JUDGMENT
K.B. Panda, J.
1. Appellant has been convicted Under Section 5(1)(d) of the Prevention of Corruption Act read with Section 5(2) thereof (hereinafter referred to as the ‘Act’) and Under Section 161, I. P. C. Under the latter count he has been sentenced to undergo R. I. for one year and to pay a fine of Rupees 700/- in default to undergo R. I. for a further period of three months. However, no separte sentence has been passed under the first count.
2. It is alleged by the prosecution that the appellant received a bribe of Rs. 200/-(M. Os. 1 to XX in 10 rupee currency notes) on 18-7-1973 at about 3 P. M. in Kiran Restaurant in Berhampur town from P. W. 2. The background for offering the alleged bribe is that earlier on 3-7-1973 one Gandu Sahu had lodged an information against P. W. 1 and his brother alleging robbery against them. In consequence thereof it is alleged that they were taken to custody by the appellant and kept in detention at the Berhampur Taluk P. S. where he was the officer-in-charge. As P. W. 2 went to the P. S. for the release of P. W. 1 and his brother, it is alleged, that the appellant had demanded Rs. 500/-. But P. W. 2 did not offer any money. However, these two persons obtained their bail from court the next day on 4-7-1973. Further the prosecution case is that on 17-7-1973 the appellant accidentally met P. W. 2 at Aska Road. There he suggested to P. W. 2 that if he would give him Rupees 200/- then the appellant would minimise the gravity of the offence against P. W. 1 and his brother. P. W. 2 agreed to this and it was settled between them that the money would be handed over to the appellant while he would be taking his lunch in the local Kiran Restaurant at 2 P. M. the next day. Accordingly P. W. 2 on 18-7-1973 approached the vigilance D. S. P. (P. W. 7) with a written complaint as to how the appellant had demanded Rs. 200/- from him to be given as bribe for minimising the gravity of the offence as against his nephews (P. W. 1 and his brother). He had also in that complaint i. e. Ext. 1 noted the number of the notes. This was treated as F. I. R. and the D. S. P. Vigilance (P. W. 7) directed the Investigating Officer (P. W. 8) to arrange a trap. The services of an assistant of the Commercial Tax Department (Vigilance) (P. W. 3) along with a Magistrate (P. W. 6) were requisitioned. The raiding party consisting of the D. S. P. (P. W. 7), I. O. (P. W. 8), P. W. 3 and two other officers of the vigilance department proceeded in a jeep towards the Kiran Restaurant. The decoy witness (P. W. 2) had told the D. S. P. and other officers of the Vigilance Department that he would go ahead and pick up a friend, namely, Rama Krushna Patnaik (P. W. 5) who would give them intimation after he had paid the bribe to the appellant, It was agreed and so P. W. 2 left ahead of the raiding party which, as previously arranged, was to wait near Hanuman Temple.
The appellant at about 2.30 P. M. was taking his lunch in Kiran Restaurant. P. W. 2 went and sat On a chair across the table. P. W. 5, the over hearing witness occupied his seat on a chair opposite to the counter, The situation of the Kiran Restaurant is in the shape of an “L”. According to the prosecution P. W. 2 on a demand from the appellant, gave the notes (M. Os. I to XX) which had already been signed by the Magistrate (P. W. 6) to the appellant who kept the same in his left side pant pocket. Thereafter P. W. 5 went and informed the raiding party which came and demanded the bribe accepted from P. W. 2. However, it is alleged that on some pretext the appellant threw away the bunch of notes which were recovered lying under a table in the same room. Thereafter the case was investigated by P. W. 8 who submitted charge-sheet against the appellant ending in his conviction as aforesaid.
3. The defence is that he has not accepted any bribe from P. W. 2 and that the vigilance staff being hostile to him and P. W. 2 being aggrieved for not letting out his nephews on bail have combined and foisted this false case.
