G.M. LODHA, J.—This is a typical case of "trap within a trap" 2. The appeal is directed against the judgment of Special Judge. Jaipur City dated 29th November, 1971 convicting the accused appellant Tej Singh under Section 161 I.P.C. and section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947 for accepting bribe of Rs.20/- from a railway employee Phool Singh. He has been sentenced to undergo simple imprisonment for one year and a fine of Rs. 100/- on each count. 3. The Speciel Judge acquitted Tejsingh under Sec. 5(1)(a) of the Prevention of Corruption Act 1947 for the charge that he was habitual in accepting bribe from the railway employees, 15 instances of which were made subject matter of the charge. 4. An interesting feature of this case is that the prosecution story commences as well as ands with the star witness Phool Singh P.W. 1 who happens to be a railway employee working under accused Tej Singh and has been proved to be a companion of the accused Tej Singh in the alleged vice of drinking liquor of and on. In other words both the complainant who invited Special Police Establishment Officers for this trap and the accused who had to face this prosecution and conviction on the basis of the trap, planted by his own companion, are drunkards. This aspect of the case shall be dealt with at later stage in details. 5. The prosecation story in short is that P.W. 1 Phool Singh, a Khalasi in Station Masters Officer Gangapur City went to Jaipur and submitted an application Ex.P.l to the Superintendent of Police, Special police Establishment, Jaipur that he was working under the accused who was Correspondence Clerk in the office of Station Master, Gangapur City. Phool Singh alleged that Tej Singh was a corrupt official and a drunkard as he is used to excessive drinking and he is habitual of accepting bribe of Rs. 10/-to 15/-from all casual labourers (non approved candidates) for retaining them in service. Phool Singh made a grievance that he was also being compelld to pay Rs. 20/-for continuing in service, being arrears of bribe for April and May, 1967, failing which he was threatened to be chucked off from service. Phool Singh volunteered to get Tej Singh arrested and caught re-handed in a trap. 6. Phool Singh made a grievance that he was also being compelld to pay Rs. 20/-for continuing in service, being arrears of bribe for April and May, 1967, failing which he was threatened to be chucked off from service. Phool Singh volunteered to get Tej Singh arrested and caught re-handed in a trap. 6. It is alleged that on this the Superintendent of Police direated Shir Mahendrasingh and Shir P.D. Ajmera to lay a trap but somehow the accused become conciseds and refused to become a victim of the trap. As the accused did not accept the bribe, the trap could not succeed at the instance of Mahendra Singh and P.D. Ajmera. 7. However, Phool Singh again approached the Superintendent of Police on 13.6.1967 and in the second time Mr. P.N. Shukla and Mr. Karansingh were deputed to organise a trap. In pursuance of it, they reached the Dak Bungalow of Gangapur city on 14.6.67 in the night. On 14-6-67 Phool Singh moved another application Ex.P.2 and volunteered that Tej Singh be arrested in a trap. The police party called Bajrang Lal and Shiv Pratap to become trap witnesses. It is said that the accused did not attend office on 15-6-67 as he indulged in excessive drinks of liquor and there fore, remained lying in bed at his house. Neither the police party nor Shri Phool Singh wanted to leave the matter there having failed twice but continued their efforts on 16-6-67, Phoolsingh met the Police Officers at Dak Bungalow at 9 A.M. on 16-6-67, two notes of Rs. 10/- each were delivered to him after which application of Phenol-phthalein ponder to them. An important feature of this case would assume great importance when I discuss the evidence later on, was that since Phool Singh was repeatedly trying to get Tej Singh arrested in the trap, the police authorities called Bajrang Lal to remain with him through out as an independent witness during the trap and Bajrang Lal was instructed to follow Shri Phool Singh to hear conversation between Phool Singh and Tej Singh and watch the passing over of the tainted notes to Tej Singh and then give a signal to the trap officers and other motbirs Shiv Pratap who were supposed to remain at a little distance from the place of the trap at the time of passing over the bribe amount to the accused. 8. 8. The prosecution case then proceeds to allege that Phool Singh and Bajarang Lal went ahead and the raiding party along with other witness Shiv Pratap followed them at a safe distance and took position near the Station Masters office at about 10 a.m. Phool Singh went inside the office and came out at about 11.30 a.m. with Tej Singh. Timing so given by the prosecution from 9 a.m. to 11.30 a.m. would also assume importance when the evidence in the cause is discussed at a later stage in this judgment,. It is then alleged that at about 11.30 a.m. Tej Singh Phool Singh came out from the Railway Office of Station Master and they talked to each other on the step of the open Verandah. Then they proceeded towards the railway quarter on the metalled road and then they reached towards the back side of Ramesh-ki-hotel near the boundary of Sales-Tax Office and then they stopped near a tree at about 12 noon where on adamant by a greater of hard Phool Singh gave Rs. 20/- to Tej Singh as bribe which was kept in his left pocket of the pant and both of them then reached the liquor shop nears. It was at the liquor shop that Tej Singh and Phool Singh were stopped by Karan Singh who disclosed his identity as the police officer and then recovered two note of Rs. 10/— each, the amount of bribe alleged to have been given by Phool Singh to Tej Singh earlier at that very time. 9. It is not necessary to mention in details the later story of the prosecution because that would not be material for deciding this appeal. 10. The learned Sessions Judge has held that the story of the allegation that the accused took bribe or every occasions from the non-approved candidates for continuing in service in railway, 15 instances of which were given in the charge-sheet, was not proved and he has given detailed reasons for it. Since the accused has been acquitted on that change by the Special Judge. It is not necessary to mention in details the various reasons which the learned Judge has given for acquitting the accused and disbelieving the prosecution case. 11. The crucial point to be considered in this case is whether the finding of the Special Court that the accused took Rs. It is not necessary to mention in details the various reasons which the learned Judge has given for acquitting the accused and disbelieving the prosecution case. 11. The crucial point to be considered in this case is whether the finding of the Special Court that the accused took Rs. 20/- as bribe from Tej Singh for continuing him in service while acting as a clerk in the railway, is correct or requires to be set aside. Before I proceed to consider the evidence produced, the findings of the lower court and the effect of infirmities pointed out by the accused, it would be necessary to discuss the law about "burden of proof" in such "trap" cases, as Mr. Soral has laid much stress on presumption under section 4 of the Prevention of Corruption Act and Mr. Bafna with equal vehemence has submitted that "trap witness" are most untrusturety witnesses. 12. Mr. Soral has submitted that since it is proved that Rs. 20/- were found, on the person of the accused, persumption under section 4 of the Prevention of Corruption Act should be drawn and the accused should be convicted on that basis. Bafna with equal vehemence has submitted that "trap witness" are most untrusturety witnesses. 