JUDGMENT 1. - Appellants Birdhi Cband and Bal Shankar have preferred these appeals against their conviction and sentence imposed by the learned Special Judge (A.C.D.) Cases, Jaipur, vide his judgment dated, 1st October, 1986. 2. Prosecution story unfolded during the trial is that Rameshwar Dayal, P.W. 2 and Shri Ram P.W. 4 submitted written report Ex. P. 2, before Special Inspector General of Police (A.C.D.) Cases, Rajasthan Jaipur, on 11th May, 1981. 3. PW 2, Rameshwar Dayal and PW 4, Shri Ram submitted that they arc residents of Village Malakhera District Alwar and are doing business in food grains in Krishi Upaj Mandi Malakhera, It was also submitted that Shri Ram is doing business in the name and style of M/s Shiv Dayal Ram Niwas and Situ Ram Mangi Lal It will not be out of place here to mention that in all there were 16 shops of grain dealers in the Mandi and all of them had licence from Krishi Upaj Mandi and Supplies Department. Firm of Sita Ram Mangi Lal was not in the Krishi Upaj Mandi, but, it was in the Gandhi Chowk of Village Malakhera which is at a distance of about 1 K.M. On 28th April 1981, vide Ex. D. 1 a complaint was lodged before the Collector by a petty dealer against Shiv Dayal. It was submitted to the Collector that the Enforcement Staff of the Supply Department is taking false and frivolous actions against the petty dealers- It was also submitted that Shiv Dayal is the Sarpanch of the village and no action is being taken against him It will not be out of place here to mention that Shiv Dayal happens to be one of the big guns, politically as well as commercially of the village Collector passed the order Ex. D. 1 on 29th April, 1981 and directed the D. S. O to submit the report. 4. The case of the appellant Birdhi Chand is that on 1st May 1981, he alongwith the Enforement Staff namely, Bal Shankar, Virria Kumar and Harish Chandra reached Malakhera Mandi in Jeep at about 4 to 5 PM, It is further alleged that on 1st May 1981 they started checking of the firm namely, M/s. Shiv Dayal Surajbhan and M/s Shiv Daval Ram Niwas. There is further allegation that the terror was created by them and they sealed the record of the aforesaid firms took in possession without giving any receipt and preparing any seizure memo The case of the prosecution is that when the deasers asked for the receipt the D.S.O. refused the issuance of any receipt or the preparation of the seizure memo There is a further allegation that the appellant Bal Shankar told the dealers while leaving the Mandi to reach Alwar for settlement with the District Supply Officer. Businessmen, however, did not accept the advice so given by Bal Shankar. 5. On 2nd May 1988 at about 10 AM, Birdhi Chand DSO., alongwith the staff again reached Mandi Malakhera. He started checking of these shops. Other shops were also sealed. There is further allegation that threat was given to the dealers about the amendment of the law and they were told that without showing any reason they can be detained behind the bars for a period of three months. There is an allegation that Rs, 10,000/- were demanded by the appellant Birdhi Chand from the dealers of the Mandi. However, the settlement was made between the parties for a sum of Rs. 8,500/-. There is a further allegation that the amount was collected by the dealers and immediately Rs, 7,200/- were paid to Birdhi Chand under the settlement so arrived at. A promise was also made that Rs 1,300/- will be paid to him at the earliest. There is an allegation that after the settlement and payment of Rs 7,200/- seals of all the shops were removed and all the dealers were exonerated to a great extent It is also the case of the parties that the raiding party which was headed by Birdhi Chand, DSO, left Malakhera and returned all the documents which were seized. 6. The second part of the case starts on 11th May 1981. It is alleged that Birdhi Chand retained one Bahi of Sita Ram Mangi Lal with him on the ground that he will retain this Bahi till the payment of Rs. 1300/- is made. Ex P. 2, the first information report was lodged on 11th by the traders before the Special Inspector General of Police (ACD) Jaipur. It is alleged that Birdhi Chand retained one Bahi of Sita Ram Mangi Lal with him on the ground that he will retain this Bahi till the payment of Rs. 1300/- is made. Ex P. 2, the first information report was lodged on 11th by the traders before the Special Inspector General of Police (ACD) Jaipur. On receiving the complaint the raiding party left for Alwar on the same day, It is further alleged that on 12th May 1981, Rameshwar Lal and PW 4 Shri Ram went at the residence of Birdhi Chand appellant and gave him Rs. 