Judgment Yadunath Sharan Singh J: This appeal is directed against the judgment and order dated the 26th February, 1979, passed by Shri Shyam Nandan Prasad Verma, Special Judge (C.B.I.), Patna, in Special Case No 6 of 1976 by which this appellant has been convicted for offences under sections 161 of the Indian Penal Code and 5 (l) (d) read with 5 (2) of the 'Prevention of Corruption Act, and has been sentenced' to undergo rigorous imprisonment for two years under section 161 of the Indian Penal Code and two years with a fine of Rs. 200/-, in default, to undergo rigorous imprisonment for six months under section 5 (1) (d) read with 5 (2) of the Prevention of Corruption Act, and the sentences were ordered to run concurrently. 2. The prosecution case, in short, is that Basudeo Prasad (P.W 6) who supplied milk to the appellant stopped supplying milk since the 11th March, 1976, due to non-payment of price where of. It was alleged that on the 21st March, 1976, the appellant went to the house of Basudeo Prasad (P.W.6.) in his absence, abused his wife and in the meantime Basudeo Prasad arrived and he was taken by the appellant to the R.P. F. Post at Platform No.1 of the Patna Junction, Kanhaiya La1 Gond (P W. 8), the Sala of Basudeo Prasad, approached the appel1ant for release of the latter On bail on which the appellant was alleged to have demanded a sum of Rs. 1000/- as bribe which, ultimately was settled at Rs.400/-. to be paid in two instalments-first Rs. 200/- was to be paid by the noon of the 21st March 1976 and the second within two to three days for distribution amongst the staff. Thereafter Kanhaiya Lal Gond (P.W.8) filed a complaint before the C.B.I. On the 21st March, 1976 A trap party headed by Sri S. D. Jha (P.W 22) was organised. Kanhaiya Lal Gond (P.W.8) gave Rs. 200/- in II G.C. notes (one of Rs. 100/-and ten of Rs. 10/each) to the appellant who took them in right hand, counted with same hand and put in the left upper pocket of his bush shirt. On getting the signal from P.W.10 Balram Choudhary, members of the trap party rushed into the office room of the appellant, challenged him and recovered the tainted notes from the upper pocket of the bush-shirt. Another sum of Rs. On getting the signal from P.W.10 Balram Choudhary, members of the trap party rushed into the office room of the appellant, challenged him and recovered the tainted notes from the upper pocket of the bush-shirt. Another sum of Rs. 330/- and some other papers as per the seizure list were also recovered from the same pocket. The appellant was taken to the nearby G.R.P.S. which is at a distance of about 150 steps from the R.P. F. office and the fingers of the right hand of the appellant and the upper pocket of the bush-shirt were dipped in a chemical solution which turned pink. A seizure list (Ext. 5/ 3) was prepared. P.W.22 investigated the case for about two months and handed over charge of the case to P.W.28 B.P. Srivastava on the 24th May, 1976. P.W.28 examined some witnesses and obtained sanction order (Ext. 1) from the Chief Security Officer, R.P,F.) Calcutta, and submitted chargesheet on the 31st December, 1976. 3. The appellant was put on trial and was convicted and sentenced as aforementioned. 4. The defence of the appellant was that P.W.6 Basudeo Prasad never supplied milk as alleged and there was no occasion for the appellant to be annoyed with Basudeo Prasad. Both P.W.6 Basudeo Prasad and his brother-in-law (sala) P.W.8 Kanhaiya Lal Gond are veteran criminals and have been proseccuted several times in Railways as well as other crimes. 'The appellant, in his rounds, caught Basudeo Prasad in the Railway Yard and arrested him for an offence under section 122 of the Indian Railways Act. He was sent to R.P.F. office in custody of two R.P.F. constables. The appellant went to Rajendra Nagar Railway Station and Yard and after completing his rounds returned to Patna Junction Railway Station and forwarded Basudeo Prasad to G.R.P.F. office with his report (Ext. 10) which was received by Sri Niwas Dwivedi, (Officer-in-charge, G.R.P.S. (P.W.23) at 6.30P,M. (18. 30 hours) on the 21st March. 1916 vido Station Diary entry No. 686 dated the 21st March, 1976, of G.R.P.S (Ext. 6/6). The appellant thereafter resumed his seat in the R.P.F. office and till 8 P.M., he distributed duties to 25 R.P.F. staff which would appear from the Station Diary entries dated the 21st March, 1976, made by the appellant in the regular course of his business. 5. 6/6). The appellant thereafter resumed his seat in the R.P.F. office and till 8 P.M., he distributed duties to 25 R.P.F. staff which would appear from the Station Diary entries dated the 21st March, 1976, made by the appellant in the regular course of his business. 5. The defence of the appellant further was that P.W.22 S.D. Jha had seized his diary on the 22nd March, 1976-vide Ext. 5/2 immediately after the arrest of the appellant and, hence, the sanctity of the entries of the diary cannot be questioned. 