12. Mr. Soral has submitted that since it is proved that Rs. 20/- were found, on the person of the accused, persumption under section 4 of the Prevention of Corruption Act should be drawn and the accused should be convicted on that basis. Section 4 reads as under;— "S.4- Presumption where Public Servant accepts gratification other than legal remuneration;—(1) Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code (or of an offence referred to in clause (a) or clause (b) of Sub-section (1) of Section 5 of this Act Punishable under subsection 5 of this Act punishable under sub-section (2) thereof), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing form any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may bo, as a motive or reward such as is mentioned in the said section 161, or as the case may be, without consideration or for a consideration which he knows to be inadequate (2) where in any trial of an offence punishable under Section 165-A of the Indian Penal Code (or under clause (ii) of sub-section (3) of section 5 of this Act, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or-reward such as is mentioned in section 161 of the Indian Penal Code or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Nowithstanding any thing contained in subsection (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-section, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn." 13. I am of the opinion that inspite of the enactment of section 4 of the Prevention of Corruption Act, so far as the receipt or acceptance or obtaining of the money is concerned, the burden lies on the prosecution and it continues to be as heavy as it was earlier. The basic principle of criminal jurisprudence that the prosecution is required to prove its allegations beyond all reasonable doubt and the benefit of doubt goes to the accused, continues to hold the field inspite of section 4 so far as the basic fact of acceptance of obtaining of gratification is concerned. It applied to section 161 I.P.C. and section 5 of Prevention of Corruption Act equally and with the same force. 14. It may be pointed out that so far as the modern case law is concerned, the Privy Council pointed out as early as in Wollmington, vs. The Director of Public Prosecutions (1) that the onus of proof always lies on the prosecution. Lord Viscount Sankey Justice while acquitting the accused Woolmington from the charge of murder of his wife, observed as under :— "Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoners guilt subject to what I have already said a to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecation has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." Rex vs. Davies, 29 Times L.R. 350, 8 Cr. App. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." Rex vs. Davies, 29 Times L.R. 350, 8 Cr. App. R. 21 were referred to and relied upon by Viacount Sankey J. in this case and reference was also made to Sir Michael Foster (Fosers Crown Law) authority wherein the benefit of doubt was enumerated. Finlay Justice in his directions to the jury in a murder case said, "The case for the prosecution is deliberate shooting. The defence, is not guilty of murder. They (The prosecution)" prove the killing and in the absence of explanation that is murder. The defence say excusable, because accidental,. Consider whether you entertain the slightest doubt that this was a deliberate killing. If you have no doubt, it is your duty to convict......If the result of a dispassionate survey is to leave a reasonable doubt in your minds, then your duty as well as your pleasure is to acquit. It is for the prosecution to satisfy the jury on all the evidence that the prisoner is not an innocent man, but a guilty man. They must take the whole of the evidence into consideration and then it is not for the prisoner to say: "My explanation is such that it must satisfy you". It is enough for him if he says: This is my explanation and if the jury on considering it are left in a reasonable doubt. Then it is their duty to acquit the prisoner. "Where, a prima feci case having been made against him, the defendant offers an explanation, the jury must be directed that the onus of proof of guilt is still on the prosecution, and that, if on the whole evidence they are in doubt, they should acquit" Roscoe, Criminal evidence. (10) This is the result of numerous decisions. "Rex v. Stoddart(1909)2Cr. App. R.217, 244, Res v. Davies (1913)29 Times L.R. 350, 8 Cr. App. R.211, Rex. vs. Abramovitch, (1914) 31 Times, L.R. 88, Rex vs. Aubrey, (1915)11 Cr. App. R. 182, Rex vs. Grinberg (1917) 33 Times L.R. 428, Rex. Sanders (1919) 14Cr. App. R.ll, Lawrence vs. The King. (1933) A.C. 699, 706." 15. "Rex v. Stoddart(1909)2Cr. App. R.217, 244, Res v. Davies (1913)29 Times L.R. 350, 8 Cr. App. R.211, Rex. vs. Abramovitch, (1914) 31 Times, L.R. 88, Rex vs. Aubrey, (1915)11 Cr. App. R. 182, Rex vs. Grinberg (1917) 33 Times L.R. 428, Rex. Sanders (1919) 14Cr. App. R.ll, Lawrence vs. The King. (1933) A.C. 699, 706." 15. The above law in respect of the benefit of doubt, has not been enunciated for the first time by the English Judges and Jurists for our country. I had earlier also pointed out in "Mana vs. State" while discussing the "right of Private defence" that Manu, Brahaspati and Kautlyan, had not only recognised it but put it on very high Redestal, then what English Law makes have put it U/S. 97 to 103 I.P.C. Though it is mainly the work of Research Scholars or Jurists, and hardly of Judges, to trace the origin, but the trace of its origin to Ved, Purans, Sruti, Smritis, and Dharamshastras of our country reinforces our faith in this part of Jurisprudence, making task of interpretation easy and interesting. Even several centuries before Christ, Dharmasastra laid down the same principle that benefit of doubt should always go to the accused. Haradattas Com. on Apastamban-dharma-sutra published by Halasyatha Sastri, contains the following Sanskrit verse, ^^u p lUnsgs n.M dq;kZr~^^ the king should not punish when there is a doubt. 16. The famous Author P.V. Kane has extracted the above principle of benefit of doubt, from the Dharamasastra in his Treaties History of Dharamasastra page 360 Vol. III. Thus this principle of benefit of doubt was in vogue in early time but was published in the above Treaties of Dharamasastras before 300 to 66 B.C. 17. The principle was well known even in the legal procedure for doing justice in Kautilya era. Kautilya in chapter VIII of his book insisted on production of conclusive evidence as to the guilt and points out the dangers of relying on Appearances. According to Dharmasastras, the general principle was laid down as early as in Apastamba to the effect that no one should be punished on mere suspicion and that the King should pass sentence only after full investigation by means of witnesses or by Ordeal. According to Dharmasastras, the general principle was laid down as early as in Apastamba to the effect that no one should be punished on mere suspicion and that the King should pass sentence only after full investigation by means of witnesses or by Ordeal. ^^¼u p lUnsgs n.M dq;kZrA lqfof/kr fof/kRo nso izR;sUg% jktk n.Mk; izfr inq;ksr½^^ Kautilyas doctrine of conclusive evidence is found in Samaptkarnam Niyamyet ^^¼lekIr dj.ke~ fu;uesr½^^ In the trap cases of bribery the above principle of the burden of proof, has not been in any manner altered except to the extent of the legal presumption about the motive, mentioned in section 4 of the Prevention of Corruption Act. Even there the burden of proof which has been shifted on the accused under section 4 will stand discharged if he establishes his case by preponderance of probability as is done by a party in civil proceedings. 18. In V.D. Jhingan vs. State of U.P. (2) it was observed :— "The burden of proof lying upon the accused under S.4 (i) of the Prevention of Corruption Act will be satisfied if he establishes his case by a preponderance of probability as is done by a party in civil proceedings. It is not necessary that he should establish his case by the test of proof beyond a reasonable doubt." 19. In M.P. Gupta vs. State of Rajasthan (3), it has been held that the accused can establish his case by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt. 20. Again in Trilok Chand vs. State of Delhi (4), it has been held that the accused may rebut the presumption by showing a mere preponderance of probability in his favour: it is not necessary for him to establish his case beyond a reasonable doubt. 21. Mr. Bafna has submitted that the evidence of trap witnesses in this case should not be believed as they lack independent corroboration. He has relied upon the observations of the Supreme Court in the following cases. 22. In Shiv Bahadur Singh vs. State of Vindh. Pra. 21. Mr. Bafna has submitted that the evidence of trap witnesses in this case should not be believed as they lack independent corroboration. He has relied upon the observations of the Supreme Court in the following cases. 