1300/- which were due under the settlement It is further alleged that Birdhi Chand returned the Bahi which is alleged to be in possession to Shri Ram PW 2, Rameshwar Lal gave a hint to the Additional SP and the raiding party went immediately inside the house of the accused Birdhi Chand. There is an allegation that there were some persons also there and the DSO Shri Birdhi Chand asked them to sit in the drawing room. Rameshwar and Shri Ram told the appellant Birdhi Chand that they have brought the balance amount for the return of Bahi. Because of the fact that there were some other persons including Jagdish Prasad, as such, Birdhi Chand took them towards the chowk and demanded money Birdhi Chand DSO, brought the Bahi which was lying inside the house on the payment of Rs. 1300/-. It is further alleged that Rs 1300/- were placed by Birdhi Chand in his pocket. On receiving the pre-arranged signal, Additional SP alongwith the witnesses and the raiding party reached on the spot. Additional SP, Shri Ummed Singh PW 27, introduced him and. thereafter, interrogated Shri Birdhi Chand, DSO, wheth r he has accepted the bribe from Rameshwar and Shri Ram. It is further alleged that at the initial stage Birdhi Chand denied this fact. However, subsequently, he accepted that Rameshwar Dayal has paid Rs. 1300/- to him He explained the receipt of the amount by saying that Hari Prasad, DW 1 has sent this money to him through Rameshwar Prasad and Rameshwar Lal had told him that Hari Prasad has returned the money which was paid to him by Birdhi Chand for purchase of wheat and Ghee from Malakhera. It is not necessary to discuss the evidence or the fact of recovery of Rs. 1300/- from the accused Birdhi Chand. It is not necessary to discuss the evidence or the fact of recovery of Rs. 1300/- from the accused Birdhi Chand. It is an admitted position that the amount was recovered from Birdhi Chand. The only dispute between the parties is on the point whether the amount which was paid on 12th morning by Rameshwar Lal to Birdhi Chand was paid on account of bribe towards the payment of the remaining part of the alleged agreed settlement which is said to have been arrived at between the parties on 2nd May 1981 If this part is accepted then there is no escape for the accomed. The other part of the case is whether the witnesses can be relied upon relating to the incident which is said to have been taken place on 12th. Thus, there is a continuation of one transaction throughout namely, raiding of the shop on 1st and 2nd May 1981, settlement of the alleged amount on 2nd May 1981, payment of Rs. 7200/- 2nd May 1981 and the remaining payment of Rs. 1300/- on 12th May 1981. 7. The allegation against Bal Shankar is that he has conspired and pursuaded the dealers to make the payment of bribe to Birdhi Chand, As far as Bal Shankar is concerned there is no allegation that he has accepted even a single penny out of the sum which is said to have been paid to Birdhi Chand. On the contrary, the case of the prosecution is that Bal Shankar said to the dealers that complete amount has been retained by Birdhi Chand and he has participated in the settlement of the dispute, as such, he should be rewarded in one way or the other and he should not be neglected altogether The allegation against Bal Shankar is that on 1st May 1981 while leaving for Alwar he asked the traders to come to Alwar. The second allegation against Bal Shankar is that at the time of payment of Rs. 7,200/- on 2nd May 1981 he was also present. The third allegation against Bal Shankar is that on 12th May 1981 also Bal Sbankar was present and Bal Shankar participated even on 12th May in the commission of the crime, 8. The second allegation against Bal Shankar is that at the time of payment of Rs. 7,200/- on 2nd May 1981 he was also present. The third allegation against Bal Shankar is that on 12th May 1981 also Bal Sbankar was present and Bal Shankar participated even on 12th May in the commission of the crime, 8. On behalf of the prosecution Harish Chandra Sharma who was one of the leading member of the raiding party has been produced as prosecution witness to support the part of the incident relating to 1st and 2nd May 1981. Mr. Vijay Kumar, P.W. 3 was also a member of the raiding party who has accompanied Birdhi Chand and who has been produced by the defence to show that no transaction has taken place on 1st and 2nd May 1981. The second set of evidence consists of the traders. P.W. 2, Rameshwar. P.W. 4 Shri Ram Singh, P.W 5 Gbanshyam, P.W. 6 Jagdish, P.W. 7 Keshav Dev, P.W. 8 Babu Lal, P.W. 9 Puran band, P.W 0 Gauri Shankar, P.W. 12 Om Prakash, P.W. 13 Girraj Prasad. P.W. 14 Bhagwan Swarup, P.W. 16 Babu Lal son of Ram Kishore P.W. 17 Mahabir Prasad, P.W. 18 Rajendra, P.W., Shiv Dayal, P.W. 20 Bihari Lal son of Ram Kishore. 