6. Further defence of the appellant was that the allegation of demand of bribe from P.W.8 Kanhaiya Lal Gond is absolutely false, Kanhaiya Lal Gond was aggrieved from the appellant due to the prosecution of this witness and also his brother-in-law, Basudeo Prasad (P.W.6) earlier and, hence, he (P.W 8) and P.W.10 Balram Choudhary, a Sub-Inspector in the C.I D. Police, Bihar hatched out a plan to implicate the appellant and with that design he filed a complaint petition (Ext.2) before the Superintendent of Police,. C.B.I. on the 21st March, 1976 at 4 P.M. with a false allegation against the appellant P.W.22 Shri S.D. Jha, D.S.P., who was then incharge in absence of the Superintendent of Police, C.B.I., had some axe to grind against the appellant due to his failure to Oblige him in R.C. Case No. 6/ 1972 State versus Rameshwar Prasad who was the predecessor of the appellant as Officer-in-charge, R.P.F., Buxar. P.W.22 Shri S.D.Jha switched into action to lay a trap and organised a trap party consisting of some C.B.I. personnel, P.W.14 S.N. Pandey, who was himself in trouble and under suspension for three years in a C.B.I. case of bribery against him and P.W.12 P.L. Bose who was also taken from Customs Department and he, according to his own showing, had acted on the dictates of the C.B.I. people. 7. The defence of the appellant further was that, in the execution of his plan to rope in the appellant, P.W.8 Kanhaiya Lal Gond came into R.P.F office on the 22nd March, 1976, and placed some currency notes on the table of the appellant and the appel1ant out of annoyance threw it with fingers of his right hand which fell down under the table and got spread: A signal was given. P.W.22 S. Do Jha entered into the office, seeing the not eslying on the ground picked them up hurriedly with his hands and thereafter as admitted by him and other trap witness he put his hands in the upper pocket of the bush-shirt of the appellant and took out Rs. 3.30/- and some other papers due to which the powder on the notes came In touch with the petitioner's bush-Shirt pocket and naturally, when dipped In sodium solution turned pink. The appellants case, in short, is that there was neither any reason for him to demand bribe nor be demanded bribe nor any bribe money was given to the appellant nor did he take any money from P.W.8 Kanhaiya Lal Gond and put the same in the pocket of the appellant ncr was any tainted G. C. note recovered from his pocket by P.W.22 S.D. Jha who has said so because of his annoyance with the appellant and his zeal to see that the object is achieved any how by hook or by crook. 8. The prosecution examined altogether 28 witnesses. P.W.4 Nar Bahadur, P.W.5 Siasaran Singh, P.W.13 Sat Narain Rai, P.W.19 Kalika Prasad Singh were tendered witnesses. P.W.1. P.K. Bhowmik was a formal witness who typed the sanction order. P.W.2 N.C. Jha conducted the secret verification of the complaint, P.W.8 is the complainant Kanhaiya Lal Gond. P.W.6 was Basudeo Prasad for whom Kanhaiya Lal Gond had given illegal gratification to the accused. P.W.12 P.L. Bose and P.W.14 S.N. Pandev were two officers of the Customs Department who acted as independent witnesses of the trap party. P.W.24 was Rira Devi, wife of P.W.6 Basudeo Prasad who had followed her husband while he was being taken in custody by appellant. P.W.18 Mulla Singh Yadav was a staff of the Patna Medical College Hospital who had produced Labour Room Register• (Ext.8/1) containing the relevant entry (Ext.8) in respect of Admission and Discharge of P.W.24 Rira Devi. P.W.25 was Dr. Rekha Sinha, House Surgeon of the Patna Medical College Hospital who issued Discharge Certificate (Ext.12) in favour of P.W.24 Rira Devi. P.W.27 was Dr. D. Singh who proved the maintenance of Labour' Room register. P.W.15 Anil Kumar Banerjee proved 'the entries (Exte 6 of 6/5) of the R.P.F. Post Diary in the pen or the appellant. P.W.25 was Dr. Rekha Sinha, House Surgeon of the Patna Medical College Hospital who issued Discharge Certificate (Ext.12) in favour of P.W.24 Rira Devi. P.W.27 was Dr. D. Singh who proved the maintenance of Labour' Room register. P.W.15 Anil Kumar Banerjee proved 'the entries (Exte 6 of 6/5) of the R.P.F. Post Diary in the pen or the appellant. He also proved the carbon copy of the F.I.R. (Ext 7) leading to the arrest of P.W.6 Basudeo Prasad. P.W.16 Lal Mohan Chaudhary was a formal witness who proved the handwriting of P.W.10 on the complaint (Ext. 2/1), P.W.17 Bal Mukund Verma was P.A. to the District Magistrate, Patna, who received the complaint (Ext.2.) from Rira Devi on 21.3.1976. P.W.20 Naresh Kumar Singh and P.W.21 Subedar Singh were hostile witnesses who were to depose on the point of arrest of P.W.6 Basudeo Prasad. P.W.23 Sri Niwas Dwivedi was the then Officer in-charge of G.R.P.S. Patna who had enquired into the allegations against Basudeo Prasad who was facing trial under section 122 of the Railway Act. This witness had submitted report (Ext 3/2) for discharge for Basudeo Prasad. He had also proved the entries (Exts.6/6 to 6/9) of the Station Diary of the G.R.P.S. Patna P.W.28 B.D. Srivastava was the part 10. P.W.2 Inspector N.C. Jha, P.W.3 Inspector R. Hal, P.W.7 Inspector N.P. Singh, P.W.9 S.L. Dayaram Singh Yadav P.W.10 Balram Choudhary, P.W.11 Inspector Gulsan Kumar and P.W.22 S.D. Jha were members of the trap party. 9. The defence did not examine any oral witness but placed reliance on some documentary evidence. Exts. A to A/6 were commendation letters regarding good service of the appellant. Ext. B was Reward regarding good service of the appellant. Ext. C and C/1 were summons issued to the appellant. Ext D was the certified copy of the deposition of P.W.18 B.P. Singh (appellant) recorded in Special Case No. 20 of 1972 (State versus Rameshwar Prasad), Ext. D/1 was the certified copy of the deposition of P.W.Baidyanath Prasad in G.R. Case No. 2023/68, T.R. 952/73, Ext.F was the Railway Time Table, Exts. F to F/2 are certified copies of F.I. Rs, of Kadamkuan Police Station, Ext, C is the certificate copy of the chargesheet in respect of F.I.R. (Ext. F.) 10. D/1 was the certified copy of the deposition of P.W.Baidyanath Prasad in G.R. Case No. 2023/68, T.R. 952/73, Ext.F was the Railway Time Table, Exts. F to F/2 are certified copies of F.I. Rs, of Kadamkuan Police Station, Ext, C is the certificate copy of the chargesheet in respect of F.I.R. (Ext. F.) 10. Being aggrieved by and dissatisfied with the Judgment and order of conviction and sentence pas5ed by the Special Judge, C.B.I. as aforementioned the appellant has preferred this appeal in this Court. 