JUDGEMENT 1. This is an appeal against the Judgement of the Special Judge, Kangra, in a case under Section 5(2) of the Prevention of Corruption Act, 1947, read with Sections 161 and 109 of the Indian Penal Code, whereby the accused Khembu Ram, Head Constable of Police Station Shahpur, has been convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default to undergo further rigorous imprisonment for three months. 2. The prosecution case in brief may be stated, Manmohan Lal was the Sub-Inspector while Khembu Ram was Head Constable and both were posted at Police Station, Shahpur in September, 1969. One Khushi Ram resident of Haripur was suspected for committing theft and keeping stolen property at his house. At first the police officials of Police Station Jawalamukhi summoned him for interrogation. Thereafter the police officials of Police Station, Shahpur started interrogation. A case was registered before them under Sections 457 and 380 of the Indian Penal Code. Their suspicion for Khushi Ram got confirmed and on 7th September, 1969 he was arrested from his house by Khembu Ram accused. He was brought to P.S. Shahpur and it is stated that the Sub-Inspector Manmohan Lal as well as Khembu Ram Head Constable demanded bribe from him and asked him to pay Rs. 2,000/- to hush up the matter. On 8th September, 1969 Ram Dass who is grandson of Khushi Ram learnt about the arrest and he met the Sub-Inspector. It is stated that the demand of bribe was repeated to him and Rs. 1,000/- were demanded. On 8th September, 1969 Ram Dass came to Dharamsala and met Shri Bhagat Ram, Advocate, and complained to him. He was, however, replied that he could report to executive authorities. On 10-9-1969 Khembu Ram brought Khushi Ram handcuffed to Haripur and searched his house but nothing incriminating was found. In the meantime, remand orders were obtained and it is stated that on 10-9-1969 when Khembu Ram was bringing Khushi Ram to P.S. Shahpur, they alighted from the bus at Matour. The Sub-Inspector happened to meet them there. It is stated that the Sub-Inspector demanded bribe from Khushi Ram by raising his two fingers which upon enquiry by Khushi Ram, as he stated, meant a bribe of Rs. 2,000/- and nothing less than that. It is also stated that finally the deal was settled at Rs. 1,000/-. The Sub-Inspector happened to meet them there. It is stated that the Sub-Inspector demanded bribe from Khushi Ram by raising his two fingers which upon enquiry by Khushi Ram, as he stated, meant a bribe of Rs. 2,000/- and nothing less than that. It is also stated that finally the deal was settled at Rs. 1,000/-. On 12-9-1969 Khushi Ram was bailed out from the Court, but still he went to the Police Station with his grand son Ram Dass and some others on 14-9-1969. Ram Dass had also taken his tape-recorder, as they intended to record the talk of bribe which was likely to arise between them and the Sub-Inspector or Khembu Ram. It is said that Khembu Ram brought these men to the Rest House of Shahpur and at that place the bribe talk was repeated which was tape recorded. Ram Dass promised to pay Rs. 1,000/- to the Sub-Inspector through his agent Khembu Ram at 10 A.M. on 15-9-1969 at the bus-stand at Dharamsala. On 15-9-1969 Ram Dass sought interview with the Deputy Commissioner, Kangra at Dharamsla. He gave in writing the F.I.R. (Ex. P.A.) and the Deputy Commissioner entrusted the case to his General Assistant S.N. Verma who in return summoned for assistance Shri K.C. Sharma S.D.M. and Shri Gangbir Singh S.P. One Sant Ram. Lamberdar of some panchayat, was also associated and the party prepared themselves for the laying of the trap. Ram Dass procured for them currency notes (Ex. P.1 to P. 55) of the value of Rs. 1,000/- which were duly signed by Verma. They came and sat in a tea-shop near the bus-stand. There was also a petrol pump nearby. Ram Dass was asked to go and give bribe to Khembu Ram. He was to give the signal by scratching his head. Accordingly at about 4 P.M. Ram Dass gave the bribe money to Khembu Ram whom he found at the bus-stand. He gave the signal and Verma accosted the accused. He was brought to the petrol pump and his search was taken in the presence of the witnesses. The signed currency notes were recovered from him and he was prosecuted for the offence of taking bribe with the aid of Section 5(2) of the Prevention of Corruption Act, 1947. 3. The prosecution made Manmohan Lal, Sub-Inspector, as well as Khembu Ram, Head Constable, as accused in the Cases. The signed currency notes were recovered from him and he was prosecuted for the offence of taking bribe with the aid of Section 5(2) of the Prevention of Corruption Act, 1947. 