9. It will not be out of place to mention here that Article 22, Article 23, Article 25, Article 28 Article 29, Ex.P. 19. Ex P. 20, Ex P 21, Ex.P. 33. Ex P. 37, Ex.P. 40 & Ex P.42 are the Bahis or the relevant entries On behalf on the defence two Bahis have also been got exhibited which are Ex D. 1 and Ex D 5 Ex.D. 15 is the Bahi of the Krishi Upaj Mandi Samiti and Ex. D. 5 is the Bahi of P.W. 17 Mahabir Prasad The traders have produced these Bahis mostly to show that they have made corresponding entries in their Bahis that they have contributed Rs 500/-for the payment of bribe to Birdhi Chand. In some Bahis it has been mentioned that the amount has been paid directly to Birdhi Chand In some Bahis it has been mentioned that the amount has been paid through Rameshwar to Birdhi Chand. Ex D. 15 is the Exercise Book which is said to be that of Vyapar Sangh Malakhera. In some Bahis it has been mentioned that the amount has been paid directly to Birdhi Chand In some Bahis it has been mentioned that the amount has been paid through Rameshwar to Birdhi Chand. Ex D. 15 is the Exercise Book which is said to be that of Vyapar Sangh Malakhera. This Exercise Book starts from 1-4-81 In this Exercise Book it has been shown that the amount of Rs. 8.13 has been carried forward from the previous account, There is an entry in this Exercise Book dated 10th May 1981. In this entry there is an entry that Rs 700/- has been paid to Rameshwar Dayal towards the expenses to be made for going to Jaipur of the deputation. There is an entry on 12th May i981 that out of the said sum of Rs. 700/- Rs 500/- has been paid to Rameshwar Lal Rs. 180/- is the expenditure of the deputation and Rs. 20/- has been deposited against his accounts. There is a corresponding entry of Rs. 500/-towards the debit side. Ex. D. 5 is the photo copy of the firm Shiv Dayal Ram Niwas. dated. 2nd May 198l, in which it has been shown Rs. 500/- has been paid to Birdhi Chand. From the perusal of these entries it seems that there is an allegation that on 2nd May 1981 the traders could collect only Rs. 7,500/-from 15 parties remaining amount was to be collected. No-where explanation has been given as to why on Rs. 7,200/- were paid out of Rs. 7,500/- collected. 10. In the facts and circumstances of the case Mr. Khem Chand submitted that the traders wanted to reduce the amount so they retained Rs. 300/- out of the amount collected and Rs. 1,000 /- were still to be collected. 11. Mr. Tibrewal appearing on behalf of the appellant Birdhi Chand has submitted that it is against the human conduct that the officers of the State demand bribe openly and asserting in public. He submits that there is an allegation that all the traders were present and in their presence, the bribe was demand. This part of the story is against the human conduct. He further submits that this is also against the human conduct that any officer of the State will accept the payment of bribe in the presence of his staff and all the traders. This part of the story is against the human conduct. He further submits that this is also against the human conduct that any officer of the State will accept the payment of bribe in the presence of his staff and all the traders. He submits that if the presence of Bal Shankar was necessary in the matter of negotiation's then naturally there should be a secrecy in the matter of settlement and payment. 12. The second contention of Mr. Tibrewal appearing on behalf of Birdhi Chand is that there is an allegation that on 2nd May 1981 everything was settled then why the present appellant remained silent for 10 days. Mr. Tibrewal submits that the prosecution witnesses themselves admit that they have come with a case that on 2nd May they decided to arrange for the trap According to Mr. Tibrewal, there was no reason for waiting for 10 days He has also pointed out the Bahi. He has also submitted that P.W. 6 Jagdish has produced Babi Article-21 and has tried to prove entry Ex. P. 8 There is a reference in this Bahi that before the raid on 2nd May the representative of this firm P.W. 6, Jagdish had been to Alwar in the early morning. There is a corresponding entry of expenditure of Rs 10/- below this entry there is an entry that Rs. 500/- have been paid to Birdhi Chand. Mr. Tibrewal submits that this goes to show that on 2nd May also one of the trad r was there at Alwar. Mr. Tibrewals argument is that there was office of Anti Corruption Department at Alwar and the prosecution has failed to explain why F.I.R. was not lodged or why no trap was arranged on 2nd May 1981. Mr Tibrewal has come with further case that Malakhtra is at a distance of about 15-20 K. Mtrs from Alwar and traders generally go to Alwar and they have every opportunity of making a complaint to the Anti Corruption Department located at Alwar. According to Mr. Tibrewal the omission to lodge any complaint for 10 days particularly when they were visiting Alwar is fatal to the case of the prosecution. Mr. Tibrewal further submit that the traders should have approached the Collector and the District Magistrate. 