G.M. LODHA, J.—Mr. Purohit was at his best as he usually is with the remarkable marshalling of fact and conspicuous ability lucidity and splendid feats of legend oratory. His only regret was that there was none to challenge him. A walk over could never be relished by a "gem" amongst Advocates and is too dangerous for a just decision. 2. This is an appeal against the judgment of the Special Criminal Case No. 40 of 1974 dated March 23, 1976 of the Special Judge for A.C.D. Cases Rajasthan Jaipur, by which, appellant Mahendra Singh was convicted for an offence under Section 161 I.P.C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947 and sentenced to undergo six months simple imprisonment and a fine of Rs. 1000/-, under Section 161 I.P.C. and two years simple imprisonment and a fine of Rs. 2000/- for the offence under Sec. 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act. 3. The prosecution case is that Mahendra Singh was an Audit Inspector, Co-operative Societies, Sangaria, District Ganganagar. While he was working as an Audit Inspector of the Co-operative Societies, Sangaria, he approached Jagwant Singh sometime prior to the trap and got laters thumb impression on a piece of paper after writing something thereon, without disclosing to Jagwant Singh as to what the paper was, on the pretext that if Jagwant Singh needed cheap bricks and signed that paper, he would get him procured the bricks at a cheaper rate. Jagwant Singh, apprised his son of his putting the thumb impression on a piece of paper at the instance of the accused. His son Labh Singh immediately felt that something had been done by the accused to cause them harm. He met the accused the next day and asked the later what the real cause was for getting thumb impression of his father on a piece of paper. The accused told Labh Singh that the later has stoled bricks of Sangaria Brik Co-operative Society and he would lodge the report with the police to see him rounded up in that case. The accused told Labh Singh to pay Rs, 300/- and in that case the matter would be hushed up. 4. Labh Singh approached the Anti Corruption Department at Ganganagar and took Roop Singh with him. Report Ex. The accused told Labh Singh to pay Rs, 300/- and in that case the matter would be hushed up. 4. Labh Singh approached the Anti Corruption Department at Ganganagar and took Roop Singh with him. Report Ex. P/l was lodged to the Additional Superintendent of Police on 21-10-1972. The Additional Superintendent of Police planned out a trap and with a view to get the accused arrested red-handed he rushed to Sangaria. He obtained GC notes worth Rs. 300/- from Labh Singh and dusted them with henopthaloin power after puting his initials thereon. Motbirs Rup Singh and Randhir Singh were present there at that time. The notes were handed over to the decoy for their onward transmission to the accused on demand. The party arranged a signal also. The tainted notes were given to him for giving them to the accused. The motbirs were asked to serve as shadow witnesses and consequently the decoy and the motbirs were sent in advance to the accused. 5. As soon as notes were accepted by the accused, signal was given and the Additional Superintendent of Police rushed to the spot. The tainted GC notes were recovered by the Additional Superintendent of Police from the accused. The numbers were checked and tallied and thereafter hand wash of the accused was obtained. The result was positive of phelolphathalein by showing the change of colour into pink. The said wash was preserved and seized in bottles Articles Arts.4 and 5. Bush shirt of the accused Art. 6 from which the tainted G.C. notes were recovered, was also taken into possession from the accused. The G.C. notes were marked as Art 1 to 3 Necessary memos were prepared at the spot in the presence of motbirs and papers Art. 7 to 10 were also recovered from the accused by the Additional S.P. The accused was asked by the Additional Superintendent of Police to show how he obtained the notes. The accused said that be had loaned a sum of Rs 300/- and that the tainted notes were paid to him by Labh Singh as repayment of that loan. 6. The prosecution case itself is that the dairy was also produced by the accused containing therein a note to the effect that a sum of Rs. 300/- had been advanced as loan to the decoy in the month of June, 1972. 6. The prosecution case itself is that the dairy was also produced by the accused containing therein a note to the effect that a sum of Rs. 300/- had been advanced as loan to the decoy in the month of June, 1972. The Additional Superintendent of Police seized the diary also. 7. The case was registered against the accused by F.I.R No. 22/1972. After investigation the challan was produced and before that sanction of the competent authority was obtained. 