JUDGMENT
Inder Sen Israni, J.
1. This criminal appeal has been filed by the appellant against the judgment dated 4-8-78 passed by the Special Judge (Anti-Corruption Cases) Rajasthan Jaipur in Special Criminal Case No. 23/75 whereby, the accused appellant has been convicted under Section 161 I.P.C. and sentenced to undergo one year’s rigorous imprisonment and a fine of Rs. 300/- in default of payment of fine, to undergo further simple imprisonment for one month. The appellant was further convicted under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and was sentenced to under go 1 year’s rigorous imprisonment and a fine of Rs. 300/-in default of payment of fine, to undergo one month’s simple imprisonment. Both the sentences were to run concurrently.
2. A verbal complaint was lodged on 9-1-1973 at 10.50 a.m. by Mohamad Umar with the Addl. Superintendent of Police, Anti-corruption Department, Rajasthan, Jaipur. The complainant in his report stated that he was a auto-rickshaw driver of auto-rickshaw No. RSL 8851. On 1-1-1973 at about 7.30 p.m. when complainant was coming from Moti Doongri Road towards Johari Bazar, at the crossing of Sanganeri Gate (here was green light, as such he proceeded further. However, the moment be proceeded further, the light converted into red, as such one traffic constable stopped him and a chhallan was prepared for his autorickshaw. The complainant also signed on a printed form. His driving license was also seized and a receipt of the same was given to him. It was also mentioned in the verbal report that the accused appellant told him that if an amount of Rs. 10/- as illegal gratification was paid to the appellant, the challan will be destroyed. The complainant desired that the accused appellant should be trapped and handed, as such he approached the Addl. S.P. Anti Corruption Department, Jaipur and G.C. notes totaling to Rs. 10/- (one G.C. note of Rs. 5/-, and G.C. note of Rs. 2/-and 3 G.C. notes of Re. 1/-) were submitted to the Addl. S.P. There upon, the Addl. S.P. directed Hanuman Prasad Soni to apply phenolthelin powder on the above mentioned G.C. notes. The complainant was directed that the above notes may be handed over to the accused appellant when he demands the same from him. He was further directed that when this amount of illegal gratification is passed to the appellant, the complainant should give signal by lighting his cigarette. In this connection a Furd Supuradginama of G.C. notes (Ex. P 1) was prepared. PW 13 Khem Chand Tejwani, Addl. S.P. also get prepared a photostat copy of the receipt regarding seizure of papers from the complainant. At about 3 50 p.m. on the same day, the Addl. S.P., leader of the trap party started in a Jeep for laying trap against the accused appellant, along with PW 4 Hanuman Sahai Soni, L.D.C. PW 5 Jagdish Singh L.C. and Gopal Singh constable who has not been examined as a witness. At the time of applying phenoltbelin powder to the notes, PW 1 Raghuwar Dayal, motbir witness was present. He was directed in the morning when the FIR was lodged to come at 3.50 p.m. He also accompanied the raiding party. The party reached Sanganeri Gate, but the accused appellant was not found there. Therefore, the complainant was directed to meet the appellant in control room situated near Ajmeri Gate, Jaipur. The complainaut went into the control room and met the accused appellant. He came back at about 6.30 p.m and informed the Addl. S.P. that he had obtained his licence, but the money could not be given to the appellant, as such the trap could not be materialised on that day. Therefore, fresh trap was led on the following day i.e. 10-1-1973 at about 10.30 a m. along with PW 4 Hanuman Prasad Soni, PW 5 Jagdish Singh and PW 2 Surendra Kumar The jeep was kept near the State Bank of India out side Sanganeri Gate. PW 9 complainant Mohd. Umar as per directions also came at that place. The appellant was seen near a ‘Thela’ at Sanganeri Gate the complainant approached the accused appellant. Thereafter both of them entered in a restaurant named Brij Mishthan Bhandar. According to the prosecution story, after eating some-thing in the restaurant, currency note of Rs. 5/- was passed on to the appellant. The accused put the note in his purse and kept the same in the pocket of his shirt. At that time, the complainant was having a small baby in his lap. When the GC note of Rs. 5/- was passed on the appellant the complainant came out from the restaurant and gave signal by lighting cigarette, whereupon, the members of the trap party entered in the restaurant. PW 13 Khemchand Tejwani after giving his identification, enquired from the appellant regarding receipt of note from the complainant. In the begining, the appellant denied, but subsequently admitted to have received the note and the same was taken from his possession. The hands of the appellant were washed with water containing sodium carbonate, which turned to pink colour. This water was also put in the bottle and kept in possession by the police. A shirt, purse and diary along with 26 challans were also taken in possession by the prosecution. After completing investigation, a challan was filed against the accused appellant.