3. The prosecution made Manmohan Lal, Sub-Inspector, as well as Khembu Ram, Head Constable, as accused in the Cases. Their defence was one of denial. It was stated by Khembu Ram that he had gone to Dharamsala on official work on 15-9-1969. In the Court premises he met his cousin brother Suti Parkash who was involved in some criminal case of which the judgement was to be pronounced on that date. He was interested in that case and the judgement was pronounced at about 3 P.M. and Suti Parkash was acquitted. Thereupon Suti Parkash insisted that the occasion should be celebrated and both of them purchased a bottle of wine and feasted on it. The result was that Khembu Ram got durnk. However, he came to bus-stand where he had to board the bus for P.S. Shahpur. He happened to meet Ram Dass who insisted that he should take tea with him and started dragging him. He clasped him by putting his hand around his waist and because he had a grievance against him due to the case which the accused was investigating against Khushi Ram, Ram Dass stealthily planted the incriminating notes in the pocket of his pant. Later on he was arrested by Verma and others. Thus the accused denied that he accepted or obtained the incriminating amount and stated that he did not take any bribe. The Sub-Inspector Manmohan Lal also denied that any talk took place between him and Ram Dass or Khushi Ram regarding bribe. He asserted that Ram Dass wanted that the case should not be investigated against Khushi Ram who was a history sheeter and a bad character. Since he refused to accede to his request. Ram Dass threatened him and took this revenge by falsely implicating Khembu Ram and himself. In this manner, both the accused denied that any bribe was demanded or was ever paid to them. 4. The prosecution produced 21 witnesses including Bhagat Ram, Advocate, (PW. 1); S.N. Verma. G.A (PW 2); K.C. Sharma, S.D.M (PW 3); Ram Singh (PW. 9) Water carrier of the Rest House of Shahpur Ram Dass (PW. 10) Khushi Ram (PW 16); B.C. Negi (PW 20) and Gangbir Singh (PW. 4. The prosecution produced 21 witnesses including Bhagat Ram, Advocate, (PW. 1); S.N. Verma. G.A (PW 2); K.C. Sharma, S.D.M (PW 3); Ram Singh (PW. 9) Water carrier of the Rest House of Shahpur Ram Dass (PW. 10) Khushi Ram (PW 16); B.C. Negi (PW 20) and Gangbir Singh (PW. 21) were the investigating officers. The accused produced 6 witnesses including Bishan Dass (DW. 1) the Halwai of a shop which was just in front of the place where the accused was arrested; Diwan Chand (DW. 2) the petrol dealer, and Suti Parkash (DW. 4). 5. The learned Special Judge believed the prosecution evidence against Khembu Ram accused, although he disbelieved the same against Manmohan Lal Sub-Inspector. Accordingly Khembu Ram was convicted and sentenced in the manner stated above. Manmohan Lal, Sub-Inspector, was acquitted. Khembu Ram has felt aggrieved of the decision and has preferred this appeal. 6. At this stage, it would be appropriate to point out some facts which are admitted both by the prosecution and the defence. It is not denied that Khushi Ram (PW. 16) was a bad character and also that he was history sheeter. Both B.C. Negi (PW. 20) and Gangbir Singh, S.P. (PW. 21) asserted this fact that he was already arrested for theft and for keeping stolen property by the police of Jawalamukhi. Similarly a case of theft was registered against him under Section 457 and 380 of the Indian Penal Code at P.S. Shahpur. This case was investigated by Khembu Ram and he arrested Khushi Ram on 7-9-1969. It is also admitted that the accused brought Khushi Ram handcuffed upto his house at Haripur and the house search took place on 10-9-1969. Khushi Ram was also brought handcuffed by the accused to the Court on several dates when remand orders were taken. However, on 12-9-1969 Khushi Ram was bailed out. It is also admitted fact that Ram Dass (PW. 10) did go and meet the Sub-Inspector at P.S. Shahpur. According to Ram Dass, the Sub-Inspector had demanded bribe. However, according to the Sub-Inspector, Ram Dass came to threaten him that he was an IAS officer and would bring him to grief if Khushi Ram was not released. Ram Dass, however, admitted that he was only appearing in the IAS competition and was not yet employed as such. According to Ram Dass, the Sub-Inspector had demanded bribe. However, according to the Sub-Inspector, Ram Dass came to threaten him that he was an IAS officer and would bring him to grief if Khushi Ram was not released. Ram Dass, however, admitted that he was only appearing in the IAS competition and was not yet employed as such. It is again admitted by the defence that the accused Khembu Ram did come to Dharamsala on 15-9-1969 and at about 4 P.M. Ram Dass met him and planted the money in his pocket. Thereafter Khembu Ram was arrested and the said money was recovered from his pocket. 