnesses of the seizure memo, EXPW-PD and they marginally attested it, whereas Padam Dev Singh and Ravinder Kumar, are the attesting witnesses of seizure memo, EXPW-PD/1. Bandel Singh and Nisar Ahmed, ASI, as per the contents of all the aforesaid seizure memos, Sagra Singh, HC, is stated to have produced the money mentioned therein. PW Padam Dev Singh is the attesting witness of seizure memos, EXPW-PD and EXPW-PD/1. In cross-examination, the witness stated that he does not remember, who had produced the money before the SHO. The Police Station is located in the main market, but no independent witness was called at the time the money was produced and seized. Another attesting witness of the seizure memos, EXPW-PD and EXPW-AS is Nisar Ahmed Wani, ASI, who deposed that both the seizure memos were prepared by him at the instance Of Amarjeet Singh Bedi, SHO. In cross-examination, the witness stated that when he prepared seizure memos, the accused was not present there at that time. These seizure memos were prepared in respect of the amounts seized in the Police Station. He had also signed as a witness on the seizure memos. No civilian/independent witness was present at the time the seizure memos were prepared. Whereas PW Bandel Singh is the attesting witness of seizure memo, EXPW-AS, who unambiguously stated in his cross-examination that the money was not produced in his presence. The money was already lying on the table. Besides other witnesses had also signed the seizure memo. None of the attesting witnesses of the seizure memos, EXPW-PD, EXPW-PD/1 and EXPW-AS, with regard to the amount recovered from the accused, has supported their contents. These witnesses have stated with unerring clarity in their respective evidence that the amount was not recovered or produced by Sagra Singh, accused, in their presence. It was already lying on the table, when they put their signatures on the seizure memos prepared at the instance of Amarjeet Singh Bedi, SHO, by Nisar Ahmed, PW, who was also an attesting witness of the seizure memo. Even PW Amarjeet Singh Bedi, in his sole testimony, has nowhere stated that the amount recovered vide seizure memos was produced by Sagra Singh, accused. His evidence is to the effect that the amount was produced by the accused in piece-meal and was recovered vide seizure memos. This makes it abundantly clear that the amount alleged to have been recovered from the accused and produced by the accused, Sagra Singh, on their behalf, cannot be attributed to them. The witnesses, who marginally attested the aforesaid seizure memos pertaining to the recovery of amount from the accused, have not supported the contents of the memos with regard to its recovery from Sagra Singh, accused. The statements made by the attesting witnesses of the aforesaid seizure memos contradicts the contents of the memos in material particulars. Seizure memos, EXPW-PD and EXPW-AS, recited that Sagra Singh, along with other accused, produced the amount whereas witnesses, on the other hand, stated that none of the accused was present at the time when the seizure memos were prepared in respect of the amount, which was lying on the table of the SHO at the time they affixed their signatures on the memo. So, the recoveries, as per seizure memos, EXPW-PD, EXPW-PD/1 and EXPW-AS, alleged to have been effected from the accused cannot be attributed to them for want of sufficient, satisfactory and convincing evidence produced by the prosecution, so as to inspire confidence in the Court. As regards the return of money and watches to Subash Chander and Gul Mohd. by Amarjeet Singh Bedi, SHO, Nowabad, on superdnama vide EXPW-SC/1 and EXPW-GM/1, Ashok Kumar, its attesting witness, stated that neither any amount nor any watch was returned to any person by the SHO in his presence. He also denied the contents of the superdnama to be true and correct. It is also in his evidence that the contents of the seizure memos were never read over and explained to him at the time he was asked by the SHO, Nowabad, to put his signatures. Similarly, Mohinder Kumar, another attesting witness, stated that the superdnama, EXPW-SC/1 and EXPW-GM/1 were not prepared in his presence. He had put his signatures on the memos at the instance of the SHO of the Police Station. The contents of the seizure memos were never read over and explained to him by the SHO concerned. Both the attesting witnesses of the superdnama, EXPW-SC/1 and EXPW-GM/1, vide which the money was recovered and seized from the personal search of the accused along with watches, and are stated to have been returned, have not been supported by their attesting witnesses, Ashok Kumar and Mohinder Kumar. So, the contents of these vital documents in the case remained unproved in the evidence of the attesting witnesses. The only evidence to be appreciated remains that of the Subash Chander and Gul Mohd. PW Kalu Ram, who was Moharer HC, Police Station, Nowabad, on the date of occurrence, has stated with unerring clarity that both these witnesses, Subash Chander and Gul Mohd. were brought to the Police Station under the spell of liquor and after their medical examination, report was entered under Section 36 of the Police Act. They were taken in custody and kept in the Police Station, and at that time, both Subash Chander and Gul Mohd had not made any complaint against the accused having shown less amount in their seizure memos and what was the personal search and how much amount was recovered from their possession. According to PW, Amarjeet Singh Bedi, he was informed by the Duty Officer in the next morning about the accused, who were detailed on Patrol Duty in the previous night, to have reflected less amount in the seizure memos after personal search of the accused while taking them in custody, when found quarrelling after consuming liquor, and kept the balance amount with themselves and misappropriated it. He has nowhere given the names of the Duty Officers nor examined them during the course of the trial. During enquiry, Amarjeet Singh Bedi stated that the accused realized their mistake and told him to have consulted with each other and decided to return the money. No evidence in proof of this fact was produced and examined by the prosecution. That apart, the seizure memos of the money and the watches in respect of personal search of Subash Chander and Gul Mohd. have not been proved by its attesting witnesses.