8. The charge was framed against the accused on 5.12.1974. The accused pleaded not guilty and claimed to be tried. The prosecution examined evidence to substantiate the charge and then the accused examined himself and produced defence evidence also. 9. In the conclusion of the trial, after hearing the arguments the learned trial court found the accused guilty and convicted and sentenced him as mentioned above. 10. According to Mr. Purohit the prosecution has miserably failed to prove the guilt against the accused. Mr. Bhimraj has taken me through the entire record of the case and has read out the statements of all the material witnesses of the prosecution as well as defence. He has challenged the various findings of the learned trial court and submitted that the judgment of the trial court is bad in law as well as on facts. This case was initially argued by Mr. Bhimraj on December 22, 1981. Mr S.S. Mathur, appeared for the State on that day and prayed for time to reply to the arguments of Mr. Bhimraj The case was then taken up on December 23, 1981 but Mr. Mathur against took time and therefore the case was kept for completion of arguments. 11. On January 11, 1982, the case was again taken up but it was adjourned and yesterday the arguments commenced. The arguments of Mr. Bhimraj were again heard today. No one appeared on behalf of the State in order to reply the arguments of Mr. Bhimraj. It is a matter of serious concern that serious case under the Prevention of Corruption Act are not attended by the Government Advocate Office. Even though arguments have continued in all for about three hours today, and many Dy. Government Advocates came in between in the Court but surprisingly nobody has choosen to appear in this case and reply the submissions of Mr. Bhimraj. 12. Even though arguments have continued in all for about three hours today, and many Dy. Government Advocates came in between in the Court but surprisingly nobody has choosen to appear in this case and reply the submissions of Mr. Bhimraj. 12. In view of this unfortunate situation, I have got no escape but to decide the case exparte on the basis of submissions of Mr. Bhimraj and perusal of the record of the case in the absence of the assistance of Govt. Advocate. 13. The prosecution has examined 8 witnesses in support of its case. Labh Singh (PW 1) is the decoy. PW 4 Rup Singh and PW 7 Randhir Singh are motbirs who were connected with the trap proceedings from time to time. PW. 2 Jagwant Singh is the father of the decoy. PW.3 Ganpat and Brijlal PW. 5 are the Assistant Registrars of the Co-operative Societies who were examined to prove certain records of the Co-operative Department. PW 6 Arun Kumar is the sanctioning authority. P.W. 8 M.K. Pareek is the Additional Superintendent of Police who had got a duel role of lodging the police report and then becoming the Investigating Officer for his own trap. 14. The examination of the accused was conducted under section 313/281 Cr.P.C. Important point involved in this case is whether the amount of Rs. 300/- was actually given to the accused as bribe. The accused has not denied the receipt of the money of Rs. 300/- from the decoy. In view of these facts, it would be unnecessary to discuss the entire evidence so far as the trap is concerned. The relevant features of this trap will now be discussed in order to adjudicate the guilt of the accused. 15. The taking of GC notes Articles 1 to 3 having been accepted by the accused, the important feature of this case would be whether the accused took the amount as illegal gratification or on account of repayment of loan alleged to have been advanced by him. The accused had denied categorically that he ever accepted this amount as bribe and he has denied the entire prosecution case so far as the allegation of getting thumb impressions on blank papers and demanding the bribe is concerned. 16. The accused examined defence evidence which I would discuss at alater stage. 17. Mr. The accused had denied categorically that he ever accepted this amount as bribe and he has denied the entire prosecution case so far as the allegation of getting thumb impressions on blank papers and demanding the bribe is concerned. 16. The accused examined defence evidence which I would discuss at alater stage. 17. Mr. Bhimraj, learned counsel for the accused appellant unfolded the defence case which can be summed up as follows There was Bhagatpur Cooperative Society. The accused who was an Auditing Inspector in the Co-operative Societies audited this society and found that brik klin was not actually run by the society but was given on credit. A complaint was lodged by the accused Mahendra Singh and the Co-operative Society gave a notice of this complaint then. The notice was given to Ajmer Singh and Lal Singh. Since they did not appear, the Collector took proceedings and issued warrants of Rs. 5000/- against them. 18. Aggrieved by this, Ajmersingh and Lalsingh, approached Labh Singh who was none-else than their cousin brother In Labh Singh they found their ambition of taking revenge successfully. It would be interesting to note that 5 brothers Rup Singh, Laxman Singh, Labh Singh, Ajmer Singh and Santa Singh, all jointly with the instrumentality of Labh Singh, planned out the entire case. According to their plan they traped the Additional S. P. who fell in a trap of the trap. It would be later on seen that those persons who were 5 brothers named above, remained activist not only in the trap, first to trap the Addl S.P. the to trap the accused, but later on continuously remained present in the court during the prosecution. 