3. During trial, the prosecution examined as many as 13 witnesses in support of its case. Thereafter, the accused appellant was examined under Section 313 Cr. PC Learned trial court after examining the evidence and hearing both the sides, convicted and sentenced the accused appellant as indicated above.
4. I have heard Mr. B.K. Pathak learned Counsel appearing on behalf of the accused appellant and Mr. Suresh Chand Sharma, learned Public Prosecutor and have also gone through the judgment, evidence and documents on the record.
5. The contention of learned Counsel for the appellant is that the prosecution has miserably failed to prove that any demand regarding illegal gratification was made by the appellant or any note Rs. 5/-was recovered from him as alleged by the prosecution. Learned Counsel has further pointed out that in the case of this nature, it is absolutely necessary that the whole proceedings should take place in presence of motbir witness (independent witness) but in this case PW 1 Raghuwar Dayal, an independent witness has not supported the case of the prosecution. There are major contradictions even in the statements of Police witnesses and no reliance can be placed on such evidence. He therefore, contends that in the absence of any independent witness to support the case of the prosecution, the trial court has seriously erred in relying upon untrust worthy evidence of police witnesses. He has pointed out that some of the prosecution witnesses stated that a note of Rs. 5/- was given and recovered from the appellant while others say that 4 notes of denomination of Rs. 2/- and Re. 1/- were recovered from the appellant. This according to the learned Counsel clearly proves that the alleged eye witnesses were not present at the relevant time and therefore, no reliance can be placed on such evidence.
6. Learned Public Prosecutor, on the other hand had supported the judgment of the trial Court and has pointed out that merely because the witnesses are employed in Police department, their evidence cannot be termed to be unreliable. He contends that minor contradictions will always come up in the statements of witnesses and such minor contradictions only show that the witnesses are not tutored and have spoken the truth. He, therefore, contends that the accused appellants has been rightly convicted and his appeal deserves to be dismissed.
7. PW 1 Raghuwar Dayal, motbir witness, in his statement has stated that at the fixed time after waiting up to 6.00 p.m. complainant Mohd. Umar told that the appellant seems to have gone to Yadgar. Thereupon they went to Yadgar and PW 9 went inside to talk to the appellant. He came out after about 1/2 an hour 45 minutes and told them that the appellant has told him he may bring Rs. 10/- and he will cancel the challan. At that time it was decided that he should come on the next day at 9.15/9.30 in the morning. He reached the building of State Bank of India near Sanganeri Gate at about 10.15 a.m. After some-time PW 4 Hanuman Prasad Soni Came to him and told him to go to the hotel as Ishwar Singh has been arrested. While going to hotel, PW 9 Mohd. Umar also met him and told him that he had given Rs. 51 to the appellant When he reached the hotel he found one note of Rs. 5/-in the hand of PW 3 Tejwani. In the cross-examination, he has admitted that in his presence the appellant did not demand or take any illegal gratification from Mohd. Umar nor any amount of illegal gratification was recovered from the appellant. No receipt was taken in his presence. He has further stated that in this presence, the accused appellant told PW 13 Tejwani that Mohd. Umar had thrown Rs. 5/- on the table and went away.
7. PW 2 Surendra Kumar H.C is also a trap witness. He has stated that he along with Constable Jagdish PW 5 and Hanuman Prasad Soni PW 4 had accompanied the trap party on 10-1-1973. He further states that the complainant first talked with the appellant and tried to give him some money, which however, the appellant did not accept. Thereafter, both went to a’ hotel Brij Misthan Bhandar at Sanganeri Gate and sat on a bench opposite to each other. All the 3 witnesses were standing in Baramdah of the hotel, after some time, the complainant came out smoking cigarette and told that the accused appellant had taken illegal gratification. When the appellant came out of the hotel, PW 13 Mr. Tejwani enquired from the appellant whether he had taken any money from the complainant. On this, the appellant became nervous, but thereafter took out a purse from the pocket of his shirt and took out the amount of Rs. 5/- (one note of Rs. 2/- and 3 notes of Re. 1/-) from the purse and handed over the same to Mr. Tejwani. In cross, he has stated that a Fard Jabti of these notes was prepared by PW 13 Mr. Tejwani.