11. Learned Senior counsel Mr. Tarini Prasad, appearing for the appellant has formulated the following points for consideration in this case. They follows :- (1) Genesis-supply of milk by P.W.15 Besudoo Prasad to the appellant. (2) Demand of bribe on 21.3.1976 and settlement to pay Rs.200/-on 22.3.1976 (3) Demand of bribe on 22.3.1976 immediately before the alleged offer and acceptance. (4) Offer by P.W.8 Kanhaiyalal Good on 22.3.1976 at R.P.F. Office and acceptance by the appellant (5) Recovery from the appellant's bush-shirt. According to the learned counsel for the appellant, the presumption under section 4 of the Prevention of Corruption Act, will arise only after the prosecution proves its case on all the aforesaid five points beyond all reasonable doubts. According to him, law does not cast any onus on the accused to prove his innocence. It is enough if from the facts and circumstances appearing on the record the defence version appears to be probable. 12. In regard to the fir, t point if the genesis of the case, the learned counsel for the appellant has referred to the evidence of P.W.6 Basudeo Prasad, P.W.24 Hira Devi, wife of Basudeo Prasad, P.W.20 Naresh Kumar Singh and P.W.21 Subedar Singh. According to him, though the Investigating Officers, namely, P.Ws. 22 and 28 have tried to be witnesses on this Point, they have miserably failed, I have gone through the evidence of the above witnesses and I find that Basudeo Prasad had no milk, business and was not arrested from his house in the morning of the 21st March 1976, due to annoyance over stoppage of milk supply. Rather he was arrested in the Railway Yard at 11 A.M. and was forwarded to the G.R.P.S. same day) i.e. the 21st March 1976 at 6,30 P.M. P.W.6 Basudeo Prasad bas stated in. Rather he was arrested in the Railway Yard at 11 A.M. and was forwarded to the G.R.P.S. same day) i.e. the 21st March 1976 at 6,30 P.M. P.W.6 Basudeo Prasad bas stated in. paragraph 1 of his evidence that he was a rickshaw puller which is corroborated by the evidence of P.W.24 in paragraph 16 The first point in P.Ws.) 22, and 26, who have been declared hostile has not supported the prosecution case that Basudeo Prasad had milk business and that he supplied milk to the appellant. In pargaraphs 1 and 13, P.W.20 has stated that he did not see any cow at the house of Basudeo although he has his garage near Basudeo's house, The evidence of P.W.24 in relation to the number of cows and the al1eged supply of milk to the appellant and the dues are inconsistent with the evidence of P.W.6 Basudeo Prasad himself. He has got no written proof in support of supply of milk as will appear from a perusal of his evidence in paragraphs 32, 33, 34 and 35 as also the evidence of P.W.24 in paragraph 22 P.W.23 has stated in his evidence that Basudeo did Dot tell on being questioned that he was arrested due to the demand of the price of the milk from the appellant. P.W.21 Subedar Singh has stated in his evidence that he has his house 30 to 40 ft. from the house of Basudeo Prasad. In paragraph 18 of his evidence, this witness has stated that he never saw Basudeo Prasad having a cow or a buffaloe. The evidence of the Investigating Officers, namely, P.W.'s 22 and 28 are of no substance, as they have said that, during the investigation of the case, they had seen some cow near about the house of Basudeo Besudeo, It is difficult to infer from these statements of the investigating officers that on the relevant date Basudeo had business in milk supply. On the point of arrest at houses the evidence of P.W.6 and P.W.34 is contradictory to each other. On the other hand, in paragaph II of his deposition, P.W.12 S.N. Dwivedi, Officer in-charge, G.R.P.S., has stated that P.W.6 Basudeo Prasad was taken to Railway Yard at 11 A.M. If he was arrested from his house, there was no sense in taking him to the yard. In report (Ext. On the other hand, in paragaph II of his deposition, P.W.12 S.N. Dwivedi, Officer in-charge, G.R.P.S., has stated that P.W.6 Basudeo Prasad was taken to Railway Yard at 11 A.M. If he was arrested from his house, there was no sense in taking him to the yard. In report (Ext. 10) none was cited as a witness to have seen Basudeo Prasad with the appellant in the yard. P.W.30 in paragraph 1 and P.W.21 in paragraph 2 of their evidence have stated that Basudeo was seen in the Railaway Yard. P.W.6 himself has admitted that he was prosecuted several time in criminal cases and a perusal of his evidence in paragraph 45 will show that he was chargesheeted at the instance of the appellant and he was a veteran criminal and sold wine for which also he and his wife were prosecuted. In paragraph 60 of his evidence, he has admitted that he was challaned on the 21st March, 1976 under section 122 of the Railway Act. 13. Thus, from what has been stated above, it is crystal clear that P.W.6 Basudeo Prasad had no milk business and that he was arrested in the Railway Yard at 11A.M. 14. Now the second point urged on behalf of the appellant is with regard to the demand of the bribe on the 21st March 1976 from Kanhaiya Lal Gond (P.W.8). The learned counsel for the appellant as referred to the evidence of P.W.2, P.W.6. P.W.8, P.W.10 and P.W.23 on this point. P.W.2, N.C. Jha a C.B.L Inspector appears to be a highly interested