19. In order to substantive the above defence Mr. Bhimraj pointed out to me that relationship of these persons is not a matter of inference but it has been admitted by the prosecution evidence. Obviously decoy Labh Singh is the son of Jagwant Singh. According to the statement of PW. 2 Laxman and Ajmer Singh admitted that Ajmer Singh was present in the court. PW. 1 decoy admitted that Ajmer Singh was his cousin brother. He further admitted that Laxman was present in the court. PW 4 admitted that Labh Singh was his cousin brother. PW. 7 admitted that Laxman Singh brought a glass of water. PW. 2 Laxman and Ajmer Singh admitted that Ajmer Singh was present in the court. PW. 1 decoy admitted that Ajmer Singh was his cousin brother. He further admitted that Laxman was present in the court. PW 4 admitted that Labh Singh was his cousin brother. PW. 7 admitted that Laxman Singh brought a glass of water. PW. 7 further admitted that he has been brought for giving evidence by Laxman, Jagwant Singh and Labh Singh All this would show that Mr. Bhimrajs theory of defence is not an imagination but is born out from the admissions of the prosecution witness itself So far the relationship of these persons are concerned, it will have to be held that they are intervowan and decoy as well as all these witnesses are interelated in one way or the other. They wanted to take revenge from the accused, who had made a complaint against them and got a warrant issued and proceedings of which resulted in the Collectors order for liquidation of this Bhagatpura Co-operative Society. These are all questions which will be answered after discussion of the entire case when it is possible to come to some positive conclusion at the end. 20. The important feature of the case is that acceptance of Rs. 300/- by the accused having been admitted, what legal requirement remains for proving the guilt of the accused in a case under section 161 I.P.C. read with section 5 (2) read with 5 (1) (d) of the Prevention of Corruption Act. 21. Mr. Purohit invited my attention to principles of law, about burden of proof in Trap Oases, laid down by me in Tej Singhs case, which he termed as "Classical", though accordingly to me they reiterate the settled law only and takes support from "Dharam Shastras" of India. In Tej Singh vs. State of Rajasthan (1). I had observed as under:- "The borden of proving the prosecution case, generally lies on the prosecution even in case of trap of bribary, this burden is not shifted by the enactment of sec. 4 of the Prevention of Corruption Act, S. 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, even in raising the presumption under sec. 4 of the Prevention of Corruption Act, S. 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, even in raising the presumption under sec. 4, the act of acceptance or obtaining must be willful, voluntary and with conscious mind even where such a presumotion 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, 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." 22. In paras No. 15, 16 and 17 I have further observed as under:- "The above law in respect of the benefit of doubt, has not been enunciated for the first time by the English Judge and Jurists for our country, I have earlier also pointed out in "Mana vs. State" while discussing the "right of private defence" that Manu. Brahaspati and Kautliyan, had not only recognised it but put it on very high pedestal, the what English Law makes have put it U/S 97 to 103 IPC. 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, Smritisand, Dharmsastras of our country rainforces our faith in this part of jurisprudence, making task of interpretation easy and interesting. Even several centures before Christ, Dharamshsatra laid down the same principles that benefit of doubt should always go to the accused. Harodatas Co. on Apastambandharama-sutra published by Halasyathe Sastri, contain the following Sanskrit verse, ^^u p lUnsgs dekZu~** the kind should not punish when there is a doubt." 23. The famous author P.V. Rana has extracted the above principles of benefit of doubt, from the Dharmshastra in his Treaties "History of Dharm-shastra 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 Dharamshastras before 300 to 66 B.C. 24. The principle was well known even in the legal procedure for doing justice in Kautilya are. Thus this principle of benefit of doubt was in vogue in early time but was published in the above Treaties of Dharamshastras before 300 to 66 B.C. 24. The principle was well known even in the legal procedure for doing justice in Kautilya are. 