8. PW 3 Chiranjilal, owner of the restaurant where the money is alleged to have exchanged hands has stated that soon the appellant came out of the restaurant, one person enquired from him what he had taken and took out a purse from the appellant. The appellant opened the purse and took out a note of Rs. 5/- and gave it to them. The bands of the appellant were got cleaned and the water became dirty, but did not become pink. This water was put into the bottles and were sealed. This witness could not recognize the purse when it was shown to him. He was also shown 4 notes (one of Rs. 21- and 3 of Re. 1/-), which had signatures, but he could not say from where these notes came. This witness was declared hostile by the prosecution. In cross-examination, he denied that the police had taken any statement marked Ex. P 2.
9. PW 4 is Constable Hanuman Prasad Soni, who also accompanied the trap party, has stated that on 10-1-1973 in the morning, in the first instance complainant Mohd. Umar tried give illegal gratification to the appellant while he was standing at Sanganeri Gate near a Thaila where the appellant was preparing challan, but the appellant refused to take the same from him Thereafter, they went towards the hotel. He along with Jagdish PW 5 and Surendra Kumar PW 2 were standing in Baramadah of the hotel. After some time, Mohd. Umar gave signal and came out of the hotel and he informed the Addl. S.P. The complainant again went inside the hotel, took his child and went away from there. Thereafter, the appellant came out of the hotel and PW 13 Mr. Tejwani gave him his introduction and asked him to produce the currency notes of illegal gratification. The appellant there-upon took out a purse from his shirt and took out a note of Rs. 5/- from the purse and gave it to Tejwani. Thereafter, this witness went away to the State Bank of Bikaner and Jaipur to bring Jeep. On the way, he met Raghuwar Dayal, whom he sent to the hotel. In cross he admits that the amount of illegal gratification was not recovered in presence of the complainant, as the complainant had come back after about one hour. He has further stated to have given the statement (Ex. D 1) in police. He admits that after sealing the bottles the same remained with PW 13 Mr. Tejwani and were not given to any witness or to the Motbir. He could not explain why the settled amount of illegal gratification of Rs. 10/- was not given and only Rs. 5/- were given by the complainant.
10. PW 5 Jagdish, constable has stated that while he was standing in Baramadah of the hotel, he saw the complainant taking out one note of Rs. 5/-, one note of Rs. 2/-and 3 notes of Re. I/- and gave the same to the appellant. However, the appellant out of the above notes, took out only one Rs. 5/- note and rest of the money remained with the complainant.
11. It is pertinent to note that other two witness standing in Baramadah along with PW 5 Jagdish did not see the actual passing over of the illegal gratification as stated by this witness, In cross-examination, he has stated that in his police statement (Ex. D 2) he had stated that he heard the appellant saying that he had told the appellant that he would take Rs. 10/- from him after-wards.
12. PW 6 Ismail who has been declared hostile and PW 7 Akbar Singh has denied that the appellant had earlier taken any illegal gratification from them.
13. PW 9 complainant Mohd. Umar, who has been declared hostile, has stated that when the challan of his auto-rickshaw Ex. P 5 was made, one constable told him that if he pays Rs. 10/- as illegal gratification, he would arrange to get the challan torn off. He has further stated that when he went to Yadgar to meet the appellant the license was returned by the appellant to him, who also demanded money from him. However, the appellant told him that he will not pay the money to him in Yadgar and that he would bring the money from out-side. He has further stated that inside the hotel, he took out all the notes for giving to the appellant and kept the same on the table. Rs. 5/ fell down from the table. He took Rs. 5/- from under the table i.e. one note of Rs. 2/- and 3 notes of Re. 1/- each and came out of the hotel. He further states that he left one note of Rs. 5/- on the table where the accused appellant was sitting. He also states that while he came out of the hotel, the appellant told him that he will tear off the challan. On his coming out of the hotel, he gave signal by lighting cigarette to the trap party. Thereafter he went away to auto-rickshaw standing at the Sanganeri-gate and the police party again called him back after about 1-1/2 hours. He admits that the G.C. note was not recovered in his presence. He further states that after the police had prepared the papers, he was made to sign the same.