22. In Shiv Bahadur Singh vs. State of Vindh. Pra. (5), it was observed :— "It must be said, however, that neither Nagindas nor Pannalal nor as a matter of fact Sir Chinubhai, their principal was a willing party to the giving of the bribe to the Appellant No. 1 and were only actuated with the motive of trapping could not be treated as the evidence of accomplices. Their evidence was nevertheless the evidence of Partisan witnesses who were out to entrap the Appellant No. 1. A perusal of the evidence of Nagindas and Sir Chinubhai leaves in the mind the impression that they were not witnesses whose evidence could be taken at its face value.!" In State of Bihar vs. Baswan Singh (6), it was observed : "Moreover, however, inexpedient it may be to employ Magistrates as trap witnesses their evidence has to be judged by the same standard as the evidence of other partisan or interested witnesses, and the inexpediency of employing Magistrates as trap witnesses cannot be exalted into an inflexible rule of total rejection of their evidence in the absence of independent corroboration. The learned Solicitor-General referred in the course of his arguments to the difficulty of detecting corruption cases and of securing conviction in such cases. We do not think that such a consideration should influence the mind of a Judge." "The correction rule is this : if any of the witnesses are accomplices who are Patrices criminals 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 him self 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 Major E.G. Barsay vs. State of Bombay (7), it was observed : "We are definitely of opinion that both the courts had a approached the evidence of Lawrence from a correct stand point. Though Lawrence was not an approver, he was certainly an interested witness in the sense that he was interested to see that the trap laid by him succeeded. He could at least be equated with a partisan witness and it would not be admissible to rely upon such evidence without corroboration. It would be equally clear that his evidence was not a tainted one, but it would only make a difference in the degree of corroboration required rather than the necessity for it." In Ganpat Singh vs. State (8) it was observed : "As a result of the discussion made above, the true legal position with respect to a trap witness seems to be somewhat like this. A trap witness is really not an accomplice because he is not a willing party to the giving of a bribe. He is, however, a highly partisan witness and, therefore, his evidence must be scrutinised with very considerable care and caution. Further, as a matter of substantive law there would seem to be no rule which stands in the way of a conviction being found on the evidence of such a witness in a proper case, but the Courts, as a matter of prudence, should normally and ordinarily look for material corroboration of the evidence of such a witness from independent source though it seems to me that perhaps it would be open to a Court to depart from this course for valid reasons to be stated by it in an exceptional case. Again, in seeking corroboration, of the evidence of such a witness the Courts need not look for corroboration of every part of detail of the prosecution story, and it would be sufficient if corroboration is forthcoming as to the material circumstance of the crime and the identity of the accused in relation thereof." In R.P. Arora vs. State of Punjab (9), it was observed : "It must be remembered that both Joginder Singh and Balbir Singh P.ws. were interested and partisan witnesses. were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person." 23. Dealing with the question of burden of proof Sarkar, "Evidence 12th Edition page 33 has made the following summary: "Rules of proof in criminal cases. When dealing with the serious question of the guilt or innocence of persons charged with crime, the following general rules have been laid down for the guidance of tribunals:—(1) The onus of proving every-thing essential to the establishment of the charge against the accused, lies on the prosecutor (see post notes under Ss. 101-104 "Criminal cases"): (2) The evidence must be such as to exclude to a moral certainly every reasonable doubt of the guilt of the accused: (3) In matters of doubt it is Shaffer to acquit than to condemn: for it is better that several guilty persons should escape than that one innocent person suffer; (4) There must be clear and unequivocal proof of the corpus delicti; (5) The hypothesis of delinquency should be consistent with all the facts proved (Best)." 24. Witmore in his Treatise of Evidence Vol. 9 third Edition page 316 observed: "Reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge... The evidence must establish the truth of the fact to a reasonable and moral certainty a certainty that convinces and directs the understanding, and satisfies the reason and judgment...This we take to be proof beyond a reasonable doubt." "The maxim of law is. says that writer that it is better that 99 (i. e. and indefinite number) offenders shall escape than that one innocent may be condemned." 25. says that writer that it is better that 99 (i. e. and indefinite number) offenders shall escape than that one innocent may be condemned." 25. Thus from the above, the following principles can be summarised:— (a) that the burden of proving the prosecution case, generally lies on the prosecution even in case of trap of bribery, (d) that this burden is not shifted by the enactment of section 4 of the Prevention of Corruption Act, (c) that section 4 has got limited application only for raising of presumption regarding the motive of the taking of money provided it is proved that the money was obtained or accepted by the accused, (d) that even in raising the presumption under section 4, the act of acceptance or obtaining must be wilful, voluntary and with conscious mind, (e) that even where such a presumption is drawn, the accused can rebut it by showing that there is a plausible explanation and on the basis of preponderance of probability of other theory, (f) that the accused is not required to rebut this presumption by leading evidence beyond reasonable doubt. But all that is required to show is to establish preponderance of probability in his favour, (g) that the witnesses of trap are not to be discarded as accomplices but in a given case the court can insist on independent corroboration for believing their testimony. | 26. Now I shall consider the evidence and the findings of the lower court in the present appeal, by testing them on the principles of law regarding appreciation of evidence, as mentioned above. 27. It would be necessary first to survey in details the character, conduct and antecedents of Phool Singh who happens to be the star witness along with Bajrang Lal. It is the prosecution case that Phool Singh was employed originally by Tej Singh and was in railway service since 1965. It is also the prosecution case that Phool Singh used to work under the supervision of Tej Singh at Gangapur railway station and both were living at Gangapur since a number of years. The prosecution witness P. W. 2 Goli Ram has further confirmed that Phool Singh and accused Tej Singh used to drink liquor together. Not only that but Phool Singh and Tej Singh were so close that they used to even take their meals together at the hotel of this witness Goli Ram. The prosecution witness P. W. 2 Goli Ram has further confirmed that Phool Singh and accused Tej Singh used to drink liquor together. Not only that but Phool Singh and Tej Singh were so close that they used to even take their meals together at the hotel of this witness Goli Ram. The relevant part of deposition of Goli Ram in this respect is as under:— " Sometimes the accused used to come to my hotel for taking meals since about one or one and half a year. I know Phool Singh Khallasi. Phool Singh used to accompany the accused to my Hotel. The accused and Phool Singh used to drink together. " 28. Though this witness has been declared hostile at the request of the prosecution and the above part of deposition is given in the cross-examination but I have no doubt to disbelieve this part of the statement of P. W. 2, Goli Ram as it is by and large corroborated by other prosecution witness Shyam Gopal P. W. 7 also. 29. In fact the entire prosecution case has been given a big jolt and shaken completely but to the testimony of P. W. 7 Shyam Gopal who has admitted unequivocally and categorically that on the day of alleged occurrence P. W. Phool Singh and Tej Singh came to his wine shop, and not only they purchased wine on 16-6-67 on credit of Tej Singh as noted A on Ex. P./ll/l but both of them Phool Singh and Tej Singh took wine after having come together on 16-6-67 in a hotel which is adjacent to his shop. Though the witness could not give the exact time but he categorically stated that the wine was taken in forenoon of 16-6-67 and Phool Singh and Tej Singh had come from the railway station. Shyam Gopal appearing on behalf of the prosecution has produced entry Ex. P./ll/l in the account book Ex. P. 11 which shows that accused Tej Singh took wine costing Rs. 3.50 from his shop on 16-6-67. This is to be considered in the background of the extraordinary feature of this case, namely, before it on 7th and 15th of June, 1967, the desperate attempts of Phool Singh and the Police Officers to catch Tej Singh taking bribe in the trap have failed. 