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 Dharamshastras, 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. ^^u p lUnsgs d;kZr~A lfof/kr ,oa izR;s;sUg jktk n.Mk; nn~;kr~A** Kautilyas doctrine of conclusive evidence is found in Samaptkernam Niyamat. ^^lekIr dj.ke~ fu;Iuesr** In the trap ease 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. 25. In Para 23 I have mentioned as under:- Dealing with the question of burden of proof Sarkar in "Evidence 19th Edition page 33 has made the following summary: "Rules of proof in criminal case. When dealing the serious questions 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 a moral certainly every reasonable doubt of the guilt of the accused ;(3) In matters of doubt it is saffer 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 delicit; (5) The hypothesis of delinquency should be consistent with all the facts proves (Best) " 26. Before I proceed further, it would be necessary to take note of the following provisions of the Prevention of Corruption Act. S.4. "Presumption where public servant accepts gratification other than legal remuneration -(1). Where in any trial of an offence punishable under Sec. 161 or Sec. 165 of the Indian Penal Code(45 of 1860) or of an offences referred to in clause (a) or clause (b) of sub-section (1) of Sec. 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 from any person, it shall be presumed unless the contrary is proved that an accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is or re-wand such as is mentioned in the said Sec. 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate." 55. Criminal Misconduct : (1) A Public servant is said to commit the offence of criminal misconduct : (a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Sec. 161 of the Indian Penal Code (45 of 1860), or (b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration which he knows to be inadequate, from any person whom he knows to have been or to be or to be likely to be concerned, in any proceedings or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the persons so concerned: or (c) If the dishonestly or fraudulently misappropriate or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage (or) (e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account of pecuniary resources or property disproportionate to his known sources of income. 5 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing impose a sentence of imprisonment of less than one year". 27. In the instant case undoubtedly there is admission of the accused that Rs. 300/- were given by the decoy and taken by the accused at the time of trap and they were recovered from the accused. 27. In the instant case undoubtedly there is admission of the accused that Rs. 300/- were given by the decoy and taken by the accused at the time of trap and they were recovered from the accused. The question still remains whether the defence of the accused in respect of advancement of loan and its repayment is a plausible defence on account of which the prosecution case becomes doutful. 28. It may be mentioned that the prosecution has been relieved of discharging the burden of proving the entire trap of payment because of admission of the accused, so also the defence version that Rs. 300/- were received back on account of repayment of loan also finds initial mention right at the commencement of the investigation, in the first important event of trap, namely preparation of the recovery memo. It is one of those extraordinary cases where the recovery memo itself contains a note regarding this defence. It is also a special feature of this case that not only the recovery memo contains this note, but corroborative evidence of this is made available at that time by production of a diary containing an entry that Rs. 300/- were given as loan to the decoy. 29 It has yet to be seen whether the defence of the accused that Rs. 300/-was taken by him from the decoy as repayment of loan is an after thought concocted, fabricated defence or it has got some element of genuineness, and whether it can be accepted as a plausible defence, though it may not be proved beyond reasonable doubt, 30. Before I proceed to analyse this material aspect of the case, it would be useful to mention here that the trial court have discussed this aspect of the case in details and rejected the theory of defence as having not been proved and not established for a variety of reasons. I would deal them a little later. 31. I must first take notice of an affidavit of the decoy himself which is Ex. I would deal them a little later. 