13. Harish Chandra Sharma supports the case of the prosecution in part and does not accept the theory of payment of Rs. Mr. Tibrewal further submit that the traders should have approached the Collector and the District Magistrate. 13. Harish Chandra Sharma supports the case of the prosecution in part and does not accept the theory of payment of Rs. 7,200/- on 2nd May 1981. Mr. Tibrewal submits that the other Government Officers, Vijay Kumar also does not accept the theory of payment of Rs. 7,200/-. It was also submitted by Mr Tibrewal that these two officers of the State whose presence is admitted, one does not support the case of the prosecution even in the matter of settlement of bribe. 14. Mr. Tibrewal has further submitted that all the traders except Bhagwan Sahai are of one community and may be related to each other. Mr Tibrewal submits that they are having common interest and Mr. Shiv Dayal, who happens to be the trader, was using his political and other influence to see that no one should have courage to check his shop in particular and the shops of the other traders also who are mostly of his community. Mr. Tibrewal further submits that the accused Birdhi Chand has given explanation which is probable in the facts and circumstances of the case about the receipt of Rs 1300/- and it should be accepted. He has further submitted that the theory of delivering the Bahi of the firm Sita Ram Mangi Lal is concocted one and it should not be accepted. Mr. Tibrewal has further pointed out some contradictions in the statement of prosecution witnesses and he submits that all the witnesses are interested witnesses and their evidence should be discarded. 15. Dr. Tiwari appearing on behalf of accused appellant Bal Shankar has further submitted that to prove the case of conspiracy it is necessary that there should be a mtetmg of mind of all the accused and particularly, the meeting of minds of accused Birdhi C hand and Bal Shankar. He submits that Rameshwar Dayal has stated that Birdhi Chand took Rameshwar Dayal and Shri Ram and had a talk with them in private He submits that this fact is sufficient for showing that no case of conspiracy is made out. Dr. Tiwari has also pointed out that bis client is innocent and he has not received a single penny out of the bribe. Dr. Tiwari has also pointed out that bis client is innocent and he has not received a single penny out of the bribe. This is the case of the prosecution itself and in such circumstances, his client cannot be held responsible for the commission of any offence. According to Dr. Tiwari, even if it is accepted that Bal Shankar told the traders to see the D.S.O. at his sidenceon Ist May, even then the theory of advising by Bal Shankar to meet Birdhi Chand on 1st May falls down. 16. As far as the other part which is alleged against Bal Shankar is that he was present on 1st and 12th May 1981. According to Mr. Tiwari, mere presence of Bal Shankar will not fasten the liability and particularly of the commission of the crime. Dr. Tiwari in the alternative, submitted that the prosecution has not come with the case of abatement, but it has come with the case of conspiracy. In any case, the prosecution has failed to prove the case of the conspiracy and there is no charge against his client about abatement. 17. Mr. Tiwari has further submitted that it is the case of the prosecution itself that Bal Shankar was not the accused at the initial stage and he was produced as a witness and. thereafter, he was impleaded as an accused. Dr. Tiwari has pointed out that from the copies of the statements recorded under section 161 Cr. P.C. in the Court from which it is clear that the statement of Vijay Kumar who was one of the members of the raiding party was recorded on 10.9.81 and the statements of the most of the traders were recorded on 19th June 1981. He submits that the evidence of the prosecution was recorded by the investigating agency between 10th June 1981 and September 1981. Dr. Tiwari submits that the omission on the part of the investigating agency to record the statement of the witnesses immediately or within a reasonable time goes to show