3.50 from his shop on 16-6-67. This is to be considered in the background of the extraordinary feature of this case, namely, before it on 7th and 15th of June, 1967, the desperate attempts of Phool Singh and the Police Officers to catch Tej Singh taking bribe in the trap have failed. On the one hand P. W. Phool Singh who was companion and comrade of Tej Singh as an alleged drunkard was making repeated efforts to get him arrested and the trap failed on the first time because the accused became conscious of the trap and second time because he lost consciousness on account of having drunk heavily on 15-6-67, the complainant was not prepared to leave him free and in the morning of the alleged day of trap i. e. 16-6-67 he took him to the wine shop and then shared the wine drinking at the cost of Tej Singh as it was taken on credit. P. W. Shyam Gopal is truthful witness produced by the prosecution, and he made the above startling revelations that liquor was taken both by Phool Singh and Tej Singh together. This part of the story was not even challenged by any question in the re-examination or by making a request for permitting the prosecution to cross-examine him on this point. Thus it will have to be taken as a proved fact by the prosecution evidence itself that in the morning of 16-6-67 and in the very nature of things a liquor shop or any shop for that purpose cannot start functioning earlier to 8. 30 or 9 in the morning, the complainant and the accused both started their days work at the railway station office by first going to the liquor shop, purchased the liquor on credit of the accused and then drank it by sitting in the adjacent hotel. The tell-tale entry in Ex. P. 11 and admission of Shyam Gopal in this respect completely adds new dimensions to the consideration of the prosecution case. The tell-tale entry in Ex. P. 11 and admission of Shyam Gopal in this respect completely adds new dimensions to the consideration of the prosecution case. It is surprising that this important aspect of the case which goes to the root of the matter and shakes the prosecution case from its very foundation, has been completely lost sight of by the learned trial Judge even though the accused in his statement has taken specific plea that at the time of so-called alleged occurrence, he was drunken and not in a conscious state of mind. 30. As stated earlier this statement of P. W. 7 Shyam Gopal read with the statement of PW. 2 Goli Ram makes out a clear case of what can be called "as a trap in a trap. " Moreso Phool Singh when confronted with this suggestion by the accused, has gone to the extent of denying it completely. 31. The exact denial of P. W. Phool Singh is in the following manner:— "It is wrong to suggest that I and the accused has taken wine before the incident about giving of currency notes took place." 32. A serious doubt is created in the prosecution story on account of above denial of Phool Singh and the assertion of P. W. 7 Shyam Gopal in respect of the fact that Phool Singh and Tej Singh went to the liquor shop in the forenoon of 16.6.67 and took wine in a hotel adjacent to the liquor shop of Shyam Gopal. The prosecution case, if believed, would show that no such occasion could arise because in the night of 15.6.67 P. W. 1 Phool Singh was told by the police officers after failure of the trap on account of absence of Tej Singh from the office that he should come in the morning of 16-6-67. According to Phool Singh he went to the house of accused on 16.6.67 in the morning at about 8 a. m. when he demanded money. Sines the money was not there, the accused told him that he should come at the office at 10 a. m. and bring the money. According to Phool Singh he went to the house of accused on 16.6.67 in the morning at about 8 a. m. when he demanded money. Sines the money was not there, the accused told him that he should come at the office at 10 a. m. and bring the money. Phool Singh went to the office to put the papers and then to Dak Bungalow at 9 a. m. and told the police officers of it on which the trap witnesses were called and the currency notes were smeared with powder and he was asked to go to railway office and give money at 10 a. m. along with Bajrang Lal. He straight away went to the office with Bajrang Lal from the Dak Bungalow and started working in the office and Bajrang Lal remained outside sitting on the cement platform near the office. The story as given by Phool Singh is that in the absence of Bajrang Lal the accused asked for money and he told him that he would pay him Rs. 10/— and the accused agreed to it and then they started from that place and the money was then paid at Chameli tree and the accused was caught at the liquor shop. The exact story given by Phool Singh in this respect is as followes: — " On 15.6.67 the accused did not attend office as he was drunk and so no trap could be laid on that day. Information Memo Ex. P. 4 was prepared on 15-6-67 and it bears my signature at A to B. The two police officers asked me to meet them next morning on 16-6-67 the accused called me from the Railway station, to his house at about 8 a.m. The accused gave me some papers to be kept in the office and he told that Have you brought money or not ? I told him that I had brought money yesterday but he (accused) was drunk and asleep. Then the accused told me that he was attending office at 10 a.m. and I should bring money there. After keeping papers in the office I went to Shri Shukla in the Dak Bungalow at about 9 a.m. and I told him all about this. Then the accused told me that he was attending office at 10 a.m. and I should bring money there. After keeping papers in the office I went to Shri Shukla in the Dak Bungalow at about 9 a.m. and I told him all about this. The currency notes which I had given to Shri Shukla on 15-6-67 were with me and I had handed over the same to Shri Shukla who sprinkled powder on those currency notes. Bajrang Lal and Shiv Pratap Tiwari were called on that day, and they were present at that time. Shri Shukla handed over those notes to me and he asked me to give those notes to the accused on his demand. Shri Sukla asked me to give a signal by placing hand on my head in case the accused accepts money. Bajrang Lal witness accompanied me and others followed us I reached the office and called the accused who told me that the Station Master and the Asstt. Operating Superintendent were in office and that he would come when the two had left the office. Bajrang Lal was standing outside. Then I worked in the office. The S.M. and O.S. went to the railway yard and the accused came out of office. The accused called me at the staircase of the office. Bajrang Lal was sitting on a cement platform near the office. The accused asked for money and I affirmed. 1 then told the accused that I would continue to pay Rs. 10/- per month, you would not turn me out. The accused replied that if you will continue to pay Rs. 10/-p.m. who is to turn you out. Then the accused asked me to accompany him and we reached under a Chameli Tree after passing by the side of Rly. Quarters and Gurudawara. The Chameli Tree is situated behind the hotel of Ramesh. The accused made a signal by his right hand for money and I after taking out from my pocket gave Rs. 20/- to the accused. Then I placed my hand on my head. The accused put Rs. 20/-in the left side pocket of his pant. When the accused left the place and he had reached a liquor shop Karan Singh asked him to stop." 33. 