witness being a C.B.I. Inspector- He is utilized in all the trap cases as admitted by him in paragraph 15 of his evidence. The following salient feature shows that his case of over-hearing demand of bribe on the 21st March, 1976, at 7.30 P.M. cannot be true. In pragraph 53 of his evidence he has stated. "Jis SAMAY MAIN CAYA US SAMAY R.P.F. ME ANAYA MULZIM RAHTE TO MAIN KANHAIYA SE BAAT NAHIN KARWATA." Ext. 5/2, the entries in the diary of the appellant written en the 21st March, 1976, and seized by P.W.22 On the 22nd March, 1976 after arrest of the appellant shows that on return to the R. P.F. office at 16. "Jis SAMAY MAIN CAYA US SAMAY R.P.F. ME ANAYA MULZIM RAHTE TO MAIN KANHAIYA SE BAAT NAHIN KARWATA." Ext. 5/2, the entries in the diary of the appellant written en the 21st March, 1976, and seized by P.W.22 On the 22nd March, 1976 after arrest of the appellant shows that on return to the R. P.F. office at 16. 48 hours the appellant distributed duties to 25 R.P.F. staff who left the office at 8 P.M. So, the presence of a number of persons of R.P.F. office at about 7.30 P.M., the time of the verification by P.W.2 cannot be ruled out. P.W.2, in his evidence in paragraph 59, has stated that at that time Basudeo was not in the R.P.F. office. P.W.23 has stated that he was received at G.R.P.S- at 6.30 P.M. So when at 7.30 P.M. P.W.2 visited the R.P.F. Office, the absence of Basudeo should have led him to think about the genuineness of the claim of Decoy P.W.8 Kanhaiya Lal Gond. His not caring to know the whereabouts of Basudeo is so unnatural that it leads to the only conclusion that there was no verification as alleged and the report in this behalf was a table work. Coupled with this, the statement of P.W.8 that he went to the railway platform for the first time' on the 22nd March, 1976, completely demolishes the claim of P.W.2 regarding the alleged demand On the 21st March, 1976. 15. Paragraph 80f the evidence of P.W.6 shows that the appellant himself suggested to P.W.8 Kanhaiya Lal Gond to pay Rs. 200/- next day by noon. It nowhere says that Kanhaiya expressed his inability to pay money On the 21st March, 1976, and wanted time till the 22nd March, 1976, noon to arrange money. It further says that the appellant threatened to implicate him in a case of theft of Railway properties by planting some railway article in case bribe money was not paid by noon of the 22nd March, 1976. This falls to be a ground by the very fact that Basudeo Prasad was forwarded by the appellant the very same day i.e., the 21st March. 1976, at 6.30 P.M. to the G.R.P.S. and P.W.23, in paragaraph 13 of his evidence, has said that after forwarding the accused R.P.F. becomes powerless and could not do anything else. This falls to be a ground by the very fact that Basudeo Prasad was forwarded by the appellant the very same day i.e., the 21st March. 1976, at 6.30 P.M. to the G.R.P.S. and P.W.23, in paragaraph 13 of his evidence, has said that after forwarding the accused R.P.F. becomes powerless and could not do anything else. If the appellant expected bribe money by noon of the and March, 1976 he could not have forwarded the accused to the G.R.P.S. on the 21st March, 1976, itself, thus, loosing all hopes of getting bribe money. 16. In paragraphs 8 and 10, P.W.6 has stated that he had gone to appellant on the 21st March, 1976, at 2 P.M. when the appellant demanded bribe and a settlement was arrived at to pay Rs.200/-by noon next day and the balance within two to three days. He is contradicted on this point by both P.W.s 8 and 10. P.W.8, in paragraph of his evidence; has stated that he went to the appellant and asked to release Basudeo Prasad and. On his refusal to do so, he went back home but he doe not say about any talk of bribe demand or settlement. Then he says that after he returned home, Balram (P.W.10) and his sister (P.W.24) went far release of Basudeo Prasad when pro bably Rs 1000/-was demanded by the appellant from his sister as was told to him by his sister. His sister (P.W.24) has not said so. P.W.10 Balram has also not said so. P.W.8 further stated that he and Balram (P.W.10) went thereafter when the appellant demanded only Rs. 200/-. He does not say about the demand of Rs. 400/-to be paid in two installments on the 22nd March by noon and the other within two or three days. 17. In paragraph 6, P.W.10 says that when the appellant refused to release Basudeo. Prasad he went' back to his house. He says that Kanhaiya told him about his bargain. P.W.8 docs not say that he had told this to P.W.10 and hence this becomes a hearsay and inadmissible in evidence At the end in paragraph 9. P.W.8 has stated that the appellant had not demanded money from him. Prasad he went' back to his house. He says that Kanhaiya told him about his bargain. P.W.8 docs not say that he had told this to P.W.10 and hence this becomes a hearsay and inadmissible in evidence At the end in paragraph 9. P.W.8 has stated that the appellant had not demanded money from him. In paragraph 28, he says that he went to the platform for the first time on the 22nd March, 1976 which completely demolishes the prosecution case of demand of bribe by the appellant from P.W.8 Kanhaiya Lal Gond either on the 21st or on the 22nd March; 1976. So P.W.8 had enough reasons to be annoyed with the appellant and for that reason he hatched out a plan 10 implicate him falsely and was helped in this game by the C.B.I. which is apparent. In paragraph 31 of his deposition, this witness has stated that he wrote a petition of complaint at the dictates of the C.B.I. P.W.10 has not said that Rs. 400/- was settled in his presence and the appellant had asked Kanhaiya to pay Rs. 200/- by noon on the 22nd March, and the balance within two three days later P.W.10 is a Sub-Inspector in the C.I D If the demand of bribe was correct in normal course, he would have reported the matter to•hi5 department 18. Hence, the prosecution witnesses, namely, P.W.s 6,8 and 10, have failed to prove any demand of bribe by the appellant from P.W.8 Kanhaiya Lal Gond on the 21st March 1976, as alleged by the prosecution. 