7. With these facts alleged by the prosecution and either admitted or denied by the defence, the material point which decided the case was, as to whether any gratification other than legal remuneration was accepted or obtained by the accused-appellant, or as to whether the money was actually planted upon him at the instance of Ram Dass (PW. 10) in the manner stated by the defence. I can at once say that the learned Special Judge misdirected himself, at the very outset, when he placed the initial burden upon the appellant, of disproving that he accepted or obtained the gratification which was other than legal remuneration. The learned Special Judge stated in the following terms :- "Now we have to see how far the plea of the accused is believable. For this we have to advert ourselves to the defence evidence adduced by the accused, because the recovery of the money from the person of Khembu Ram accused which recovery is not denied by him, gives rise to a presumption under Section 4 of the Prevention of Corruption Act that he was recipient of this amount as illegal gratification other than legal remuneration." It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden is successfully discharged by the prosecution, that the burden of proving the defence shifts upon the accused and a presumption would arise under Section 4(1) of the Prevention of Corruption Act, 1947. The accused would have to discharge this burden by disproving that he accepted or obtained the amount as gratification other than legal remuneration. The accused would have to discharge this burden by disproving that he accepted or obtained the amount as gratification other than legal remuneration. Therefore, the prosecution evidence was first required to be seen by the learned Special Judge. But what he actually did, was that he scanned through the evidence of defence as if the initial burden of proving even this that the accused had accepted or obtained the money was upon the defence. This inverted process of consideration of evidence, clearly resulted in misappreciation of the entire case. In C.I. Emden v. State of Uttar Pradesh (AIR 1960 SC 548) it was observed that the prosecution has to prove before asking the Court to raise a presumption under Section 4 of the Prevention of Corruption Act, that the accused person has received a gratification other than legal remuneration. If it is shown that the accused did receive the stated amount and that the said amount was not legal remuneration then the condition for raising the presumption as prescribed by this section is satisfied. In V.D. Jhingan v. State of Uttar Pradesh (AIR 1966 SC 1762), the following observation was made :- "To raise the presumption under Section 4(1) Prevention of Corruption Act, the prosecution has to prove that the accused has received "gratification other than legal remuneration". When it is shown that the accused has received a certain sum of money which was not his legal remuneration, the condition prescribed by the section is satisfied and the presumption must be raised. Further the mere receipt of "money" is sufficient to raise the presumption." In the instant case the accused never admitted that he received, the money. In Delhi Administration, Delhi v. S.P. Kohli (1969) Delhi LT 632) the same principle was followed. It was held that in a trial for an offence punishable under Section 161 Indian Penal Code the initial burden of proving that the accused had received a certain sum of money which was not his legal remuneration, lies on the prosecution. The proposition was more elaborately stated in Kans Raj v. The State (1970-72 Pun LR 531). The following observation may be noted :- The offence of bribe could be held to have been committed only if the receiver of the bribe intentionally accepts the amount offered as such. The proposition was more elaborately stated in Kans Raj v. The State (1970-72 Pun LR 531). The following observation may be noted :- The offence of bribe could be held to have been committed only if the receiver of the bribe intentionally accepts the amount offered as such. Even if the giver of the bribe offers the bribe or leaves the amount of bribe to be given in front of the alleged receiver but the receiver does not consciously and deliberately receive the amount and has no intention to receive the amount, the offence of acceptance of bribe could not be held to have been committed." It is, therefore, abundantly clear that it was the duty of the prosecution to prove that the amount was accepted or obtained by the appellant. For this, the evidence of the prosecution was required to be considered first and only if such evidence was found above the mark, that a presumption could be raised under Section 4(1) of the Prevention of Corruption Act, 1947. The learned Special Judge rather considered the evidence of defence at first and since he found certain shortcomings in such evidence he concluded that the money was accepted or obtained by the appellant and thereby raised the presumption against him. This was entirely a faulty reasoning which has resulted in miscarriage of justice. 