JUDGMENT
Ujagar Singh, J.
1. Kasturi Lal P. W. 1 had purchased some trees from one Naresh Kumar alias Papu for an amount of Rs. 4400/- and a receipt Exhibit P.A. was obtained by him. Kasturi Lal P. W. 1 went to the place and had cut 13 trees on 1st of Aug., 1984 and 13 trees were yet to be cut. At about 4-5 p.m. on that day, Puran Chand appellant came there and asked Kasturi Lal P. W. 1 if he had any permit from the Forest Department. The appellant was told by Kasturi Lal P. W. 1 that it was for the first time that he had done this and that he was not aware of any requirement of obtaining such permit The appellant asked Kasturi Lal P. W. 1 to grease his palm with a bribe of Rs. 250/- if he had got no permit from the Divisional Forest Officer and in that way the trees already cut and the remaining trees after being cut could be lifted from the place. The appellant was told by Kasturi Lal P. W. 1 that he had no money with him at that time and in any case he would 6e coming with Rs. 250/- on the following day and cut the remaining trees and thereupon P. W. 1 was allowed to lift the trees already cut and he brought those cut trees to Dina Nagar and sold them away. Kasturi Lal P. W. 1 did not intend to give bribe and on 2nd Aug., 1984 he came to Gurdaspur where Shri Piara Singh, Inspector, Vigilance Bureau in his office met him. One Sardari Lal was called by the Inspector in his office and Kasturi Lal P. W. 1 narrated the whole sequence of events on which Shri Piara Singh, Vigilance Inspector reduced into writing his statement vide Exhibit P. B. Two currency notes of the denomination of Rs. 100/- each, Exhibits P. 1 and P. 2 and one currency note of the denomination of Rs. 50/-, Exhibit P. 3 were produced before the Inspector who treated the same with phenolphthalein powder and put his initials thereon. The Inspector gave a demonstration to the P. Ws. about the effect of contact of phenolpthalein powder with sodium carbonate. A personal search of Kasturi Lal P. W. 1 was effected and whatever was found on his person was got delivered to Sardari Lal P. W. After nothing having been left with Kasturi Lal P. W. 1, the Inspector delivered him the currency notes, Exhibits P. 1 to P. 3 through a memo Exhibit P. C. which was attested by Kasturi Lal himself and Sardari lal P. W. Sat Pal, Naib Office Kanungo from Tahsil Office, Gurdaspur was called and was joined in the raiding party. This Sat Pal compared the numbers of currency notes Exhibits P. 1 to P. 3 with those entered in the memo Exhibit P.C. and attested the said memo after satisfying that the numbers of the currency notes tallied with each other. Kasturi Lal P. W. 1 was directed to hand over these currency notes to the appellant only on demand made by the latter and not otherwise. He was further directed not to shake hands with the appellant. Sardari Lal P. W. 8 was directed to act as shadow witness and to hear the conversation which takes place between P. W. 1 and the appellant and further witness the passing on of currency notes Exhibits P. 1 to P. 3 by P. W. 1 to the appellant. Sardari Lal P. W. 8 was further directed to raise signal by touching his head with his hands after the appellant had accepted the bribe money.