19. The third point which has been formulated by the learned counsel for the appellant is with regard to the demand of bribe on the 22nd March, 1976. The learned counsel has submitted that, on this point, there is absolutely no evidence to show that the appellant demanded bribe on the 22nd March, 1976. The decoy P.W.8 Kanhaiya Lal Gond, in paragraph 9 of his evidence has clearly stated that the appellant had not demanded money. In that view of the matter, there is no evidence to show that the appellant ever demanded bribe money from the decoy P.W.8 Kanhaiya Lal Gond. 20. In regard to point no. 40 i.e., offer of bribe money and acceptance by the appellant the learned counsel for the appellant has referred to the evidence himself P.W.8. Kanhaiya P.W.10 P.W.2. In that view of the matter, there is no evidence to show that the appellant ever demanded bribe money from the decoy P.W.8 Kanhaiya Lal Gond. 20. In regard to point no. 40 i.e., offer of bribe money and acceptance by the appellant the learned counsel for the appellant has referred to the evidence himself P.W.8. Kanhaiya P.W.10 P.W.2. P.W.11of the decoy Lal Gond, and P.W.14. On this point the most significant evidence is of the decoy himself In parapraph 17 of his evidence, P.W.8 Kanhaiya Lal Gond has stated that he kept the money on the table of this appellant hand on the floor which he threw with his It is to be remembered that, according to the plan drawn up on the 22nd March, 1976, earlier in the C.B.I. office it was arranged that P.W.10 -Balram would give signal after completion of the transaction and then members of the trap party would enter the R.P.F. office. P.W.10 Balram himself, as said by him, did not see the transaction although he was at the door. He acted on the signal of P.W.8 who after placing the money on the table gave signal. So, Balram gave signal thinking on Kanhaiya's signal that transaction was complete and on Balram's signal the other members of the' trap party who were far behind were led to believe that the notes had passed from P.W.18 to the appellant. Most of the trap witness have admitted that they did not see the actual transaction. Only P.W.'s 2, 11 and 14 on their zeal have claimed to have seen Kanhaiya giving notes'. The appellant accepting them by right hand and counting with right hand fingers and keeping in the Bush shirt pocket. Out of the them, P.W.2 has admitted that he is a witness in all the trap cases. P.W.14 is a victim of C.B.I. and a man of questionable - character. He has admitted in his evidence that he was under suspension for- three years in a case of bribery at the instance of the C.B.I. P.W-12 another colleague of P.W.14 from the Customs Department, has frankly admitted that they acted as the C.B.I. officers wanted them to act. Moreover, in the seizure list (Ext. - 5/3) P.W.'s 2 and 11 are not mentioned as persons to have witnessed the transactions. 21. Moreover, in the seizure list (Ext. - 5/3) P.W.'s 2 and 11 are not mentioned as persons to have witnessed the transactions. 21. The fifth and the last point urged on behalf of the appellant is with regard to the recovery of the money from the appellant. In this connection, evidence of P.W.s 2 3, 7, 9, 11, 14, 22 and 28 has been referred to. No independent witness has been examined in this case. P.W.3, in paragraph 35 of his evidence, has stated that 'JIS SAMAY RAIDING PARTY PATNA RAILWAY PLATFORM PAR PAHUCHI US SAMAY R.P.F POST PAR SIRF EK BIHAR SIPAHI THA.'• In paragraph 29 of his evidence, P.W.7 has stated that "OFFICE KE BAHAR SIPAHI THA." In paragraph 14 of his evidence, P. W.14 S.N. Pandey has stated that "TRAIN KE AANE KE SAMAY KAFI BHIR PLATFORM PAR THA.R.P.F.KE NAJDIK LOGON KA ANAJANA HO RAHA THA,]AB MAINO BENCH SE UTHA US SAM A Y BHI LOGON KA AWGAMAN JARI THA In paragraph 22 of his evidence P.W.28 has stated that' TRAIN JABTAK KHTJL NAHIN JATI HAI, BHIR RAHTI HAI PLATFORM PAR R.P.F. POST KE DARWAJA KE SAMNE BHI BHIR HOTI HAI AUR KAFI HULLA RAHTA HAL" In paragraph 41 of his evidence. P.W.14 has stated "MERE BENCH-PAR UTHANE KE CHAR PANCH MINUTE BAD. BALRAM SIGNAL DIYE" which shows that the demand and acceptance was done while the people were passing through near the R .P. F; Post which is on platform no. 1. 22. Ext. E shows that 328 DN DNR Fast Passenger train from which the appellant got down had left the Patna Junction station at 12.32 P.M. on the 21st March) 1976, and, as such, it is difficult rather impossible to accept the prosecution case that the appellant demanded bribe money specially when there was no occasion for the same as Basudeo Prasad had already been forwarded on the 21st March. 1976. In paragraph 64 of his evidence, P.W.22 has stated that Gulshankumar. (P.W.11), N.C. jha (P.W.2) S.N. Pandey (P.W.14) and P.L. Bose (P.W.12) were warned to see the actual transaction, if possible. However, only P.Wo's 2, 11 and 14 have claimed to be witnesses on the actual transaction. Their evidence on the charge of offer and acceptance is not acceptable. 