31. I must first take notice of an affidavit of the decoy himself which is Ex. D2 and which reads as under: ¼,½ eSa gy;k c;ku djrk gwW fd fedj dh vkil esa ysus nsu Hkh dkQh vlkZ ls pyk vk jgk gWwA eSa gy;k c;kus djrk gwW fd fedj us Jh egsUnz flag bUlisDVj ls guqeku izlkn tkV 300 :i;k crkSj dtkZ lefj;k ls fy;s FksA esjs tks 29-6-72 dks fy;s FksA eSa gy;k c;ku djrk gwW fd egsUnzflag etdwj us dbZ ckj rdktk fd;k fd esjs dk igaqpkvksA eSa gy;k c;ku djrk gwW fd fnukad 21-10-72 dks eSa 300 :i;k ysdj egsUnzflag bULisDVj ds ?kj dh vksj okLrs vnk;xh 300 :i;s dtkZ nsus tk jgk FkkA eSa gy;k c;ku djrk gwW fd fedj dtkZ vnk djus tk jgk Fkk rks jkLrs esa vtesjflag :iflag tkV fl[k feys ftlds lkFk ,d iSaV igus ,d vkneh FkkA eSa gy;k c;ku djrk gwW fd eq>s vtesjflag cxSjk us dgk fd dgka tk jgs gks eSaus dgk fd eSa 300 :i;k egsUnzflag ls.kh dks nsus tk jgk gwW tks fd m/kkj fy;s FksA mUgksaus Hkh eq>s dgk fd ge Hkh egsUnflag ls.kh dks feyus tkuk gSA ge lkFk gh pyrs gSA egsUnzflag ds ?kj ge lc x;s rks egsUnzflag ls.kh ?kj ij ekStwn FkkA eSaus vtesjflag] :iflag o rhljk vk;dj] Hkz"Vkpkj fujks/kd foHkkx dk Mh-okbZ-,l-ih-lh- ds lkeus egsUnzflag dks 300½ :- tks eSaus m/kkj fy;s Fks nsus pkgk exj vtesjflag us uksV ysrs gh vtesjflag] :iflag us Mh-okbZ-,l-ih- tks lkFk esa Fkk fjor dk dg dj idM+ok fn;k vkSj mUgksaus eq>s /kedk fn;k fd rqe pqi jgksA eSa Mjrk gqvk cksyk ugha mlds dgus ds eqrkfcd gh vaxwBk yxk fn;kA njvly mijksDr rhu lkS :i;s fjor ds ugha Fks og rks dtkZ vnk djus ds FksA ¼ch-½ 32. This document is of vital importance in this case because, if believed the entire prosecution case falls flat on the ground because none else but the decoy himself has admitted in this affidavit that the amount of Rs 300/-was taken by him from the accused and the same repaid. This document is of vital importance in this case because, if believed the entire prosecution case falls flat on the ground because none else but the decoy himself has admitted in this affidavit that the amount of Rs 300/-was taken by him from the accused and the same repaid. Not only that affidavit has been produced but the defence has taken care to examine the Notary Public Shri Shiv Shanker Advocate before whom the affidavit was sworn by the decoy and two witnesses who have identified the decoy and on whose identification this particular attestation was done by the Notary Publice after getting thumb impression of the decoy on each page. 33. The decoy has not disowned this affidavit altogether but had his reservations. This Ex. D/2 is on stamp paper and not on an ordinary paper. Moreover, right from the time of purchase of stamp papers it shows an entry that it was purchased either by or for Labh Singh son of Jagwant Singh on 29 4.79, the very day on which the affidavit was sworn in. 34. In this affidavit the decoy states that he was conversant with Mahendra accused who was Audit Inspector and he took a loan of Rs 300/-from him. Labh Singh then states that on 21.10.1972 he was going to the house of Mahendra Singh Inspector for repayment of Rs. 300/- back and at that time Ajmer Singh and Rup Singh prosecution witnesses met him alongwith one more person Ajmer Singh and Rup Singh asked him what for he was going and then he told them that he was going to the house of Mahendra Singh. They went to the house of accused and paid Rs. 300/- to Mahendra Singh but before that he was asked by Ajmer Singh and Rup Singh and one other person to give the notes to Ajmer Singh first and then they were given back to Mahendra Singh. He was threaened by those persons that he should not disclose the story of loan and should put impression. 35. Thus the decoy Labh Singh in this affidavit made a clean breast of himself and said that in fact the amount of Rs. 300/- was not given as bribe but it was a repayment of loan. The affidavit bears the seal of Notary Public on both pages and it contains the thumb impression of Labh Singh. 35. Thus the decoy Labh Singh in this affidavit made a clean breast of himself and said that in fact the amount of Rs. 300/- was not given as bribe but it was a repayment of loan. The affidavit bears the seal of Notary Public on both pages and it contains the thumb impression of Labh Singh. Labh Singhs thumb impression has also been obtained at the time of identification and these thumb impression are quite visible. I have made this observation because if any blurred thumb impression would have been there, then it would have been possible to say that the affidavit is fabricated or forged one. 36. Labh Singh has not denied the thumb impressions and has come up with the story which will have to be considered a little later. The affidavit it typed one and Notary Public Shiv Shanker has put his seal both of swearing and of Notary on it. I have mentioned the details of all these in order to show that there is an element of genuineness in this affidavit and prima facie subject to discussion of other evidence, the affidavit cannot be brushed aside as fabricated document produced by the defence for supporting the false defence. 