2. At about 11 or 11.15 a.m. Kasturi Lal, Sardari Lal, Sat Pal, Piara Singh Inspector and others went to Taragarh in a jeep which was parked in front of the School there. Kasturi Lal and Sardari Lal P. Ws. went ahead on foot towards Baknaur chauk. At a place in the chauk, the appellant was found sitting on a cot in front of a shop. On the currency notes having been given by Kasturi Lal P.W. the appellant accepted the same and put the same in the pocket of his shirt worn by him. Sardari Lal P.W. raised signal which attracted Sat Pal etc. to the spot. The raiding party came to the spot and Shri Piara Singh, Vigilance Inspector disclosed his identity to the appellant whose person was searched by the Inspector after Sat Pal P.W. had searched the person of the Inspector. Currency notes Exhibits P. 1 to P. 3 were recovered from the pocket of the shirt worn by the appellant along with two other currency notes, that is, one of the denomination of Rs. 50/- and the other of the denomination of Rs. 20/-. Satpal P. W. prepared the solution of sodium carbonate in a tumbler containing water. Currency note, Exhibit P. 4 was put in that solution and the colour of the solution became pinkish. This solution was put in a phial. Another solution of sodium carbonate was prepared in another tumbler in which the appellant was made to dip the fingers of his hand and the colour of the water became pinkish and this solution was also put in a phial. Thereafter another solution of sodium carbonate was prepared in another tumbler and pocket of the shirt worn by the appellant was dipped therein and the colour of the solution became pinkish and this solution was also put into phial. All these phials were sealed, and shirt was taken into possession vide a parcel. Currency notes P. 1 to P. 3, P. 4, Phials P. 5 to P. 7, shirt P. 8 were taken into possession vide Exhibit P. D. attested by the P. Ws. At the time of the recovery of tainted currency notes from the possession of the appellant and the preparation of the hand wash etc., one Parshotam Raj was also present and he attested the recovery memo Exhibit P. D. After obtaining the sanction, Exhibit P. D., for prosecuting the appellant, from Divisional Forest Officer, Forest Division, Pathankot under Section 5(2)of the Prevention of Corruption Act read with Section 5(1)(d) thereof and Section 161, Penal Code Phials were sent to Director, Forensic Science Laboratory for chemical examination and vide his report, Exhibit P.O. sodium ions and carbonate ions and phenolphthalein were found present in the contents of these phials. The appellant was challaned under the said sections, after investigation.
3. After framing the charge under the said sections, the prosecution examined Kasturi Lal P. W. 1, Sat Pal, Naib Office Kanungo, Tahsil Office, Gurdaspur P. W. 2, Harbans Lal, Clerk D.F.O’s Office, Pathankot P. W. 3, Parshotam Raj P. W. 7, Sardari Lal P. W. 8 and Piara Singh, Inspector, Vigilance Bureau, Gurdaspur P. W. 9 and Naresh Kumar P. W. 4. H. C. Sansar Chand P. W. 5 and Constable Bua Ditta P. W. 6 were examined on affidavits. Report Exhibit P.O. was tendered into evidence.
4. The appellant, when examined under Section 313, Criminal P.C., denied the imputation and stated that it was a false case. He further stated that the prosecution witnesses were interested and inimical against him and that Kasturi Lal was challaned for illegal felling of trees on 28th July, 1984. It was also submitted by him that Parshotam Raj was challaned for illegal felling of trees on 14-7-1984 and that he never accepted from Kasturi Lal P. W. any money as a bribe. In defence, one Rattan Lal D.W. was examined.
5. The trial Court came to the conclusion that the demand for bribe by the appellant on 2nd Aug., 1984 is corroborated by the circumstances indicating recovery of the tainted money from the possession of the appellant and that the statements of the witnesses pointed towards the handling of the currency note by the appellant and then inserting them into the pocket of the shirt worn by him. Kasturi Lal P. W. 1 although specifically directed to give the amount of Rs. 250/- only on demand and not otherwise has not stated anything about the appellant having demanded that amount on 2nd Aug., 1984. Reference to the statement made by him in the following terms will suffice:
In one of chowks of Baknaur accused was found sitting on a cot (again said) the accused was found sitting on a cot in front of that shop. I gave money to the accused. Accused accepted the money and put money in the pocket of shirt worn by him. Sardari Lal P.W. raised signal.