20/- to the accused. Then I placed my hand on my head. The accused put Rs. 20/-in the left side pocket of his pant. When the accused left the place and he had reached a liquor shop Karan Singh asked him to stop." 33. The timings as given by the prosecution are between 8 to 12 of the above incident and if between 8 to 12 Phool Singh remained with the police officers from Dak Bungalow till the trap was completed and also alleged independent witnesses Bajrang Lal etc., there could have been no occasion to go to the liquor shop with Taj Singh, get the liquor purchased on credit by Tej Singh, and then drink liquor together. Serious question posed before me is whether I should reject the testimony of the prosecution witness Shyam Gopal corroborated by the prosecution document of Ex.P/11/1 which only proves the statement and explanation given by the accused on the ground that Phool Singh had denied it. Both Shyam Gopal and Phool Singh are prosecution witnesses and it is not a case of choosing between the rival versions of the prosecution witnesses and defence witnesses. Admittedly Shyam Gopal was produced by the prosecution to prove that the accused purchased the liquor in the morning of the incident from the shop on credit. Before P. W.7 Shyam Gopal was examined, P.W.2 has already stated that Phool Singh and Tej Singh used to take food together. The testimony of P.W.2 also provides corroboration and support to P.W.7 Shyam Gopal. An important question, therefore arises whether the prosecution can be allowed to disown its own witnesses P.W.2 and P.W.7 in a case of the present type where the general evidence in the case also supports the version of P.W.7 Shyam Gopal. As an abstract or position of law, the prosecution may be allowed in a given case not to be bound by stray admissions of its witnesses if it is shown that those admissions have been made either on account of mistake of fact or law, or on account of the witnesses being interested in the accused or if it is proved that he had any motive to give a false statement and the statement given, was not correct. Is the present case of that type where the prosecution has shown any of the above factors to reject the testimoney of Shyam Gopal. ? 34. Mr. Is the present case of that type where the prosecution has shown any of the above factors to reject the testimoney of Shyam Gopal. ? 34. Mr. Soral appearing on behalf of the Special Police Establishment strenuously argued that Shyam Gopals version on this count cannot be believed because he has failed to give exact time and further because he has not stated that he was present in the shop where wine was taken both by Phool Singh and Tej Singh. Mr. Soral further submitted that the medical evidence in form of a certificate Ex. D. 6 shows that at the time of medical examination of the accused, which was conducted at 4.30 p. m. Tej Singh was in senses and all that was found, was that he had taken liquor much before. The exact wordings in this report are as under:— "In my opinion he has taken alcohol but is not intoxicated at this time. He is in full & proper senses at this time & might have taken alcohol long time before." I am afraid, it is not possible to accept the contention of Mr. Soral because the medical evidence, according to me also corroborates the version of the accused proved by P. W. 7 Shyam Gopal. There is a positive finding that the accused had taken alcohol and in the very nature of things when the accused is alleged to have been arrested in a trap at about 12 noon and the proceedings and preparation of memos etc. must have taken a few hours and after that the accused could not have any occasion to take liquor in police custody. It has come in evidence that the police officers sent him for medical examination, and, therefore, at the time when the medical examination was conducted, he was in police custody. It is true that the doctor has stated that the liquor was taken long before, but if at 4.30 p. m. it is found that one has taken liquor long before, it was not meant a day earlier and it would certainly mean some hours. In the present case the liquor was taken by Tej Singh and Phool Singh in the shop after purchasing it from Shyam Gopal in the morning which should be normally near about 10 a.m. or 11 a.m. or so. In the present case the liquor was taken by Tej Singh and Phool Singh in the shop after purchasing it from Shyam Gopal in the morning which should be normally near about 10 a.m. or 11 a.m. or so. Since the accused is alleged to have been caught red handed only at this liquor shop of Shyam Gopal, the possibility that the accused was caught immediately after taking liquor with Tej Singh, cannot be ruled out. After reading the statement of P. W. 7 Shyam Gopal, P. W. 2 Goli Ram, D.W.. 1 Baldev Raj and on a close scrutiny of the entire prosecution evidence, I am constrained to think that the accused went to the liquor shop of Shyam Gopal with complainant Phool Singh only once on that day and that was the time and place where the "trap in the trap " was made successful after having become unsuccessful twice. If that is so not only the version of the accused that he was drunken and was not aware of what happened in respect of so-called giving and taking of Rs. 20/— is plausible but appears to have strength of truth, as it is most probable and natural in the ordinary course of human conduct in the background of the mysterious history of this case and the relationship of the complainant and the accused as discussed above. It has to be taken note of that the prosecution case itself is that on 15.6.67 the trap failed because the accused indulged in excessive drinking of wine due to which he had to remain lying at his house for the whole day, even at the cost of remaining absent from the office. It has to be taken note of that the prosecution case itself is that on 15.6.67 the trap failed because the accused indulged in excessive drinking of wine due to which he had to remain lying at his house for the whole day, even at the cost of remaining absent from the office. If that is the type of person, the accused, is the probability is that on the failure of the two earlier traps and also on the accused becoming conscious of the complainant Phool Singh who as after him in the effort of getting him arrested in a trap, the suspicion of which he had as early as on 7th or 8th June, 1967, the complainant Phool Singh in a desperate attempt to make trap successful, took the accused to the liquor shop and after getting the liquor purchased took him to the shop nearby to the hotel and then after drinking together tried to or actually put two currency notes in the pocket of accused when he lost consciousness as evidenced by D.W.I Baldevraj. 35. It was the duty of the prosecution to explain the story given by P.W. 7 Shyam Gopal as a prosecution witness and clear out the clouds created thereby on the genuineness of the prosecution story in whatever legal manner which was possible. No such attempt was made either during the statement of P.W. 7 Shyam Gopal nor after it. Contrary to it, the testimony of D.w. 1 Baldevraj who appears to be the person having the hotel referred to in the statement of Shyam Gopal, clearly proved that the version of Shyam Gopal is true. Relevant portion of D.w. 1 Baldev-Raj is as under :— "On the date of occurrence, I saw accused Tej Singh and Phool Singh at about 11 A.M. coming to the liquor shop from Gali Chamaran. They then came out of that shop with half-bottle of liquor. They then consumed that liquor while sitting in the nearby restaurant. Then they came out and I saw Phool Singh planting a paper in the left hand pocket of the trousers of the accused. After some time two persons appeared there, and challenged the accused and asked him whether he had Rs. 20/- in his pocket. They then caught hold of his hands. Then the public assembled there." 36. Then they came out and I saw Phool Singh planting a paper in the left hand pocket of the trousers of the accused. After some time two persons appeared there, and challenged the accused and asked him whether he had Rs. 20/- in his pocket. They then caught hold of his hands. Then the public assembled there." 36. Nothing has come out in the cross-examination of D.W.I to show that either D.W. 1 Baldev Raj was an interested witness or his testimony is tainted in any manner. In fact the cross-examination only supports the defence case as even the prosecution witnesses have said that the police officers disclosed identity and asked the accused that whether he was the Correspondence Clerk Tej Singh. The fact that the right hand of the accused was caught by one of the police officers also finds corroboration in the prosecution evidence. No cross-examination has been conducted to show that the version of this witness is incorrect. It has come in the evidence of this witness that Tej Singh and Phool Singh both took wine earlier in the night of 15th also and not a single question has been asked to challenge it in the cross-examination. 