that the prosecution was not fair and they were prejudicial against the accused Dr. Tiwari has further submitted that from the perusal of the F.I.R. Ex. Dr. Tiwari submits that the omission on the part of the investigating agency to record the statement of the witnesses immediately or within a reasonable time goes to show that the prosecution was not fair and they were prejudicial against the accused Dr. Tiwari has further submitted that from the perusal of the F.I.R. Ex. P. 56 it is clear that it was received in the court on 14.5 81 at 11.30 A. M He submits that even if we consider the date of forwarding the F. I. R. then it is 13th May 981. Dr. Tiwari submits that the F.I.R. should be the report of the 11th May 1981 and not of 12th May 1981. Dr. Tiwari submits that the F.I.R. is bundle of facts constituting the offence. He submits that in Ex. P. 2 which was submitted on 11th May 1981 this fact has been mentioned that Rs. 7.00/- have been paid to Birdhi Chand. Thus, Ex. P. 2 is the F.I.R. according to Dr. Tiwari. His submission is that subsequent investigation and seizure memo and recording them in the F.I.R. Ex. P. 56 cannot be considered as a First Information Report. 18. Mr. Khem Chand Tejwani appearing on behalf of the complainant party has submitted that the Special Judge was right in convicting the accused. He submits that the traders of Malakhera belong to a particular community and it is an admitted position according to him, that except one Bhagwan Sahai all the members belong to one community Bhagwan Sahai, in all respects, was associated with the trader. He further submits that the discussions with the traders about the payment and the settlement of the amount were made knowing this fact that all are interested and their is common cause He further submits that when the trading community as a whole is interested such officers like Birdhi Chand will talk openly and, there is no abnormality in the conduct of Birdhi Chan. He further submits that there is no reason to disbelieve the statement of the traders which is corroborated by the correspond mg entries of the Bahi Mr. Khem Chand further submits that the statements of P.W. 2, Hari Sharan and P.W. 3 Vijay Kumar support the case of the prosecution to a great extent about the incident of 1st and 2nd May 1981 as well as about the conduct of Birdhi Chand. 19. Mr. Khem Chand further submits that the statements of P.W. 2, Hari Sharan and P.W. 3 Vijay Kumar support the case of the prosecution to a great extent about the incident of 1st and 2nd May 1981 as well as about the conduct of Birdhi Chand. 19. Mr. Khem Chand further submitted that under section 33Cr. P.C. the statement of the accused were recorded. Birdhi Chand submitted that he will submit the written reply, but he failed to do so but, knowing that if any written statement is submitted it may be used against him and he considered it proper to keep silence so that the facts may not be revealed. Mr. Khem Chand further submitted that the statement of accused Bal Shankar is very relevant can be used even against Birdhi Chand He submits that Bal Shankar has admitted in his written statement submitted under section 313 Cr. P.C. certain facts which corroborates the case of the prosecution. 20. In reply to the arguments of Mr. Khem Chand Mr. Tibrewal submits that the statement under section 313 Cr. P.C. cannot be used for any purpose against his client. 21. I have heard the rival contentions of both the parties, 22. Birdhi Chand has been examined under section 313 Cr. P.C. and he has denied the main allegations He admits this position that on 1st May 1981 at about 5 P.M. he had been to village Malakhera. He could not complete the inspection of the firm Shiv Dayal Ram Niwas, as such, the godown and shop were sealed and the record of the firm was taken in the custody and was placed in the Jeep and they took the record to Alwar. He admits this position that on the next day other shops were also sealed and the checking was cone meted. He admits that Rs 1300/- were recovered from his person which are said to have been giver by Rameshwar on 12th May. He admits question No. 13 about the preparation of Exs. 3, 4, 5 and 6 and the recovery of the amount. He has further stated in his statement that because of the checking the traders are against him and he has further submitted that he will give a detailed reply in writing. It will not be out of place here to mention that no reply has been filed by Birdhi Chand in writing. Mr. He has further stated in his statement that because of the checking the traders are against him and he has further submitted that he will give a detailed reply in writing. It will not