This reference is conspicuous about the absence of any demand having been made by the appellant. Sat Pal P. W. 2 also stated that the Inspector, Vigilance Bureau had instructed Kasturi Lal to hand over currency notes Exhibits P. 1 to P. 3 to the appellant but only on demand by him. Sardari Lal has been examined as P. W. 8 and he stated that he along with Kasturi Lal and Parshotam Raj came together in Vigilance Bureau Office, Gurdaspur where they met Vigilance Bureau Inspector S. Piara Singh. He further stated that Kasturi Lal did not make any statement in his presence in that office and that he was called upon to attest a blank paper. It is further stated that no currency notes of Rs. 100/-, Rs. 100/- and Rs. 50/- were given. This witness was got declared hostile and the learned Public Prosecutor was allowed to cross-examine this witness. In cross-examination he was confronted in extenso with his alleged previous statement Exhibit P. G. which he denied. In cross-examination he further came out with a statement that he had come from Taragarh on that day and was present in Baknaur chowk where he saw a large gathering including the appellant who was lying secured from his arms and in his presence personal search of the appellant was not effected nor any currency notes were recovered. He further stated that he saw the currency notes lying on the table. The statement of Sardari Lal, Exhibit P.G. purports to have been recorded by Inspector Piara Singh on 2nd Aug., 1984. In his statement, Inspector Piara Singh, P. W. 9 is silent about statement Exhibit P.G. which, therefore, is not proved by him. In the absence of any proof, statement Exhibit P.G. cannot be taken into consideration and it is to be assumed that the statement by Sardari Lal as P. W. 8 in Court is correct. The trial Court has excluded this statement from consideration altogether. As already held by me in Ram Singh v. State of Haryana Cr R 92 of 1985 decided on 21st April., 1987 (Reported in (1987) 2 Reports 49 (Punj & Har)) statement of P. W. 8 Sardari Lal can be taken benefit of by both sides and in view of this statement the prosecution story cannot be believed as he has contradicted the same on all material points.
6. The trial Court has itself found that there is no corroboration of the demand made by the appellant on 1st Aug., 1984 and that it was true that there was no corroboration to the reiteration of demand for bribe by the appellant on 2nd Aug., 1984 by Sardari lal P.W. As a matter of fact there is no evidence at all to prove any demand having been made by the appellant from Kasturi Lal P. W. 1 on 2nd Aug., 1984 before he is said to have delivered currency notes Exhibits P.1 to P. 3 to the appellant. In such a situation, reliance can be placed on the decision of the Supreme Court in Bal Krishan Sayal v. State of Punjab Criminal Appeal No. 229 of 1977 decided on 28th January, 1987 (1987) 1 SVLR (Cri) 72 : 1987 Cri LJ 533 in which it was observed by their Lordships of the Supreme Court that the shadow witness Khazan Singh did not speak as to what transpired in the conversation between the bribe giver and the appellant and that the other witness too was not very clear as to what talk preceded the passing of the said currency notes. After considering such unsatisfactory character of the prosecution evidence in regard to the conversation preceding the passing of the currency notes etc., the appellant in that case was acquitted in the view that the prosecution had failed to establish its case beyond reasonable doubt. In view of the above, I hold that in the absence of demand, no offence can be said to have been made out against the appellant.
7. During cross-examination of Kasturi Lal P. W. 1 it was specifically suggested to him that the witness had asked the appellant 2/3 days before 2nd Aug., 1984 to bring 1000 saplings of eucalyptus trees and that the price of 1000 saplings of said trees was Rs. 250/-. This suggestion was, of course, denied by Kasturi Lal P. W. 1 but it has to be seen whether this defence of the appellant in the shape of a suggestion is probable or not although there may be no supporting evidence. Kasturi Lal P. W. 1 was also given another suggestion that he was challaned on 28th July, 1984 for illegal felling of three trees and it was on the report of the appellant. This suggestion was also denied by Kasturi Lal P. W. 1. The appellant examined Rattan Lal, Forester D. W. 1 and he has stated that there was a damage report against Katun Lal and Papu alias Naresh Kumar on 28th July 1984 No. 51920, Range Register No. 45 p. and that Balwan Singh, Forest Guard went to Taragrah along with the appellant with this report but later on this damage report was compounded by the Forest Department and a sum of Rs. 346/- was deposited by Naresh Kumar as damage in the presence of Surinder Pal Sarpanch. This statement supporting a suggestion of the appellant given to Kasturi Lal P. W. 1 in cross-examination was hot challenged by the prosecution. The fact of appellant’s making a report against Kasturi Lal P. W. 1 and Naresh Kumar for causing damage stands established and thus Kasturi Lal P. W. 1 cannot be said to be an independent person upon whose testimony implicit reliance can be placed.