4. There are 8 witnesses for the prosecution and one for the defence. Out of the P. Ws. the material witnesses are P. W. 2, the decoy witness, P. W. 3 and P. W. 6 the two independent witnesses taken along with the raiding party and P. W. 5 who had been chosen by the decoy witness to give signal to the raiding party after the appellant had received the bribe. P. W. 6 is the hotel keeper, P. Ws. 7 and 8 are respectively the D. S. P. Vigilance and the I. O. The defence witness is the junior S. I. attached to Berhampur Taluk P. S. He had worked for only 9 days under the appellant. Be it stated here that the appellant was also in charge of Berhampur Taluk P. S. for a fortnight having taken over charge on 3-7-1973. This defence witness, proves some station diary entries indicating that one vigilance Sub-Inspector named Bhagaban Pati had previously attempted to start a case against the wife of the Bench Clerk of the A. D. M. (Judicial). Berhampur. The appellant did not oblige Bhagaban Pati and did not start a case as desired by him. It is further alleged by the defence that the vigilance Inspector Shri S. Adhikary (not examined) has phoned up to the appellant saying how the vigilance D. S. P. desired that the case against the wife of the Bench Clerk of the A. D. M, (Judicial) be initiated. Be it stated here that Ext. F is the station diary entry dated 11-7-1973 to the effect that Bhagaban Pati Vigilance Sub-Inspector lodged information against the wife of the Bench Clerk of the A. D. M. (Judicial) Berhampur. Ext. F/l another station diary entry dated 14-7-1973 indicates how pressure was put on the appellant by the vigilance people including the D. S. P. that a case should be started against the wife of the B. C. of the A, D. M. (Judicial) Berhampur. Admittedly the appellant resisted the attempt of the vigilance to put a lady into trouble for which they left the P. S. “with a revengeful attitude”. Exts. F and F/l clearly show how the appellant was not in the good books of the local vigilance people. The oral evidence of D. W. 1 further strengthens it.
5. It was contended on behalf of the appellant that there is no evidence worth the name that the appellant demanded Rupees 500/- from P. W. 2 on 3-7-1973 and that, therefore, the learned lower Court has rightly disbelieved that aspect of the prosecution case. It was also contended that non-acceptance of this part of the prosecution case has a great adverse impact on the allegation of having offered Rs. 200/- as bribe subsequently. In fact, there are unimpeachable materials to show that this demand of Rs. 500/- on 3-7-1973 is doubtful. The oral evidence in this regard is so discrepant that it does not inspire confidence, Further from Ex. C, a station diary entry dated 3-7-1973 it is clear that P. W. 2 had never approached the appellant for release of his nephews on the date of their detention on 3-7-1973. Who had approached the appellant was a doctor of Hillpatna named Mr. Bose and when he was disappointed by the appellant he left the Thana in an aggrieved mood. Again this aspect of the case does not find place in the F. I. R. (Ex. 1) written by the decoy witness coolly at his residence, Thus there is enough force in the contention of the appellant that rejection of the prosecution case of an earlier demand of bribe of Rupees 500/- goes a great way in improbabilising the instant case.
6. Before discussing the evidence of receipt of the alleged bribe some of the prominent features of the case need be mentioned. The decoy witness, as is the instant case, did not approach the Vigilance for putting a trap. He had hatched it himself. He only needed the help of the Vigilance in his endeavour so much so that the learned Additional Standing Counsel appearing on behalf of the State had to concede that the part played by the Vigilance in the instant case was nothing more than playing the second fiddle. P. W. 2 had drafted the F. I. R., noted the numbers, of the notes, had a phone talk with the appellant for about two minutes, ascertained when he would go to Kiran restaurant for lunch and picked up his own man (P. W. 5) to convey the message of acceptance of bribe to the raiding Vigilance party. The Vigilance did not interfere in any of these activities of the decoy witness. The Vigilance got two independent witnesses (P. Ws. 3 and 6) but did not utilise any of them as an overhearing corroborative witness to the decoy witness. Further the notes were not treated with phenolphthalein powder See Raghbir Singh v. State of Punjab so that the handling of the same by the appellant could have been detected by chemical process unless it be presumed that the local Vigilance staff were ignorant of that method. There is absolutely no corroborative evidence as to the talk between the decoy witness and the appellant in consequence of which the bribe was accepted. Even the friend of the decoy witness whom he had chosen did not support him and so declared hostile. The only other witness available was the restaurant-keeper (P. W. 4) who also did not support the prosecution. Thus the evidence of the decoy witness stands alone. If really a trap was going to be laid it is unfortunate that the Vigilance left the whole matter to the decoy witness and remained content in holding the candle. Further the alleged case of 3-7-1973 was one of robbery in respect of removal of a cycle. By 17-7-1973 the case would have advanced far and how the appellant could minimise the gravity of the offence is a little difficult to appreciate. Again the manner in which this conversation cropped up suddenly while P. W. 2 met the appellant accidentally at Aska Road remains a mystery. Added to it the defence theory that he was not in the good books of the local Vigilance staff is borne out by documentary evidence.