14. It is pertinent to note that this witness does not say that after he came out, he talked to PW 13 Khem Chand Tejwani or any other members of the trap party and after giving signal, went away from the hotel. He has denied certain portions in the Police statement (Ex. D 7). He further states that the Dy. S.P. took from him four currency notes i.e. one note of Rs. 2/-and 3 notes of Re. 1/-. He also states that the papers on which the police asked this witness to sign, were not read over to him. He further states that the time of keeping Rs. 5/- on the table, the accused appellant did not say that Rs. 5/- were enough and he will tear off the challan. He further states that it is wrong to say that the appellant had demanded illegal gratification from him.
15. From the evidence discussed above, it is clear that there are material contradictions in the evidence produced by the prosecution whether one note of Rs. 5/- or four notes (one note of Rs. 2/- and 3 notes of Re. 1/-each) were given to the appellant and whether one note of Rs. 5/- was recovered from him or 4 notes of total amount of Rs. 5/- were recovered from him. It is also ambiguous why the amount of illegal gratification was reduced to Rs. 5/-when the matter was settled at Rs. 10/-. Further there is only one motbir (independent) witness Raghuwar Dayal who was to accompany the trap party to witness the giving and recovering the amount of illegal gratification. However, neither illegal gratification amount was given in his presence nor it was recovered in his presence. All other witnesses are the police employees and in view of the absence of even single independent witness, it is difficult to rely on such evidence.
16. Learned Public Prosecutor has submitted that merely because certain witnesses have been declared hostile, it does not mean that their evidence has no value and should not be considered. He has placed reliance on the case of Bhagwan Singh v. State of Haryana , where in it was held by their Lordship of the Supreme Court that where the court gives permission to the prosecutor to cross-examine his own witness, thus characterising him, a hostile witness, that fact does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon such testimony, if corroborated by other reliable evidence. This ruling is of no help to the prosecution in the facts and circumstances of the present case.
17. In the case of Raghuveer Singh v. State of Punjab , the Apex Court of the country has observed as under:
The Officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid. In the present case the search witnesses were interested witnesses and, therefore, their evidence with regard to the giving of bribe and the recovery of the amount from the person of the accused was not relied upon.
In the case of Shantilal Rameshwar v. State of Rajasthan , their Lordships of the Supreme Court held that in absence of evidence to show that the appellant ever demanded bribe or even made suggestion about it to the complainant, conviction cannot be up-held. In the present case also, the evidence has come on record that the demand of Rs. 10/- was made by a constable whose name has not been disclosed in evidence.
18. In the case of Darshanlal v. Delhi Adminisration , it was held by their Lordships of the Supreme Court that there should be independent and trust worthy corroboration of the evidence of the trap witnesses. In the present case, there is absolutely no corroboration from any independent witness regarding giving and recorvering of the illegal gratification.
19. In the case of Bhagwan Singh v. State of Maharashtra , it was observed by their Lordships of the Supreme Court that the entire case of prosecution rested solely on the testimony of Head Constable and his subordinate the police constables. Memo relating to the seizure of currency notes from he accused appellant was also signed as Panch witnesses by Head Constable and his subordinate police constables. No efforts were made to get independent respectable witness in whose presence seizure could be made. In these circumstances, it was held that as the evidence led on behalf of the prosecution threw considerable doubt on the prosecution case and did not exclude reasonable doubt in regard to guilt of the accused appellant, he was entitled to acquittal.
20. In the case of Pannalal Damodar v. State of Maharashtra , when their Lordships of the Supreme Court found the prosecution witness not very reliable, it was observed that it would be hazardous to base conviction on such material. In the present case also the prosecution witnesses do not inspire confidence and their evidence is full of contradictions. The prosecution has not cared to produce any independent witness, who may support its version. In these circumstances it will be hazardous to convict the appellant on such evidence. I am, therefore, of the opinion that in the circumstances, the accused appellant deserves to be given benefit of doubt.
21. In the result, the appeal is allowed. The conviction and sentence passed against the appellant is set-aside and he is acquitted of the charges levelled against him. The appellant is on bail and need not surrender to the bail bonds.