8. Another circumstance coming prominently in the statement of Kasturi Lal P. W. 1 is that he was instructed by the Vigilance Inspector not to shake hands with the appellant at the time of giving bribe but in his cross-examination Kasturi Lal P. W. 1 gave an evasive reply in the following terms:
I do not know whether I wished name stey or shook hands with him.
In this statement the word ‘him’ means the appellant. Taking this statement, as it is, it cannot be said that Kasturi Lal P.W. 1 and the appellant did not shake hands with each other and if this is so, the possibility of hands of the appellant and the pocket of the shirt worn by the appellant after being dipped in water with sodium carbonate mixed turning pinkish cannot be said to be incriminating.
9. Sat Pal P. W. 2 stated in his statement that he had washed his hands only once and with those very hands he made the appellant dip his fingers and with those very hands he dipped the currency notes and with those very hands he dipped the pocket of the shirt of the appellant. From this statement, the evidence of the sodium carbonate mixed water turning pinkish each time when hands of the appellant were dipped, when currency notes were dipped and the pocket of the shirt was dipped cannot lead to any conclusion against the appellant. This witness also does not support the demonstration of the effect of contact of phenolphthalein powder with sodium carbonate before setting out for raid from the Vigilance Bureau office. Therefore the alleged circumstance of the Inspector Vigilance giving a demonstration of the effect of phenolphthalein powder is not established and the prosecution cannot derive any help. The fact of Kasturi Lal P. W. 1 having purchased 26 trees for a consideration of Rs. 4400/- from Naresh Kumar is also not established in view 6f the statement of Kasturi Lal P. W. 1 and Naresh Kumar P. W. 4. According to Naresh Kumar P. W. 4 he sold 26 trees to Kasturi Lal on 25th July, 1984 for a consideration of Rs. 4400/- and he got the cash payment before he signed the receipt which he says was scribed by him on judicial paper in his village. On the other hand Kasturi Lal P. W. in his cross-examination stated that the receipt was given to him by Papu on ordinary plain paper and the same was given by him to the Inspector as it was lying in his pocket in a folded condition. Recovery memo. Exhibit P.N. shows that this receipt was produced before the Inspector only on 7-8-1984 and the look at the receipt makes it clear that it is not on an ordinary plain paper but it is on a petition paper having watermark of ‘Punjab’. These inconsistencies do not rule out the possibility of this receipt Exhibit P. A. to have been prepared only on 7-8-1984 and ante-dated as having been scribed on 25-7-1984.
10. Parshotam Raj P. W. 1 was joined from Baknur chowk when Sardari Lal P.W. gave the signal. This witness has supported Sardari Lal P. W. by saying that he was coming from Pathankot towards his village and at Taragarh Bazar he picked up his cycle from Baknur chowk and saw a large gathering of people there. At the sight of the gathering, he states, that he stopped there and Inspector Vigilance Shri Piara Singh and 5-7 others were also present and in his presence no personal search of the appellant is said to have been taken and tainted currency notes were found lying on the table. After this statement in examination-in-chief, permission was sought from the trial Court to declare this witness as hostile and he was allowed to be cross-examined. In cross-examination by Public Prosecutor, he denied having made statement Exhibit P.P. under Section 161, Cr. P.C. which purports to have been recorded by Shri Piara Singh and denied in extenso his statement recorded therein except that he admitted that in three glass tumblers solution of sodium carbonate was prepared and in one of the same the appellant was made to dip his fingers and the solution became pinkish. He further admitted that in the other two glass tumblers containing water solution of sodium carbonate was prepared and into the same pocket of the shirt worn by the appellant and the currency note of Rs. 50/- was dipped and the colour of the solution became pinkish. This solution, he admitted was put into three separate phials which were sealed. The statement of this witness also cannot be discarded like that of Sardari Lal P. W. and the defence can certainly take advantage of the statement made by this witness in the same way as that of Sardari Lal P. W. 8 observed above.
11. In view of the above discussion, this appeal is accepted, conviction and sentence imposed by the trial Court are set aside and the appellant is acquitted of all the charges.