8. The only witness on whom hinged the prosecution case was Ram Dass (PW. 10). He was decidedly an aggrieved person. Khushi Ram was humiliated and degraded by the appellant. He was brought handcuffed from the Police Station upto his house. As narrated by Khushi Ram (PW. 16), abominable treatment was given to him at the Police Station. It is, therefore, apparent that Ram Dass was an aggrieved person. He was the man who initiated the trap and was certainly a partisan witness. Similarly S.N. Verma (PW. 2), K.C. Sharma (PW. 3) and Gangbir Singh, S.P. (PW. 21) were also partisan witnesses of the trap. Upon Ram Dass (PW. 10) was cast the responsibility of giving bribe to the appellant. He was naturally eager to give the bribe and, as the learned counsel for the defence stated, he planted money upon somebody so that he might not be understood to have lodged a false complaint. With this mental state attributed to Ram Dass (PW. 10), we have to consider his statement. He was naturally eager to give the bribe and, as the learned counsel for the defence stated, he planted money upon somebody so that he might not be understood to have lodged a false complaint. With this mental state attributed to Ram Dass (PW. 10), we have to consider his statement. It is decided that some corroboration of his statement was required. The official witnesses of the trap, no doubt, committed the mistake of not setting up a shadow-witness upon Ram Dass. It was not difficult to have deputed someone to witness the actual giving of the bribe which was admittedly given at a public place. This shadow-witness is significantly missing in this case. It is fairly well settled that trap witnesses being partisan in nature do require corroboration before implicit reliance can be placed upon them. In State of Bihar v. Basawan Singh, (AIR 1958 SC 500), the following rule of caution was laid down :- "The correct rule is this : if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged their evidence must be treated as the evidence of accomplices is treated, if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness he cannot claim any higher status and must be treated as any other interested witness." In another Supreme Court case Bhanuprasad Hariprasad v. State of Gujarat (1968) Cri AR 144 (SC) : (AIR 1968 SC 1323) similar corroboration was sought for. In the case of partisan witnesses, the corroboration that may be looked for is a corroboration in a general way although material corroboration is not required as in the case of evidence of accomplices. We have therefore to consider as to whether implicit reliance could be placed upon the testimony of Ram Dass (P.W. 10). In the case of partisan witnesses, the corroboration that may be looked for is a corroboration in a general way although material corroboration is not required as in the case of evidence of accomplices. We have therefore to consider as to whether implicit reliance could be placed upon the testimony of Ram Dass (P.W. 10). I can at once say, after close examination of the record of the case, that there is so much circumstantial evidence against him that this witness could not be stated to have inspired confidence. The foremost feature concerning him is, that despite cogent evidence that he knew Khembu Ram from before or at any rate knew him to be the Head Constable, he did not name him at any relevant stage as the person who was demanding bribe. The earliest version which we obtain from him is the discussion which he had with Shri Bhagat Ram, Advocate. He did not name Khembu Ram, nor did he state that any Havaldar or Head Constable of P.S. Shahpur was demanding bribe. Rather he stated that the Thanedar of Shahpur was demanding bribe. The witness Bhagat Ram (P.W. 1) specifically stated that Ram Dass did not complain against Khembu Ram, Havaldar, Verma (P.W. 2) even asked him to name the person who was demanding bribe and Ram Dass could not name him. He said that some Police official was demanding money. Chandi Mal (P.W. 5) who accompanied Khushi Ram to the Police Station, knew Khembu Ram which he very much affirmed. Presumably he must have told his name to Khushi Ram and Ram Dass. Ram Dass (P.W. 10) surprisingly stated that Khembu Ram told before him that he already knew him. Still Ram Dass did not enquire as to who he was and what was his name. It was Khembu Ram who was investigating the case. He arrested Khushi Ram, brought, him handcuffed upto his house, made the house search, and accompanied him all along during the course of remand orders. The Matour talk as well as the Rest House talk took place with Khembu Ram. Similarly repeated demands of bribe are stated to have been made by Khembu Ram in the presence of Ram Dass and Khushi Ram. The Matour talk as well as the Rest House talk took place with Khembu Ram. Similarly