37. It would be interesting here to mention what Labh Singh has to say about this affidavit when confronted with the affidavit, Labh Singh could not dare to deny it altogether. His story was that the two witnesses namely, Karan Singh Sardara Ram who identified him got his thumb impression on a paper and he did put it, but he has not sworn an affidavit Ex. D/2 read out to him. When he was questioned why he did not complain against the persons who got his thumb impressions, he replied that he had no suspicion against them and therefore there was no occasion to make a complaint against these persons. The interesting aspect of the story which he has given as explanation is that Karan Singh and Saradara Ram met him 5-6 months after the incidents and told him that they would get his account clear. He further told that he put thumb impressions on a paper but did not read what was written on it. The interesting aspect of the story which he has given as explanation is that Karan Singh and Saradara Ram met him 5-6 months after the incidents and told him that they would get his account clear. He further told that he put thumb impressions on a paper but did not read what was written on it. The most significant important and crucial admission made by the decoy Labh Singh is:- ^^dkxt rks ,sls gh Fks tSls eq>s fn[kk, tk jgs gSaA** It is pertinent to note here that this witness says that if he would have read over the papers then he would not have put the thumb impressions. The statement of the decoy Labh Singh read as a whole makes it clear that he put the thumb impression on Ex. D.2 He further admitted that the document was written one and was Ex. D/2, because he says that it was similar to it, but thereafter he takes a samer sault and states that he is not the author of the language A to B written on this document Ex. D/2. 38. The above affidavit has been proved by Shiv Shanker Notary Public and examination of witnesses Sardararam and Shiv Shankar. It may be that the statement of these witnesses and the affidavit read as a whole may create a doubt about the truthfulness of the entire story unfolded by the defence, but a doubt about the defence version can never be equated with the doubt about the prosecution case. Whereas a doubt in prosecution case proves fatal resulting in acquittal of the accused, the doubt in the defence case may be lead to conclusion that the defence has not proved its case beyond reasonable doubt. Whereas a doubt in prosecution case proves fatal resulting in acquittal of the accused, the doubt in the defence case may be lead to conclusion that the defence has not proved its case beyond reasonable doubt. In Rameshwar Prasad Trivedi vs. State of Rajasthan(l) It was held as under : "The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions-(l) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mensrea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial-(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by S. 84 of the Indian Penal Code; the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings-; 3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mensrea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharges." The latest decision of the apex court in Bansilal Yadav vs. State of Bihar (3) makes it clear that admission of the accused regarding the acceptance of taking the money or finding of money from his custody would not relieve the prosecution of its burden to prove the prosecution case. Their Lordships of the Supreme Court observed as under:— "Before presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained or has agreed to accept or attempted to obtain for himself any gratification other than legal remuneration etc. Their Lordships of the Supreme Court observed as under:— "Before presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained or has agreed to accept or attempted to obtain for himself any gratification other than legal remuneration etc. If the accused when examined under S. 313 of the Code of Criminal Procedure with reference to the circumstances appearing against him in evidence, only stated that currency notes were thrust in his pocket, that statement by itself without anything more is not sufficient to satisfy the necessary ingredients of Section 4(1) that accused accepted or obtained to obtain, any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining, or agreeing to accept or attempting to obtain is a voluntary act. In the statement of the accused, this element of voluntary acceptance is missing. Therefore, the statement of the accused by itself in the facts and circumstances of this case and especially the language used cannot provide the necessary factual basis or facts situation which must exist before presumption can be raised. In fact accused denied having accepted bribe and stated that he was the victim of malevolent act of Naushad in thrusting