be out of place here to mention that no reply has been filed by Birdhi Chand in writing. Mr. Bal Shankar has been examined under section 313 Cr. P.C. He admits that on 1-5-81 the shops of M/s Shiv Dayal Suraj Bhan and 6hiv Dayal Ram Niwas were checked. The checking could not be completed as such, the shops and godowns were sealed. He states that the checking was conducted from time to time according to the instructions given by D.S.O. He admits that the complete record which was taken in custody was kept by the D.S.O., Birdhi Chand with him He submits that every act was done as per the directions of the D.S.O. He has also submitted the written reply. He admits in the written reply that he has stated that the D.S.O. directed him to inspect the firm Shiv Dayal Ram Niwas. On the other shop Hari Saran and Vijay Kumar were deputed for inspection. He further states that the record o these firms was taken into custody and the peon was asked to keep the record in the jeep. He admits that the record was taken away to Alwar by the D.S.O He further admits that on 2nd May 1981 at about 10 to 10.30 A.M., they reached Malakhera and started checking. He further states that the other dealers were not opening the shop, as such, the D.S.O. directed that all the shops should be sealed. He further admits that the dealers approached the D.S.O. and made a request to him. D.S.O. Considered the request and directed that all the seals should be removed. He further admits that the D.S.O. had a talk with the traders separately and he is not in a position to say as to what has transpired between the traders and the D.S.O. 23. Before considering the evidence of the prosecution and the defence. I consider it proper that the statements of the accused Bal Shankar and Birdhi Chand recorded under section 313 Cr.P.C. should be considered. I am aware of the fact that Mr. Before considering the evidence of the prosecution and the defence. I consider it proper that the statements of the accused Bal Shankar and Birdhi Chand recorded under section 313 Cr.P.C. should be considered. I am aware of the fact that Mr. Tibrewal has raised a preliminary objection that the statement of the co-accused recorded under section 313 Cr P.C. cannot be taken into consideration against his client It is necessary for me to decide whether the written statement of Bal Shankar submitted under section 313 Cr. P.C. can be used considered against Budhi Chand, and if so, to what extent. 24. It is very difficult or say practically improbable to have direct evidence about the conspiracy Conspiracy is nothing but a meeting of the minds of the persons who want to commit the crime and for that purpose they meet together with the intention to chalk out the plan either in full or in part about the commission of the crime. Some times the co-accused in the commission of crime only know little about the part assigned to him by the main hero of the conspiracy, which is the guiding factor and under whose directions, supervision, control, the wheel of the conspiracy regarding commission of crime moves and every one who is a co-accused knows only to the limited extent of the part assigned to him. So it is not necessary in a case of conspiracy that every fact should be known to every co-accused a part of the knowledge or part of the meeting of the mind regarding particular act, which is committed by the co-accused is sufficient for the purpose of considering the case of conspiracy. Mr. Tibrewal submits that the written statement of Bal Shankar submitted under section 313 Cr. P.C. cannot be used as evidence or cannot be considered at all. He has cited before me the case of Rajanikant Keshav Bhandari v. State, AIR 1967 Goa, Daman and Diu 21 . in which it has been held as under:- "We asked the learned Public Prosecutor to support this argument by citing the relevant law. He did not cite any authority. We give reasons why the answers given exculpating himself and implicating the appellant cannot be used against the appellant. The statements are not covered by Section 30 of the Evidence Act. in which it has been held as under:- "We asked the learned Public Prosecutor to support this argument by citing the relevant law. He did not cite any authority. We give reasons why the answers given exculpating himself and implicating the appellant cannot be used against the appellant. The statements are not covered by Section 30 of the Evidence Act. This section is an exception to the general rule of English Law that the confession of an accused person is evidence only against himself and cannot be used against others. Are the statements from the dock ` evidence" within Section-3 of the Evidence