7. Coming to the evidence in the case P. W. 3, the independent witness, stated thus :
When the I. O. told the accused that he would take his personal search, accused put his hand inside his left hand side pant pocket. Thereupon I. O. caught hold of his hand. Thereupon accused withdrew his hands from his pocket, holding the money and threw away the money, saying that he did not know what the money was and the money did not belong to him, The money fell down under the table kept on the side of the table where the accused was sitting. I. O. picked up the money from that place and made it over to the Magistrate. Before that accused had tried to snatch the money away from the hands of the I. O.
From the evidence of this witness, it is clear as if the bunch of notes was thrown away which would mean that they must have fallen on the floor scattered. But he himself in cross-examination has stated that the G. C. notes were found in a bundle with a single fold under the table. Further if the appellant had once thrown the notes to disclaim possession, it is difficult to understand why he would again try to snatch back them from the hands of the I. O. so as to implicate himself.
P. W. 4 stated thus :
I then heard accused saying that the case was no longer in his control or with him and that he could not do anything in the matter of that case. Just then the person who was taking the pudding along with some members of Vigilance personnel came to the restaurant in a jeep. Some of the Vigilance people told the accused that they would search his pockets. They searched his pockets but found nothing. The Vigilance people then said that there was money in the pocket of accused and that it should be traced out. One of them then said that money was lying at a corner. Thereafter the vigilance police prepared some writings.
He is the only independent witness to the over-hearing. But what he has stated does not support the prosecution at all.
P. W. 5, the friend of the decoy witness was turned hostile and was cross-examined by the prosecution. This completely destroys the prosecution case.
P. W. 6 is the Magistrate and independent witness whose services had been requisitioned to help the vigilance in laying the trap. But as already indicated, he remained away at a distance of one furlong near the Hanuman temple and so he is not a competent witness to speak about the over-hearing of the conversation between the appellant and the decoy witness. However regarding the recovery his evidence is thus :
The vigilance officers sorrounded him and D. S. P. demanded that he (accused) should produce the money which he had taken as bribe. Thereupon accused stood up and moved towards his. left, putting his hands inside both pockets of his pant. After so moving for three to four cubits, he (accused) slipped out the money from his left side pant pocket and let it drop to the ground. The money fell under an adjoining table. Thereupon, I asked the I. O. to seize the money.
When the raiding party had already got information of acceptance of the bribe and in fact had sorrounded him, there was no justification for allowing him to go some steps this way and that way and further allowing him to slip the notes and much more so when P. W. 3 had stated that his hands had been caught hold of. On an analysis of the above evidence, it Is clear that there is no evidence to support the decoy witness. The raiding party having taken the assistance of the two independent witnesses such as P. Ws. 3 and 6 should have utilised their services in a profitable manner. For reasons best known to the prosecution they were kept about a furlong away from the scene of occurrence. The prosecution allowed the decoy witness to pick up a friend of his choice to figure as the over-hearing witness who let the prosecution down. The case of Sat Paul v. Delhi Administartion is a parallel case where their Lordships held that the prosecution evidence being unworthy of credit while the defence convincing, the accused is entitled to the benefit of doubt In the instant case the prosecution has miserably failed to discharge the initial burder that lay on it. That apart the defence has proved its case with unimpeachable contemporaneous documentary evidence as to how he was not in the good grace of the local Vigilance staff.
8. From the above discussion it would follow that conviction of the appellant is not sustainable. The appeal is, therefore, allowed and the conviction and sentence of the appellant are set aside. He be released from the bail bond.