23. In paragraph 64 of his evidence, P.W.22 has stated that Gulshankumar. (P.W.11), N.C. jha (P.W.2) S.N. Pandey (P.W.14) and P.L. Bose (P.W.12) were warned to see the actual transaction, if possible. However, only P.Wo's 2, 11 and 14 have claimed to be witnesses on the actual transaction. Their evidence on the charge of offer and acceptance is not acceptable. 23. The evidence of P.W.9 in paragraph II is that the R.P.F. Post room is 9' 10" x 9' 10" and the evidence of P.W.3 in paragraph 3.5 is that the R P F. office room had only one door and there was no window in it. The evidence of P.W.28 in paragraph 20 is that the door is 3-3 1/2 ft wide. The evidence of P.W.28 further is that the door is facing south. In paragraph 21 of his evidence, P.W.2 has. said that "MUDA-' LEH APNE. KURSI PAR DAKHIN ORE MUNH KIYE BAITHE THE". The evidence of P.W.2 in para 20, P.W.3 in para 17, and P.W. 12 in paragraph 15 is that Balram Chaudhary (P.W.10) was standing at the door of the R.P.F. post obviously facing north. whereas P.W.'s 2, 11 and 14 were standing near a fixed bench on the platform. In that view of the matter, it is improbable .that P.W. a 2, 11 and 14 could have seen the actual transaction specially at a time when several persons were passing through the door of the R.P. F. post. 24. P.W.11 in pargraph 5 has stated that the party took its position after the appellant got down from the train and went to his room. P.W.2 in paragraph 19 and P.W.22 in paragraph 18 of their respective evidence have contradicted on the point of taking position of the trap party by saying that the trap party took-its position from before the appellant could arrive. P.W.22 in paragraph 64 of his evidence has stated that 'TRAIN ANE KE BAD MAINSABHI RAIDING PARTYKE MEMBER KO ALER T KAR DIVA R.P.F. POST SE 20-25 KAD. AM PURAB TARAF MAIN APANE PARTY KO AI'ERT KIVA' which completely rules out the possibility of witnesses having seen the actual transaction. 25. The prosecution case is that the appellant got down from DNR.HWH Fast Passegner. Ext E, the time table, shows that arrival of the train at 12.22 P.M and its departure at 12. AM PURAB TARAF MAIN APANE PARTY KO AI'ERT KIVA' which completely rules out the possibility of witnesses having seen the actual transaction. 25. The prosecution case is that the appellant got down from DNR.HWH Fast Passegner. Ext E, the time table, shows that arrival of the train at 12.22 P.M and its departure at 12. 32 P.M The seizure list (Ext 5) shows the time of the seizure as 12. 25 P.M. The evidence of P.W. 2 in paragraph 20 is that the appellant entered in to his office and in paragraph 21 this witness has stated that the appellant took his seat on the chair. The prosecution has led evidence that after reaching the appel1ant in his office room, Kanhaiya Lal Gond also went inside the office room; saluted the appellant, took his position facing East in the office room, began talk with the appellant and after a few minutes took out the tainted notes from his under pocket, gave it to the appellant who counted and kept them in his left upper pocket. On signal of Bal Chaudhary, P.W.2 and P.W. 11 went inside the office room followed by other members of the trap party. The site plan shows that the distance between the railway line at platform no. 1 is not less them 25 ft To cover this distance of about. 50 feet, specially at the time of arrival of the train at Platform no. 1 at the Patna Junction will itself take Some time. It does not stand to reason as to how everything prior to the alleged recovery was complete within three minutes. I find' material contradictions in the evidence of the prosecution witnesses on the point of search and seizure. Moreover, there were several passengers available there but none of them has been examined in this case as a witness to the search and seizure and there is no explanation for their non-examination. 26. In this case) I find that the sanction order has been proved by the stenographer Sri Parimal Kumar Bhomik (P.W. 10 The sanctioning authority has not been examined and there is absolutely no evidence to show that the materials were placed before him or that he had applied his judicial mind. Non-examination of the sanctioning authority has seriously prejudiced the appellant. 27. P.W.2 S.D. Jha is the first investigating officer and, according to the evidence of P.W.28. Non-examination of the sanctioning authority has seriously prejudiced the appellant. 27. P.W.2 S.D. Jha is the first investigating officer and, according to the evidence of P.W.28. Shri S.D. Jha handed over the investigation to P.W.28 on the 24th May. 1976. P.W.28 has stated that "AISA INSTRUCTION HAI KI JO OFFICER TRAP KAREN WAHI. ONAHIN BANE, JO OFFICER TARP KARTA HAH USKO CASE MEN INTEREST LENA HI NAHIN" Shri S.B Jha, however) investigated the present case against the instruction only because he was grossly interested in making the case foolproof against 'the appellant. 28. Learned counsel for the appellant has taken much pain to argue before me very elaborately placing all the relevant materials on the record, I have already applied my mind to the submissions made by the learned counsel on the points referred to above and I have come to the conclusion with regard to the general of the case that the learned special Judge has wrongly come to the finding that the prosecution has proved the genesis of the case that Basudeo Prasad was selling milk to the appellant and that there had been some dispute with regard to payment of the price of milk. As a matter of fact, on a perusal of the evidence, I find that the prosecution has .miserably failed to I prove the genesis of the case On the point of demand of bribe by the appellant, I find that there is absolutely no evidence in the case to prove that there had