37. Thus from the testimony of P.W. 7 Shyam Gopal, D.W. 1, Baldev Raj, P.W. 2 Goli Ram and the medical certificate Ex. D.6 and entry Ex.P 11, it is clearly proved that the explanation of the accused that at the time of the alleged occurrence, he was drunken and not conscious. Therefore the story given by the prosecution that he came out of the railway Station Masters Office with Phool Singh and they had discussed between themselves to give and take bribe, stands not only not proved but disproved. 38. Another test of judging the truthfulness of the prosecution story is whether in the ordinary course of human conduct was probable that after as accused person has become suspicious of a trap of Anti Corruption Department, when he refuse to take bribe on 7th and only within ten days of it the appellant accepts the bribe from the same complainant who had led trap earlier against him? The accused was a railway employee and it will have to be presumed that in the ordinary course, if he is caught in a trap of Anti Corruption Department not only he would lose his job by dismissal but he will have to go into jail and thereby ruin his career and life both. In the ordinary course of the human conduct, on the slightest inkling or hint or suspicion of such a situation, the accused would never take risk in the near future in a few months at least, if not for a few years and in no case he would accept bribe from that very person. In a given extreme case of an abnormal degree many things may happen otherwise, but the courts have to judge the truthfulness of the story of the prosecution, by the standard, how in the ordinary course of human conduct, a person is likely to behave. The improbability of the conduct alleged by the prosecution also creats a serious doubt in the prosecution case and makes the prosecution story improbable to be believed. 39. Inspite of the above, infirmities and the legal position. Mr. Soral submitted that from the evidence of Phool Singh P.W. 1, P.W. 6 Bajrang Lal, P.W. 5 Shiv Pratap, P.W. 28 Karan Singh and P.W. 29 Shukla, it is proved that the accused on the day of the occurrence first came to the Railway Station Masters Office and thereafter he asked Phool Singh to wait for a while because Officers have come and later on came out after about an hour and went towards the railway quarters, Gurdwara and ultimately Chameli tree, near the Sales-Tax office and took money there. He further submits that immediately on coming out he had a conversation with Phool Singh in the presence of hearing of Bajrang Lal wherein he made sure that the money was available with Phool Singh and told him that if he would give money, he would be continued in service and that he should follow him. This according to Mr. Soral was in pursuance of the earlier talk which witness Phool Singh had at the residence of Tej Singh in the morning at about 8 a.m. on that day. This according to Mr. Soral was in pursuance of the earlier talk which witness Phool Singh had at the residence of Tej Singh in the morning at about 8 a.m. on that day. It is submitted that since all this evidence is clinching, the suggestion that the accused was in a drunken state of affairs at the time of occurrence, should be ruled out and even if there is some truth in it, then since the accused had instructed, out-side Railway Station Masters office, Phool Singh to follow him and give money for the purposes of bribe and that was said in the presence of Bajrang Lal, it was immaterial as to whether at the exact time of giving money, the accused had taken some wine. 40. The argument of Mr. Soral to start with appeared plausible and forceful, but on a close scrutiny, I have found ultimately it as untenable for the reasons which I will hereinafter mention. Phool Singh had failed to inspire any confidence because of his various omissions and commissions in this case, in addition to whether has been pointed out so far. Firstly, he was hand in glove with Tej Singh and used to share to common vice of drinking liquor habitually. Being a drunkard himself and a companion of Tej Singh, his testimony has to be seen with discount particularly when he tries to get his fellow companion trapped. Secondly, his denial that he did not take liquor with Tej Singh on the day of occurrence in the face of the prosecution evidence to the contrary, makes him wholly unreliable witness. Again according to the prosecution, Bajrang Lal was asked to accompany Phool Singh and remained with him throughtout so much so that he was instructed to overhear the conversation between Phool Singh and Tej Singh and after witnessing the transaction of bribe, to give a signal to the police party by putting his hand over his head. 41. Again according to the prosecution, Bajrang Lal was asked to accompany Phool Singh and remained with him throughtout so much so that he was instructed to overhear the conversation between Phool Singh and Tej Singh and after witnessing the transaction of bribe, to give a signal to the police party by putting his hand over his head. 41. According to Phool Singh, Bajrang Lal was waiting just out side the Station Masters Office and when he came out with Tej Singh and talked about the bribe on the stairs, Bajrang Lal was also hearing and witnessing all that; Phool Singh then tells that he along with Tej Singh and Bajrang Lal went towards the railway boundary and after crossing it, went towards railway quarters and Gurdwara and ultimately in the market below a chameli tree and then to the liquor shop where the accused was caught. The entire fabric built by Phool Singh falls flat on the ground when the only independent witness Bajrang Lal gives a good-bye to this tell-tale story and not only contradict Phool Singh and other witnesses on this material point by omitting this story in his statement in the court but by further denying that any such story was given by him in the police also. Relevant portion of the statement of Phool Singh in this respect is as under :— "Bajrang Lal was standing outside. Then I worked in the office. The S.M. and O.S. went to the railway yard, and the accused came out of office. The accused called me at the staircase of the office. Bajranglal was sitting on a cement platform near the office. The accused asked for money and I affirmed. I then told the accused that I would continue to pay Rs. 10/- per month, you would not turn me out. The accused replied that if you will continue to pay Rs. 10/- p.m. who is to turn you out? Then the accused asked me to accompany him and we reached under a Chameli tree after passing by the side of Rly. Quarters and Gurudawara. It would be useful to point out here the version of Bajrang Lal in this respect : "I was directed to watch passing of currency notes as bribe, to Tej Singh. I, Shukla, Karan Singh, Phool Singh and Pratap Singh went to the railway station Gangapur city. Quarters and Gurudawara. It would be useful to point out here the version of Bajrang Lal in this respect : "I was directed to watch passing of currency notes as bribe, to Tej Singh. I, Shukla, Karan Singh, Phool Singh and Pratap Singh went to the railway station Gangapur city. Karan Singh and Shukla stood aside and Phool Singh entered the office room in which the accused was sitting. I stood outside the office room. After 25 to 30 minutes Phool Singh and Tej Singh came out of the office, and Phool Singh handed over two currency notes of Rs. 10/- each to the accused. At that time I was at a distance of about seven yards. The accused put the currency notes in the left side pocket of his pant. I had been asked to make a signal by putting hand on my head after bribe money is passed. Phool Singh and I made a signal, by putting our hands on our head. Then Phool Singh and Tej Singh went to the wine shop, and I followed them. Karanshigh Inspector came to the wine shop and he caught hold of both the hands of Tej Singh near wrist near the wine shop. Then Shukla and Pratapsingh also came there." 42. The above narration would show that according to Bajrang Lal the bribe was given as soon as Phool Singh came out of the office. Neither there is any mention of some talk on the staircase nor there is a suggestion that Tej Singh asked Phool Singh to follow him and then they left the office and went to the railway quarters, Gurdwara and Sales-tax office. The suggestion from the above statement is that as soon as Phool Singh came out from the office the amount was given and thereafter they went to the wine shop. To put it in sequence, the statement would be as follows : "After 25 to 30 minutes Phool Singh and Tej Singh came out of the office, and Phool Singh handed over two currency notes of Rs. 10/- each to the accused. At that time I was at a distance of about seven yards. The accused put the currency notes in the left side pocket of his pant. I had been asked to make a signal by putting hand on my head after bribe money is passed. 