repeated demands of bribe are stated to have been made by Khembu Ram in the presence of Ram Dass and Khushi Ram. In such a situation, it is impossible to believe that Ram Dass could not come to know the name of Khembu Ram or at any rate did not know that he was Havaldar, which he could distinguish from his uniform, he being an educated person. In such a situation, the absence of the name of Khembu Ram or even his designation in the F.I.R. (Ex. PA) is rather significant. It may be correct to say, as the defence case is, that some other Constable was demanding the bribe and because that Constable did not arrive as he got scent of the situation, Khembu Ram was made a victim. Gulzari Lal (P.W. 12) who was present with Ram Dass on 15-9-1969, admitted before the Police (Ex. DE) that Ram Dass had even named that Khembu Ram was to come and receive the bribe. Raj Kumar (PW. 15) the own brother of Ram Dass, stated before the Police (Ex. DF) that he had already learnt that the Havaldar was demanding the bribe. Khushi Ram (P.W. 16) asserted that Khembu Ram was in uniform at all relevant occasions. All this evidence decidedly indicated that Ram Dass knew Khembu Ram and it was rather necessary for him to have named him before Bhagat Ram (P.W. 1) and also in the F.I.R. (Ex. PA). 8A. There are definite land marks in the prosecution story which need be considered separately. The talks that took place at the Police Station between 7th and 9th September, 1969 are not stated by Ram Dass in his version before the Police. It appears, then that embellishments were made and things were so shaped that something serious could be inferred. The second significant talk which is also a land mark in the prosecution story, took place at Matour on 10-9-1969. Ramji Dass (PW. 19) Foot-Constable had accompanied Khembu Ram during the course of the alleged talk at Matour. This witness denied that any talk of the nature took place in his presence at Matour. This is rather significant and he makes the talk at Matour highly suspicious. In fact, there was no occasion for such a talk. Ramji Dass (PW. 19) Foot-Constable had accompanied Khembu Ram during the course of the alleged talk at Matour. This witness denied that any talk of the nature took place in his presence at Matour. This is rather significant and he makes the talk at Matour highly suspicious. In fact, there was no occasion for such a talk. Khembu Ram was already taking Khushi Ram to the Police Station. There was no urgency and the talk could take place at the Police Station itself. Why should the Sub-Inspector take the risk of opening the bribe talk at the bus-stand of Matour where so many persons must be present ? Khushi Ram did not state a word about these talks before the Police during investigation stage. Besides all this, the learned Special Judge disbelieved this talk totally, as he exonerated the Sub-Inspector Manmohan Lal. Therefore, the Matour talk cannot be believed to have taken place. 9. The third in the series of talk, took place at the Rest House of Shahpur on 14-9-1969. This talk was tape-recorded and it is apparent the tape-recording could not be deciphered and is supposed to be a meaningless jargon. The tape recorded talk is, no doubt, mentioned in the F.I.R. (Ex. PA), but the manner in which the recorded tape was recovered and kept during the course of investigation, are highly suspicious. The tape was not recovered on 15-9-1969 but was recovered on 16-9-1969. Ram Dass (PW. 10) stated that the seal of the packet containing the recorded tape was given to a person whom he does not know. Ram Lal (PW. 6), however, stated that the seal was given to him. Negi (PW. 20) rather stated that the tape record was played during investigation, but he does not know to whom the seal was given afterwards. Gangbir Singh (PW. 21) stated that the seal of the packet was given to Ram Dass himself. If Ram Dass kept the sealed packet with him, there was no difficulty to replace the tape. The learned counsel for the defence rightly pointed out that the tape recording was mentioned in the F.I.R. and therefore some tape was required to be introduced in place of the original tape which might have recorded the talk of Ram Dass with some other constable of that Police Station. The learned counsel for the defence rightly pointed out that the tape recording was mentioned in the F.I.R. and therefore some tape was required to be introduced in place of the original tape which might have recorded the talk of Ram Dass with some other constable of that Police Station. Because Khembu Ram was ultimately arrested, and the recorded talk would not have disclosed his voice, another tape was introduced to fulfil the requirement of the F.I.R. The suggestion may or may not be correct, but a high sense of suspicion definitely arises because the recorded tape was neither promptly recovered, nor