been any demand by the appellant neither on the 21st nor on the 22nd March, 1976, in respect whereof relevant evidence have already been discussed. On this count also, I find that the learned Special Judge has not been able to come to a true finding that the prosecution has failed to prove the demand made by the appellant. On this count also, I find that the learned Special Judge has not been able to come to a true finding that the prosecution has failed to prove the demand made by the appellant. As a matter of fact, I find that from the evidence of the prosecution that there had been no demand at any stage of the Case by the appellant and the prosecution has hopelessly failed to bring the charge home to the appellant No doubt in this case, offer was made to the appellant by Kanhaiya Lal Gond which ha s been admitted by Kanhaiyalal Gond himself Though he has been declared hostile but coupled with other evidence it is evident that the offer was made by Kanhaiyalal Gond which was not accepted but was thrown by his right hand and in that process his right hand fingers had become tainted with the colour. With regard to the recovery of the money from the appellant, I have looked to the evidence in detail. In the facts and in the circumstances of this case, I am left with no option but to come to the conclusion that the money was not recovered from the pocket of the appellant ,but was thrown which was picked up by P.W. 22 who while picking out the same some papers along with a sum of Rs. 330/- was also picked out from the pocket. The materials on the record conclusively prove that the appellant had neither made any demand nor had he accepted the alleged bribe nor had lie kept them in his pocket. 29. In support of his contention, the learned counsel for the appellant has cited some decisions. The first one, is in the case of Sat 'Paul Vs. Delhi Administration which fully supports the case of the appellant. In that case, it was observed an fol1ows. …..But where the witnesses have poor moral fire and have to their discredit a heavy load of bad antecedents such as those of P.W.s. 1, 2, 7 and 8, having a possible motive to harm the accused who was an obstacle in the way of their immoral activities, it would be hazardous to accept their testimony) in the absence of corroboration on crucial points from independent sources. It was also observed "The above circumstance further lend assurance to the appellant's plea that hp had on several occasion, previously, reprimanded these witnesses for visiting the Railway Station for immoral trade, Even, according to the prosecution, the appellant, had rounded up Ramesh and party on the accusation that they were soliciting customers for their immoral business." In the instant case also, the evidence on the record shows that P.W.6 Basudeo and P.W.8 Kanhaiyalal Gond were prosecuted for Railway offences severed times and that the appellant had arrested P.W.6 in the railway yard and forwarded him the same Evening to the G. R. P. S. with his report on that charge much before the alleged passing of currency notes on the 22nd March, 1987. In this case, P.W. 6 Basudeo Prasad, P.W.6 Kanhaiya lal Gond an also P.W.4 Hira Devi have poor moral fibre and have to their discredit a heavy load of bad antecedents. P.W.10 Balram Chaudhary is also of the same nature. Beside the above there is no evidence on the genesis and point of demand as also the passing of' notes. It would not be unusual even for an honest officer to be frightened out of wits on being suddenly accused of bribe taking by a superior officer. In the case before the Supreme Court, it was further observed as follows ;- We cannot lose sight of the stark fact that he was an Inspector of the Anti-Corruption Staff of the Police He was the Architect of the Trap, and head of the raiding party. Being' deeply concerned with the Success of the case, he was also an interested witness. Not being an independent witness, his evidence could not furnish the kind of corroboration requisite in the circumstances of the case." Xx xx xx ... In law, the part of the evidence of the Panch witnesses who were thoroughly cross-examined and contradicted with their inconsistent, police statements by the Public Prosecutor, would be used or availed of by the prosecution to support its case. But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. These witnesses contradicted substantially their previous statements and as a result of the cross-examination their credit was substantially, if not wholly, shaken. But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. These witnesses contradicted substantially their previous statements and as a result of the cross-examination their credit was substantially, if not wholly, shaken. It was therefore, not proper for the courts below to pick out a sentence or two from their evidence and use the same to support the evidence of the trap witnesses" xx xx xx "Therefore, the possibility of the tainted notes having been implanted by DI Chand,. who appears to us a person with wit more and scruples less than the ordinary, cannot be ruled out" 30. The decision aforementioned completely supports the case of the appellant. P.W. 6, 8 and 10 were of low moral fibre prosecuted in several cases of railway crimes and interested in seeing the appellant removed from the way of their immoral activities. Trap witnesses were deeply concerned with the success of the case. 31. In the instant case, there is absolutely no independent witness to support the persecution case. In absence of any in dependent witness, it would not be safe to convict the appellant on such evidence