10/- each to the accused. At that time I was at a distance of about seven yards. The accused put the currency notes in the left side pocket of his pant. I had been asked to make a signal by putting hand on my head after bribe money is passed. Phool Singh made a signal, by putting our hands on our head. Then Phool Singh and Tej Singh went to the wine shop, and I followed them." 43. This makes it perfectly clear that the bribe was given just outside the Railway Station Masters office, according to Bajrang Lal. It would be evident from the perusal of the site plan Ex.P. 10 duly proved by the S.H.O. that the Railway Station Masters office Gangapur is in the station building at point No. A and outside it, is the Chabutari near a railway platform where Bajrang Lal was sitting just adjacent to it is the stairs at point B. As per version of Bajrang Lal, the bribe was given between point A and B as it was just after coming out of the Station Masters office. The road from point B then goes upto Railway quarters parallel to the railway boundary and then turns towards Gurdwara and from Gurdwara there is another road parallel to railway boundary which comes upto the shop near Post Office and the hotel of Ramesh and Sales-tax Office. The liquor Theka at point G is located at the end of the road in the market between the Sales-tax office and the shops. Point F where, according to Phool Singh and other trap witnesses except Bajrang Lal money was accepted in front of Sales-tax office building and on the main road of the market. This point is roughly at a distance of 3 kilometers if a person comes from point shown in the site plan Ex. P. 10 by arrow mark and which is alleged to be the way which was used by Phool Singh and Tej Singh for coming from point B to point F The distance is not given in Ex. P. 10. But Mr. Soral counsel for the C.B.I. admitted it after a few advocates of Gangapur, who were present in the court during the arguments of this case before me, mentioned this estimate of the distance when they were asked after seeing Ex.P.10. P. 10. But Mr. Soral counsel for the C.B.I. admitted it after a few advocates of Gangapur, who were present in the court during the arguments of this case before me, mentioned this estimate of the distance when they were asked after seeing Ex.P.10. It would be pertinent to note that the entire story of the prosecution of the accused and Phool Singh travelling from point B to point F before giving bribe and Bajranglal accompanying them as per instructions of the police, is completely smashed by the following statement of Bajrang Lal which clears doubts, if any: "I have heard my statement Ex.D/6 and its portion A to B. I had stated the portion A to B. My statement recorded today is correct and what I stated at A to B in Ex.D/6 related to the time when Phool Singh and accused had gone to Chameli tree after passing of the bribe money. Chabutra and Chameli tree are nearer. The accused and Phool Singh had reached Chameli tree after taking a round of the Sales-tax office." 44. This shows that according to Bajrang Lal, the money was taken just out side the railway Station Masters office in between point A to B and thereafter Phool Singh and Tej Singh started towards the railway quarters and then Gurdwara and then the market where Sales-tax office, tree and liquor shop are located and thus covered a distance of about 2-3 kilometers on foot. There cannot be any reconciliation between the story given by Phool Singh supported by trap police officers on the one hand and Bajrang Lal on the other hand as a distance of 2-3 kilometers cannot be covered by misunderstanding of place where the bribe was given. Bajrang Lal is very specific when he says that the entire route was covered as mentioned in Ex. D. 6 portion A to B, after passing of the bribe money. Bajrang Lal is very specific when he says that the entire route was covered as mentioned in Ex. D. 6 portion A to B, after passing of the bribe money. This means that bribe money was passed first then the accused and Phool Singh travelled for a distance of 2-3 kilometers in order to reach the Chameli tree after taking a round of Sales-tax office and negotiates the prosecution case that bribe money was passed below the Chameli tree in the market near Sales-tax office at point F Shivpratap P.W. 5 another motbir who was not to accompany Phool Singh but to accompany the police officers who were to remain at some distance from Bajrang Lal and Phool Singh and Tej Singh has stated that at the Dak bungalow he was called and asked to accompany Phool Singh, therefore, Bajrang Lal and Phool Singh went ahead and others followed. His statement also shows that the principal part of accompanying Tej Singh and Phool Singh and hearing their conversation and watching of giving notes and then to give signal was entrusted to Bajrang Lal. Since Bajrang Lal has taken a complete Somersault so far as the giving of bribe is concerned and the distance travelled by the accused and Phool Singh after giving of bribe is 2-3 kilometers from Railway Station Masters office to the market via railway quarter and Gurdawara, it is impossible to reconcile the two versions. 45. The lower Court has tried to brush aside this material contradiction of the change of the site of the offence as disclosed by Bajrang Lal which goes against the prosecution case by treating it as a minor affair. If two different spots having a distance of 2-3 kilometers can be reconciled as a minor contradiction, it is yet to be understood what would be the shape and meaning of major contradictions. During arguments, I enquired from Mr. Soral whether it is possible to reconcile the version of prosecution if the prosecution story is that the bribe was given at "Panch Batti near M.I. Road" after the accused & the bribe giver came from the High Court building and the other version of the spot of bribe being on the point of coming out of High Court building itself as the distance between the two is likely difference about two kilometers or so. The answer of Mr. The answer of Mr. Soral was that the analogy should not be made applicable because Bajrang Lals statement is only mis-description of the place. However he did agree that no body can commit the mistake between the two points and if difference of description is of that much one saying that the bribe was given at the gate of the High Court office and the other saying that bribe was given after the accused started from High Court office and reached Panch Batti at M.I. Road. There is no doubt that either the statement of Bajrang Lal on this point is false or the prosecution case is false but the two cannot be true at the same time. If that is so, the logical corollary follows that the entire prosecution case stands shaken and it, therefore falls flat on the test of cross-examination and prosecution story becomes highly doubtful, the benefit of which naturally goes to the accused. 46. Now I have high lightened the two important material lacunas of the prosecution case. Firstly, on the point of the accused and complainant Tej Singh and Phool Singh drinking liquor together at the time of occurrence and the second one, the place of passing of bribe money differing from point B railway station office to point F, Chameli tree at a distance of about 2-3 kilometers and if both these serious infirmities are taken together they completely makes out a case for exoneration and acquittal of the accused. It is not without significance that even Phool Singh who has repeatedly denied that he did not take wine with Tej Singh at the time of occurrence, had also stated that accused told, while they were going from the office of the Chameli tree, that "we would take Kesar and Kasturi ". It is well known that Kesar and Kasturi are two established form of country liquor in Rajasthan and the being so, this admission of Phool Singh clearly shows that while accused and Phool Singh were going from the railway office to the market where the liquor Theka is situated and where it is alleged that accused did get the money, he was talking to taking of Kesar and Kasturi. It is thus shown that a third story is also possible in this case that the accused and complainant went to take liquor in the Theka where admittedly they have taken liquor according to P.W. Phool Singh on that day and when they have taken the accused lost senses, this trap story started as the complainant Phool Singh who was after him, since 7th, but could not succeed, put the money in the accuseds pocket. The finding of the powder on the hands of the accused is also explainable if this story is believed, because when the hands of the accused were caught and touched by the police officers, who according to their own version had used the powder by their own hands for putting it on the currency notes, some powder is bound to come in contact with the hands of the accused and later on it remained there. Yet another possibility which cannot be ruled out is that when the notes were pushed through or taken out as per the device and designed plan of Phool Singh, the powder which was on the notes, must have touched the hands of the accused also. But that would not make it a proof of a wilful or voluntary act of obtaining or accepting money as gratification. 