JUDGMENT
Satpal, J.
1. This appeal is directed against the judgment dated 15th June, 1989, passed by the Special Judge, Rohtak, in Corruption Case No. 1 of 1989, whereby the learned Special Judge convicted accused-appellant under Section 5(1)(d), read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred as the Act) and Section 161 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 500/- for the offence under Section 5(1)(d) read with Section 5(2) of the Act, and in default of fine, to undergo further rigorous imprisonment for three months.
2. The appellant was further sentenced to rigorous imprisonment for three years for offence under Section 161, Indian Penal Code, and the two substantive sentences were to run concurrently.
3. Briefly stated, the case of the prosecution was that on the night between 5th and 6th July, 1988 Shri Lajbir Singh, who was working as Under Secretary Anti-Corruption Department to Haryana Government, and Inspector Chandgi Ram, who was attached to the Chief Minister’s Flying Squad, Road Tax Check Barrier, were present at the Sales Tax Barrier, where a truck driver of Truck No. DIL 4038, namely, Sarwan Kumar came there in order to show papers at the Sales Tax Barrier. The said Truck-driver complained that at the Road-Tax Barrier, Bahadurgarh, no vehicle was being allowed to pass until a sum of Rs. 1 (V- or Rs. 20/- was paid as bribe. Shri Lajbir Singh asked the said driver that he should get the notes marked by them and pass them on to the person concerned on demand. Thereafter, Sarwan Kumar produced Rs. 20/- note Exhibit P. I, which was initialled and dated by Lajbir Singh, and the same was given back to driver Sarwan Kumar and he was told that he should pass on the said currency note to the official concerned on demand. The raiding party of Shri Lajbir Singh, under Secretary, Anti-Corruption Department, Inspector Chandgi Ram, ASI Munshi Ram and a Constable was formed. Inspector Chandgi Ram, ASI Munshi Ram and the Constable went to the Road Tax Barrier in the truck of Sarwan Kumar and Shri Lajabir Singh followed them in a jeep. On reaching the Road Tax Barrier, Sarwan Kumar went to the tent where Sudershan Kumar accused was present. It is alleged that Sudershan Kumar accused demanded the money and Sarwan Kumar gave him the marked currency note, Exhibit P. 1 and this was seen by Shri Lajbir Singh, Under Secretary and Inspector Chandgi Ram. It is further alleged that after the money was passed, the raiding party raided the accused and searched his person and recovered currency note, Exhibit P. 1 from his pocket. Thereafter formal F.I.R. Exhibit PA/1 was recorded at 4.10 a.m. and the case against the accused was registered.
4. The prosecution examined Shri Lajabir Singh, under Secretary (PW4) and Inspector Chandgi Ram (PW5) who were the members of the raiding party and three formal witnesses. Relying on the evidence of the aforesaid witnesses, the appellant was convicted and sentenced as stated herein above. It may, however be pointed out here that the prosecution could not produce Driver Sarwan Kumar as he was not traceable.
5. Mr. Gill, learned Senior Counsel, appearing on behalf of the appellant, submitted that in the present case, the prosecution has failed to prove the fact that the appellant had demanded any bribe money from the complainant, Sarwan Kumar. He submitted that complainant Sarwan Kumar has not been examined by the prosecution. He drew my attention to the evidence of Inspector Chandgi Ram (PW5) and submitted that the said witnesses had stated that Sarwan Kumar went to the Barrier in the tent and there the accused took money from Sarwan Kumar. He further submitted that as per the site plan, Exhibit P.E., the said tent was across the road and the raiding party was on the other side of the road. He also submitted that P.W. 5 in his cross-examination, had stated that the said road might be 30′ -40′ wide and he could not deny the suggestion that it was 100 ft. wide. He, therefore, submitted that it was not possible for Inspector Chandgi Ram (PW5) to hear the talk which allegedly took place between the accused and Driver Sarwan Kumar. The learned counsel, therefore, contended that since the demand of money was not proved, the conviction of the appellant could not be sustained. In support of his contention, the learned counsel placed reliance on two Judgments of this Court in Ram Krishan Juneja v. State of Haryana, 1993 (1) Rec Cri R 312 and Amrit Lal v. State of Punjab, 1973 Chand LR 210.
6. The learned counsel further submitted that in the present case, there was no circumstantial evidence as phenolphthalein powder was not used. He, therefore, contended that in such a case, the evidence of the trap witnesses could not be acted upon in the absence of some independent corroborative evidence. In support of this contention, he placed reliance on Tikkam Das K. Dossani v. State, 1993 Chand L R 299; Raghbir Singh v. State of Punjab, 1976 Cri LJ 172: (AIR 1976 SC 91) and Khilli Ram v. State of Rajasthan, 1985 (1) Rec Cri R 66 : (1985 Cri LJ 504).
7. Mr. Goripuria, learned Assistant Advocate General, appearing on behalf of the State, submitted that the tent where the amount of bribe was accepted by the accused was an open tent and it could not be said that the members of the raiding party were not in a position to hear the talk between the accused and the complainant Driver when the currency note, Exhibit P. 1, was passed on to the accused. He further submitted that though the complainant has not been examined in this case, but the trap witnesses have clearly provided the case of the prosecution.
8. I have given my thoughtful consideration to the submission made by the learned Counsel for the parties and have perused the record. Lajbir Singh (PW4) has stated in his cross-examination that “It is true that the drivers were coming and placing money, some 10 rupees, some 20 rupees on the table on the Road-tax Barrier.” From this statement, it is clear that many drivers who were independent witnesses were available at the time of occurrence but no independent witness was associated by the raiding party.
In State of U.P. v. G.K. Ghosh, AIR 1984 SC 1453: (1985 Cri LJ 904), the Supreme Court held as under (at p. 909 of Cri LJ) :-
“The Court may, therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When, therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case.”
9. In the present case, the conviction is based on the evidence of Police Inspector Chandgi Ram and Lajbir Singh, Under Secretary, Anti-Corruption, who were the members of the raiding party. The site plan, Exhibit P.E. was proved by Inspector Chandgi Ram and from the site plan, it is evident that the tent where the accused is alleged to have accepted the bribe money was on one side of the road and the raiding party was on the other side of the road. Both P.W. 4 and P.W. 5 have stated in their cross-examination that the width of the road could be 100 feet wide. In view of this distance, it does not appear to be possible for Inspector Chandgi Ram and Lajbir Singh to hear the alleged talk between the accused and the driver Sarwan Kumar. The demand of bribe could have been proved by Driver Sarwan Kumar, and unfortunately, the prosecution has failed to produce the said driver. There is another discrepancy in the statements of P.W. 4. In his examination-in-Chief, P.W. 4 stated that the currency note, Exhibit P.I was recovered from the pocket of the accused. However, in the cross-examination, this witness stated that drivers were coming and placing money, some 10 rupees, some 20 rupees on the table on the road-tax barrier. Admittedly, in the present case, the currency note was not treated with phenolphthalein powder. In the absence of circumstantial evidence, and particularly when the demand of bribe has not been satisfactorily proved, it will not be safe to convict the accused on the basis of evidence on record, particularly when the evidence of trap w it-nesses has not been corroborated by any other independent witness. The view I have taken finds support from a judgment of the Supreme Court in Darshan Lal v. Delhi Administration, AIR 1974 SC 218: (1974 Cri LJ 307).
In view of the above discussion, the appeal is allowed. The conviction and sentence of the appellant is set aside. The bail bond is discharged.