13. Further case of the prosecution is that the amount, which the accused had kept with them and misappropriated, when returned, was seized vide seizure memos EXPW-PD, EXPW-PD/1 and EXPW-AS. Their contents have not been proved by its attesting witnesses. So, the recovery of the amount from the accused vide aforesaid memos, when their contents remain unproved in the evidence of attesting witnesses, could not be attributed to the accused. The return of the money, vide superdnama EXPW-SC/1 and EXPW-GM/1, as also their contents, remain unproved by their attesting witnesses. The evidence of Subash Chander and Gul Mohd, as regards their complaint against the accused having shown less amount in the seizure memos after their personal search than what was recovered and misappropriated the same, also remained unsupported by any independent evidence.
14. It is admitted case of the prosecution that both these witnesses were arrested and taken in custody after they became violent and found quarrelling with the owner of the “U-Like Dhaba” over the excess billing for the meals they had taken there, and after their medical examination, a report under Section 36 of the Police Act was entered in the Roznamcha of the Police Station. None of the Police Officers including SHO and SP said in their respective evidence as to what has happened to the report under Section 36 of the Police Act against Subash Chander and Gul Mohd. It seems that no complaint seems to have been preferred in the Court against them and the matter appears to have been hushed up evidently either on account of some external pressure or for the reasons best known to the prosecution. These witnesses, therefore, can neither be said to be honest nor truthful, particularly, when all the incriminating documents in the shape of seizure memos and recovery memos relied upon by the prosecution with regard to the misappropriation of the amount by the accused remained unproved in the testimony of its attesting witnesses, which is neither sufficient nor acceptable to warrant conviction of the accused. The prosecution has not succeeded to prove that, during enquiry, the accused persons produced the balance amount of Rs. 12,179.40, which was duly seized vide EXPW-PD, EXPW-PD/1 and EXPW-AS, and was alleged to have been misappropriated by the accused persons. Even the production of the said amount by the accused has not been established by its attesting witnesses.
15. Credibility of a witness has to be decided by referring to his evidence, conduct and character and finding out how he has fared in cross-examination and what impression is created by his evidence taken in the manner and context of the case and not by entering into the realm of conjectures and speculations.
16. On scrutinizing the evidence of the prosecution in general and that of both Subash Chander and Gul Mohd in particular, it is found that it is neither reliable nor plausible nor bears a ring of truth, so as to prove the guilt of the accused beyond any pale of doubt. The Trial Court has misappreciated the evidence, when the accused cannot even remotely be connected with the commission of the crime, in view of the nature and sufficiency, character and credibility of the evidence placed on record. The evidence gathered is both quantitatively and qualitatively insufficient to prove the guilt of the accused beyond hilt.
17. The infirmities, deficiencies and drawbacks pointed out in the evidence, as a whole, and evaluating them in general tone and tenor, it stands shaken and rendered unworthy of belief, and for and on account of these reasons, weighed and formidable, the prosecution case crumbles down like a pack of cards. The appellants, therefore, have sufficiently and satisfactorily carved out a case for interference of this Court in the Appeal.
18. Consequently, I allow the Appeal, set aside the order of conviction and subsequent sentence recorded by the Trial Court for offences under Section 5(2) of the Prevention of Corruption Act, 2006 (BK), with which they stand charged. Accordingly, the accused are ordered to be acquitted in resultant thereof. The appellants-accused, I understand, are on bail, their bail bonds shall stand cancelled.