47. The statement of D.W. 1 only proves this story and so far as accused is concerned, it is not necessary that he must prove his defence beyond doubt. 48. In view of the above discussion, it is not necessary to discuss the entire prosecution evidence as admittedly the other prosecution witnesses mentioned above cannot improve the case of the prosecution, if it is not proved by testimony of Bajrang Lal and Phool Singh who are the star witnesses. As "no one can be more pious than the Pops himself," the prosecution case if it cannot stand on the strength of Phool Singh and Bajrang Lal would certainly not become proved case on the basis of the testimony of Karan Singh and Shiv Pratap Singh. It would be, therefore, unnecessary to discuss in details the testimony of P.W. Karan Singh, Shivpratap Singh and Shukla. 49. Mr. Bafna appearing on behalf of the accused has submitted that the accused was not concerned with the employment of or continuing the employment of Phool Singh and others and, therefore, the entire case is false. It would be, therefore, unnecessary to discuss in details the testimony of P.W. Karan Singh, Shivpratap Singh and Shukla. 49. Mr. Bafna appearing on behalf of the accused has submitted that the accused was not concerned with the employment of or continuing the employment of Phool Singh and others and, therefore, the entire case is false. He also submitted that it is not possible to believe that a clerk would continue in employment a dozens of railway employees as alleged & obtain bribe every month from them. It may be that in such bribe cases there are rackets and gangs operate with racket and Chief Ring Master who is bound to be a very senior officer always behind the screen and the lowest at the ladder like clerk and peons, Constables, Patwaris, Chowkidars, Pointsmen are made the scaps goat in such trape of Rs. 2/- to 20/- for the purposes of fulfilling the statical targets of the Anti-Corruption Department. 50. Mr. Bafna is not very wrong when he says that how it is that the Anti Corruption Department officers only get the tail by leaving the head and while the class III and IV employees are more persecuted rather than prosecuted for justification of work of such department, the high ups in those departments go scot free even though they take lions shars of such bribe money. The suggestion of Mr. Bafna was that the manner in which this low paid clerk Tej Singh was chased, again and again in spite of failure of the traps twice or thrice and was made to drink by Phool Singh only to make him senseless and helpless undefendable and unintelligible to overcome the trap, calls for serious attention of all those who want really to eradicate the corruption. It was argued that corruption starts from the top and then flows down below in the lower rank and if the alleged drunkards of the type of Tej Singh are only to be made victims of such traps, the object and purpose of the legislation would not be served. 51. Mr. Soral was asked whether there have been any cases where high ranking officers have been caught in such traps and Mr. Soral frankly expressed his ignorance though on the ground that he has recently started discharging the responsibility of the prosecutor in this department. 51. Mr. Soral was asked whether there have been any cases where high ranking officers have been caught in such traps and Mr. Soral frankly expressed his ignorance though on the ground that he has recently started discharging the responsibility of the prosecutor in this department. But he did from his knowledges as an Advocate admit that the traps mostly are for class III and IV employees and the money involved is usually from Rs.5/- to Rs. 50/- and the few hundred in rare cases but rarely thousands and lacs which really form the bullwork of corruption in our country. 52. It is not for this Court to comment on this unhappy state of affairs as this should be a matter for concern either to the legislators or to the political philosophers of this country, as to why many a times head is left and tail is caught. It would be unsafe for this court make any comments in this respect as so far as the administration of the law in the Courts is concerned, the courts are to deal with persons as and when they are put for trial irrespective of the fact whether they are head or tail and irrespective of the fact whether money or bribe involved is trivial or heavy. Inspite of this detachment which the court should have above the working of the departments and priorities, it will not be possible to escape the temptation of veering that this is one of those cases which provide a glaring example of a trap in trap of a low paid clerk and even his weakness and vice of drinking was exploited by Phool Singh, if not by the police to make the traps, seemingly successful without which it failed twice or thrice earlier due to reasons mentioned above. 53. It is also a case in which it is unintelligible as to when the railway officers were permitting Tej Singh to mostly remain in a drunken state of affairs and even to remain absent from service after drinking heavily during office hours. This could not have been possible except with collusion or connivance, conscious or unconscious or protection of some high officers and again that could not have been without consideration. This could not have been possible except with collusion or connivance, conscious or unconscious or protection of some high officers and again that could not have been without consideration. It was the duty of the railway officers to tell Tej Singh to get rid of this vice of drinking the wine during office hours atleast and then if he persisted on it inspite of it, to get rid of a drunkard from the railway office. The fact the neither of the two was done, reveals a sorry state of affairs in the railway department at Gangapur and in that background that role of Phool Singh in acting as a companion in the liquor drinking with his boss Tej Singh and then becoming an informer of the police officers in the Dak Bungalow for getting his boss arrested in the act of bribe certainly depicts his character. 54. In view of the above it is to be seen that this case provides two possibilities which are equally balanced. The first one is as shown above appears to be that Phool Singh led Tej Singh into a trap of providing temptation for drinking wine and then abusing and misusing the loss of consciousness by Tej Singh under heavy drink, trying to thrust 20/- in his pocket for making the bribe trap successful. This rules out the possibility of any voluntary, wilful and conscious acceptance or obtaining of Rs. 20/- by Tej Singh from Phool Singh. The second alternative possibility is the prosecution case as has been placed before the court though supported by tainted and contradictory evidence as discussed above. Even if it is assumed that the two possibilities are equally balanced on the totality of consideration of the prosecution evidence then also the benefit of doubt goes to the accused. It is, therefore, held that the prosecution in this case has failed to prove its case beyond all reasonable doubt and the accused is, therefore, entitled to acquittal. 55. The result is that the appeal is accepted, the conviction of the accused under Section 161 I.P.C. and section 5 (10) (d) read with section 5(2) of the Prevention of Corruption Act is set aside and the accused is acquitted. He is already on bail and need not surrender.