Act ? The answer is in the negative as they are not recorded on oath and, therefore, the accused is not a witness. In judicial procedure there there is no credit save to things sworn (In judicio non crediture nisi juratis) The statements are inferior to the evidence of an accomplice as not being given on oath and not being cross-examined. X X X X 25. Mr. Tibrewal has also cited before me the case of Munshi v. State, AIR 1968 All. 345 . in which it has been held in para 8 of the judgment as under:- "It is true that Section 342(3) Cr. P.C. provides that the answers given by the accused may be taken into consideration and it does not expressly say that in the inquiry or trial in which the answers are given they can be (1) AIR 1967 Goa, Daman and Diu 21. (2) AIR 1968 All. 345 . taken into consideration only for or against him but having regard to the purpose and the scope of an examination of the accused person as laid down in section 342(1) Cr. P.C. and to accepted principles relating to criminal trials it seems clear that the answers given by an accused person in response to questions put to him under section 34 :(1) Cr. P C. cannot be taken into consideration against his co accused. I find that this view has been taken in a number of cases." 26. Mr. P.C. and to accepted principles relating to criminal trials it seems clear that the answers given by an accused person in response to questions put to him under section 34 :(1) Cr. P C. cannot be taken into consideration against his co accused. I find that this view has been taken in a number of cases." 26. Mr. Tibrewal has also cited before me the case of Narayan Swami v. State of Maharashtra, AIR 1968 SC 609 in which their Lordships have held as under:- "The 1 gal position is quite clear, viz , that the evidence given by Dilawar, in the dacoity case, cannot be used as evidence against the appellant who had no opportunity of cross-examining Dilawar on the said case, and the statements of Dilawar. as co-accused made under section 342 Cr. P.C. in the present trial, cannot be used against the appellant. We are not certainly inclined to accept the contention of the learned counsel for the State, that these very serious illegalities, committed by the learned Sessions Judge, must be considered to have been approved, by the learned Judges of the High Court, when they dismissed the appeal summarily. In fact, we are inclined to think, that by dismissing the appeal summarily the learned Judges of the High Court have omitted to note these serious illegalities, contained in the judgment of the learned Sessions Judge. As to whether there is other evidence, on record which would justify the conclusion that the appellant has been rightly convicted, is not a matter on which it is necessary for us to embark upon in this appeal That is essentially for the High Court as a Court of appeal, to investigate and come to a conclusion one way or the other." 27. It will not be out of place here to mention that the cases cited by Mr. Tibrewal are the cases in which there was no allegation of conspiracy. Mr. Tibrewal has further cited before me the case of The Public Prosecutor v. Baggu Rama Murti and others, 1973 Cr. LJ 1761 (AP) . in which their Lordships of Andhra Pradesh High Court have held as under : "A statement made by the accused under this section incriminating a co accused in the commission of an offence cannot be used against the co-accused". 28. Mr. Tibrewal has further cited before me the case reported in 1985 Cr. LJ 1761 (AP) . in which their Lordships of Andhra Pradesh High Court have held as under : "A statement made by the accused under this section incriminating a co accused in the commission of an offence cannot be used against the co-accused". 28. Mr. Tibrewal has further cited before me the case reported in 1985 Cr. L.J. 1501 (4a). This case also relates about the commission of the offence under sections 471 and 409 IPC. The cases cited by Mr. Tibrewal during the course of dictation of judgment, he could not cite a single case in which the question of appreciating, considering and reading of evidence of the relevant facts were involved in any allegation of conspiracy. 