properly kept in a sealed cover. Ram Singh (PW. 9) was officiating Chowkidar of the Rest House on that day. He did not support the prosecution case. He did not state that at the relevant time Ram Dass or Khushi Ram came to that place, or had talk with the accused. Above all, Khushi Ram (PW. 16) himself forgot to tell before the Court about the Rest House talk, in the first instance. However, later on he remembered the talk and corrected himself, Khushi Ram or Ram Dass did not state about the Rest House talk before the Police during investigation. This is another significant omission which should not be missed, as it is a circumstance in favour of the accused. During the course of the alleged talks, it is revealed that the money was proposed to be paid on 15-9-1969 at the Police Station itself. Still the accused insisted that it should be paid at Dharamsala on 15-9-1969. It is rather strange conduct that the accused had chosen to accept bribe at a crowded place at the bus-stand of Dharamsala when he was being offered bribe at the Police Station itself. These are highly suspicious circumstances attached to the Rest House talk. 10. The last land mark in the prosecution story relates to the talks which took place on 15-9-1969. If the Rest House talk is disbelieved, there is no evidence to indicate that the bribe giving was at all settled for 15-9-1969 at Dharamsala. In that case, how and why Ram Dass reached Dharamsala, and how and why he could lay the trap ? According to prosecution, the accused met Ram Dass at three occasions before the final occasion when the bribe was given. In that case, how and why Ram Dass reached Dharamsala, and how and why he could lay the trap ? According to prosecution, the accused met Ram Dass at three occasions before the final occasion when the bribe was given. At first he met him at 10 A.M. then at 12 A.M. and then at 2 P.M. Every time Ram Dass used to dupe the accused that someone was coming with the money and, according to him, he was postponing the event because the trap arrangement could not be made earlier There is every probability of the accused having got scent of the event and at any rate his suspicion should have been aroused and he would not have gone to take the bribe in such a situation. While Ram Dass was having such talks, Gulzari Lal (PW. 12) used to remain with him and there is again a suspicion that the accused would open the talk of bribe before a stranger, as he was running a great risk for himself. After the bribe was taken the accused could have easily gone straight for the bus which, according to Ram Dass, was ready for departure. Instead, at the request of Ram Dass, he postponed the idea of going and easily walked towards the officers who were waiting for him. This sounds rather strange and cannot be accepted without a pinch of suspicion. Above all, there is absolutely no reason why the defence witnesses Bishan Dass (DW. 1) and Diwan Chand (DW. 2) should not be believed in this connection. Both of these witnesses had a very strong reason to be present at that time, Bishan Dass (DW 1) is the Halwai and the site plan shows that his shop is just in front of the petrol pump, and the accused was arrested in between his shop and the petrol pump. Diwan Chand (DW. 2) is the dealer of the petrol pump. It is admitted that the recovery of money took place at or near the petrol pump. The writing work was done inside the very room of the petrol pump. Thus both these witnesses were naturally present at that time. Bishan Dass was even quoted by the prosecution to be their own witness. Later on he was given up. It is admitted that the recovery of money took place at or near the petrol pump. The writing work was done inside the very room of the petrol pump. Thus both these witnesses were naturally present at that time. Bishan Dass was even quoted by the prosecution to be their own witness. Later on he was given up. These witnesses have stated that the accused was tipsy which they could certainly detect by his movements and that Ram Dass was dragging him by putting his hand across his waist. The learned special Judge disbelieved these witnesses because, according to him, they could have seen the actual planting of the money. To my mind that was not a circumstance which rendered their version incredible. They may or may not have seen the planting of the money, but the fact remains that they did see the strugle between, the accused and Ram Dass and in that struggle there is every likelihood that the money was planted. The learned Special Judge then observes that the currency notes having been in a bundle shape, could not have been inserted easily inside the pant pocket of the appellant. This was again a circumstance which could not be relied upon by the learned Judge. The prosecution never cared to procure the pant itself so that it could be known as