which cannot be relied upon. 32. The learned counsel for the appellant has next cited the case of Ram Prakash Vs. State of Punjab wherein it was observed. Evidence of interested and partisan witness who are concerned in the success of the trap must be tested in the same way as that of any other interested witness. In a proper case the Court may look for independent corroboration before convicting the accused persons." Xx xx xx "...... We cannot overlook the fact as to why the appellant demanded illegal gratification on February 15, 1968, after he had already submitted a report on Fubruary 12 by verifying at the spot that the connection be given and that the .sanction had actually been accorded by the S. D. O. on February 13, 1968. " In the instant case; the prosecution evidence is that the appellant had already forwarded P.W.6 with his report to the G. R. P. S. on 21.3.1976 at 6.30 P.M. and P. W, 23 has stated that after forwarding the accused the officer becomes functus officio. There is no reason why the appellant would have demanded bribe On 21.3.1976 at 7. There is no reason why the appellant would have demanded bribe On 21.3.1976 at 7. 30 P.M. after having forwarded Basudeo one hour before and on the 22nd March, 1976, before the alleged offer and acceptance of bribe. 33. The learned counsel for the appellant has then cited the case of Sita Ram Vs. The State of Rajasthan3 wherein it was held as follow :- "In Case when the complainant became hostile and gave evidence against the prosecutions case of offering bribe and the charge of the gratification could not be proved but he was held guilty on drawing adverse inference on account of recovery of the alleged amount given as a bribe." Xx xx xx When the first two ingredients are proved by evidence then a rebuttable presumption arises in respect of the third ingredient. In a absence of the proof of the first two facts, the presumption does not arise. On mere recovery of certain money from the person of an accused with-out the proof of its payment by or on behalf of some person to whom official favour was to be shown the presumption cannot arise." Xx xx xx ..... ... So many jerks and jblts seem to have been given to the prosecution case by contradictory and hostile statement of the witnesses that good part of it had to be rejected by the High Court. In the background of the High Court's findings that it had not been proved that the appellant had demanded any bribe from Mohan La1, we do not consider it safe to sustain its finding on the point of payment of the bribe by the complainant to the appellant on the testimony of P.W.9 alone when the evidence of P.W.2 is not admissible on the point. The result is that n at only the story of demand of bribe by appellant from the complainant is not proved but even the story of payment of the money by the complainant is not established beyond ressonable doubt." Xx xx xx "On mere recovery of certain money from the person of an accused without the proof of its payment by or on behalf some person to whom official favour was to be shown the presumption cannot arise. In the instant case, the complainant has said that the appellant had not demanded and that he has put the' money only on table which was thrown away by the appellant. 32. The learned counsel for the appellant has next cited the case of Ragbir Singh Vs State of Punjab4 wherein it has been observed as follows :- They must curiously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe." Xx xx xx “ The evidence in regard to the search of the person of the appellant and the seizure of five marked currency note from him is, in the context of the other facts and circumstance of the case, not such as to inspire confidence and cannot be implicitly accepted." 33. Learned counsel for the appellant has next cited the case of Gulam Mahmood Vs. State of Gujarat wherein it was held as follows: - "The High Court based the conviction mainly on the ground that the marked notes were recovered from the person of the accused and that panch witness has spoken to the recovery of the money. In assessing the evidence of a witness the entire background of the prosecution "story should be kept in mind It is seen the complainant has no regard for truth and has preferring a false complaint about payment of bribe on 7.7.72 and making the present complaint after .ten days of the alleged demand cannot be ignored. In the circumstance, we do "not think that it was safe for the High Court to have the conviction" solely on the testimony of the Panch witness." 34. In reply to the decisions cited above, the learned counsel for the C.B.I. has tried his best to justify the conviction of this appellant mainly on the judgment of the trial court but he has not been able to reply successively on the points which have been raised on behalf of the appellant. 36. In reply to the decisions cited above, the learned counsel for the C.B.I. has tried his best to justify the conviction of this appellant mainly on the judgment of the trial court but he has not been able to reply successively on the points which have been raised on behalf of the appellant. 36. In view of the facts and circumstances stated above and on the strength of the decisions cited above, I differ with the findings of the learned Special Judge and find that the prosecution has miserably failed to prove the guilt of the appellant. 37 In the result, this appeal is allowed, and the conviction and sentence passed against the appellant set aside and the appellant is acquitted of all the charges levelled against him and discharged from the liability of the bail bond. Appeal allowed.