marked currency notes in his pocket. This statement will not show acceptance of illegal gratification and the High Court in error in raising the presumption under Section 4". However it is not necessary to discuss all other cases because as laid down in the latest case Bansilal Yadav vs. Slate of Bihar (Supra) the burden always lies on the prosecution and even if it is found that the accused is in receipt of money, then it is further necessary that the prosecution should show that it was voluntary and conscious act on the part of the accused. Again even in those cases, presumption cannot be raised under sec. 4 where plausible explanation comes from the side of the accused which cannot be termed to be false and fabricated altogether and can be safely be placed in the jacket of reasonable and plausible explanation and then the accused and the accused alone can get benefit of doubt. 38. Again even in those cases, presumption cannot be raised under sec. 4 where plausible explanation comes from the side of the accused which cannot be termed to be false and fabricated altogether and can be safely be placed in the jacket of reasonable and plausible explanation and then the accused and the accused alone can get benefit of doubt. 38. In the instant case, I have examined relevant point of the testimony of the witnesses and I have further noted that the interwoven relationship of decoy Labh Singh with Ajmera Singh who are none-else than the brother of Rup Singh gives support to the defence theory that these were the persons against whom bailable warrants were issued by the department cocerned on the basis of the complaint lodged by the accused. They were to find out some opportunity to settle the score, and found it to be Gold sent golden opportunity. The character of Labh Singh decoy as depicted clearly shows that it is difficult to believe that after a person who becomes the decoy in a trap case will fall into the trap and put thumb impression before the Notary Public without knowing what is written on the affidavit. This is too tell a claim to be accepted. The affidavit of Labh Singh has given a decisive death blow to the prosecution case and even after entertaining doubts about the truthfulness of the drama narrated in affidavit, a lurking suspicion and a "doubtful doubt" cannot be ruled out in the prosecution balcon, the gas from which has leaked out by this pin prick affidavit. This is a tragedy that the learned Sessions Judge has not choosen to give due importance to this vital aspect of the case although Shri Shiv Shanker, the Notary Public has only corroborated and proved the story which has been indirectly admitted by Labh Singh. 39. The result of the above discussion is that this appeal succeeds and the accused is acquitted of all the charges paased against him under section 161 I.P.C. read with section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act as the entire prosecution story is doubtful in view of the plausible and reasonable defence put up by the accused which has remote element of genuineness, though it might not have been proved beyond reasonable doubt. The accused is on bail. The accused is on bail. He need not surrender to his bail bonds. 40. Before parting with the case, 1 must mention that this is one of those typical cases where I am giving benefit of doubt to the accused even though I have got moral conviction contrary to it. I have devoted anxious moments to persuade myself to act on moral conviction but on a thoughtful weighment of Moral conviction vs. Legal Proof, I have failed to persuade myself to substitute Moral conviction in place of Legal Proof as in the ultimate analysis, Moral Conviction is leckable name of legal conjecture. 41. An able Public Prosecutor might have put some new facts of the case and made certain strong points of prosecution patent, which might be otherwise latent, in an exparte hearing. 42. In such a critical balanced situation, the absence of assistance by the prosecution agency was so serious that I wonder why inaction of this serious nature, should not be taken note of by the Government, more so in a case of Anti Corruption Prosecution, as in Public eyes the delicate thin line between "Innotion & Corruption" cannot be antiphased by nacked eye except with a microscope. If it is yet another trap, for getting out of a trap, in a trap case, can only be known by careful enquiry by the concerned authorities ? Why this Court hope that there meaningful observations would not languish and remain unattended abating the inaction and lethargy of prosecution in the conduct of this appeal. May this court except that the Anti-Corruption Departments prosecution agency in the High Court, would not commit such a serious loose of non-appearance and offering "walk over" to the accused in future and take both preventive and punitive steps to stop and halt it for future by effectively ensuring "So far and no more".