in what was the shape of the pocket and as to whether it was easy or difficult to insert the bundle of currency notes in such pocket. For this lacuna on the pact of prosecution, the benefit should have been given to the appellant. It was stated, and almost proved by defence witnesses, that the appellant had taken liquor and was tipsy at that time. About this the prosecution could not successfully deny the defence Suti Parkash (DW. 4) no doubt stated that the accused and he had taken liquor together, Gangbir Singh (PW. 21) could not deny that the accused was tipsy. He did not care to smell the mouth of the accused. He could have very well stated that the accused was not tipsy, which fact could easily be known to anybody who happened to see the condition of the accused. Ram Dass (PW. 10) similarly stated that he did not know if the accused had taken the liquor as he did not smell him. This again is a non-committal statement. He could have very well stated that the accused was not tipsy, which fact could easily be known to anybody who happened to see the condition of the accused. Ram Dass (PW. 10) similarly stated that he did not know if the accused had taken the liquor as he did not smell him. This again is a non-committal statement. Therefore, the suggestion made by the defence that the accused had taken liquor and was tipsy at that time, could not be explicitly denied by the prosecution. 11. In the site-plan, the investigating officer did not care to show the actual spot where the bribe was given. A shadow witness was not planted who could corroborate Ram Dass. The same set of witnesses were admittedly disbelieved so far as the case of Manmohan Lal, Sub-Inspector, was concerned. Thus, there is every indication that the prosecution witnesses have not spoken the whole truth in the matter. There is a room for doubt and the defence version could even be correct. The prosecution has failed to discharge the initial burden of proving that the money was accepted or obtained by the appellant as gratification other than legal remuneration. The prosecution evidence was certainly required to be assessed beyond the realm of reasonable doubt for discharging the initial burden that lay upon the prosecution and if such evidence was not forthcoming, the appellant would be given the benefit of the same. It is, therefore, evident that the presumption under Section 4(1) of the Prevention of Corruption Act. 1947 did not arise at all. 12. There is a valuable observation in the State v. Minaketan Patnaik (AIR 1952 Orissa 267) which is in these terms :- "If therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established. The Court must be satisfied not only that the circumstances are consistent with the conclusion that the criminal act was committed by the accused, but also that the proved facts are such as to be inconsistent with any other rational conclusion than that the accused is a guilty person." A similar situation appears to arise in the instant case and the benefit will go to the appellant. No corroboration can be procured for the statement of Ram Dass. No corroboration can be procured for the statement of Ram Dass. In such situations, corroboration of complainants version is a necessity. In Lachman Dass v. State of Punjab. AIR 1970 SC 450 such a necessity was felt and the observation was :- "The conviction was based on the sole evidence of the complainant who had reason to harm the accused, having reduced the bills substantially, and as there was nothing to show why the executive officer should give false evidence in order to extricate the accused, conviction of the accused should be set aside. Circumstantial and documentary evidence created room for doubt that the defence version was probably true and the statement of the complainant could not be accepted without corroboration." In the instant case, why should Bishan Dass (DW. 1) and Diwan Chand (DW. 2) give false evidence to extricate the accused ? When the evidence is obviously disbelieved on material points, the prosecution case receives a jolt and cannot stand. It will not be safe to rely on the evidence of such witnesses when they are to be disbelieved on material points incriminating the appellant and obviously have been disbelieved on all the points incriminating Manmohan Lal. It is elementary that where the prosecution has a definite or positive case it must prove the whole of the case (See Bageshwar Misser v. Mt. Khandari Kuer and the State, AIR 1970 Pat 20). 13. The up-shot of all that I have stated above is, that the prosecution case is bristling with improbabilities and it is unsafe to record a finding of conviction. 14. The appeal is allowed and the appellant is acquitted of the charges under Sections 161 Indian Penal Code and 5(2) of the Prevention of Corruption Act, 1947. He is on bail and his bonds are cancelled. Appeal allowed