29. Mr. Khem Chand appearing on behalf of the complainant has cited before me the case of Ashok Datta Naik and others v. State, 1979 Cr. LJ (NOC) 95 in which it has been held as under:- 'Ordinarily statements given by an accused in his examination under Sec 342 Cr. P.C. (old) (S. 313 Cr. P.C. of present Code) cannot be used against the co-accused. But in case, where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said done, or written by any one of such persons in reference to their common intention was first entertained by any one of them, is a relevant fact under S. 10, Evidence Act as against each of the persons to be so conspiring as well as for the purpose of proof of the existence of the conspiracy. As for the purpose of showing that any such person was a party to it. the said Section shall however come into play only when the Court is satisfied that there is reasonable ground that two or more persons have conspired together to commit an offence or an actionable wrong To put it differently there should be prima facie evidence before his acts can be used against the co-conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to their caramon intention, after the said intention was entertained is relevant against the others not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a partly to it. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to their caramon intention, after the said intention was entertained is relevant against the others not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a partly to it. The evidentiary value is however limited by two circumstances, namely (l)that the act shall be in reference to their common intention and (ii) in respect of a period after such intention was first intended by any one of them". 30. Mr. Khem Chand submits that after the decision in Ashok Duttas case (supra) the case cited by Mr. Tibrewal stands overruled by implication. 31. Mr. Khem Chand has also cited before me the case of Bhagwan Das Keshwani v. State of Rajasthan, 1974 Cr. LJ 751 (SC) Their Lordships of the Supreme Court were considering the scope of Section 10 of the Evidence Act. The relevant Para 3 reads as under : "Where A, a Government employee and B, a proprietor of a medical store were prosecuted on a charge of conspiracy under Section 120-B Penal Code to defraud the Government by fabrication of cash memos for medicines and obtaining reimbursement of money on fictitious bills, the extreme argument that nothing said or done by B could be taken into account in judging the guilt of A overlooked the provisions of Section 10, Evidence Act. At any rate, the proof of the fact that false and fictitious cash memo were prepared due to an agreement between the two accused, could be used against, each accused. In cases of conspiracy better evidence than act and statements of co-conspirators in pursuance of the conspiracy is hardly ever available." 32. Section-313 of the Code of Criminal Procedure is corresponding to Section 342 Cr.P.C. of the Old Code. Section 313 Cr. P.C. reads as under : X X X X 33. As far as clause (1) is concerned, it lays down the objects of examining the accused during the course of trial No person can be compelled to give evidence against him under the Constitution and the accused has a right to say that he does not want to give answer or be may keep mum. As far as clause (1) is concerned, it lays down the objects of examining the accused during the course of trial No person can be compelled to give evidence against him under the Constitution and the accused has a right to say that he does not want to give answer or be may keep mum. There is further right to the accused which is available to him and to all others given by the law Doctrine of Audi Alteram Partem, this right of natural justice is inherent in every law and is available to the accused and to any party, whether it may be a civil, criminal or revenue case. With this object, in mind the Legislature has enacted (6) 1974 Cr. L.J.751 (SC.) section 313 and it provides that in every inquiry or trial for the purpose of enabling the accused personally to explain any circumstance appearing in the evidence against him- The word `evidence" has been defined in Section 4 of the evidence Act. Evidence means and includes all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry. These statements are generally called as 'oral evidence. Documents which are produced for the inspection, consideration and appreciation of the Court. Such documents also fall within the purview of evidence and is called as documentary evidence. Any statement recorded under section 13 Cr. P.C. does not fall within the purview of the definition of evidence as defined under Section 4 of the Evidence Act. It may be a confession or an admission or a denial of the facts in matters. Section 313 (I) Cr. P.C. only enables the accused to explain the circumstances which have come in evidence against him. This is an enabling section but, does not compel the accused to explain, if he does not want to do so. Accused has a right to explain but the prosecution has no right to compel the accused to explain. The court cannot also direct the accused to explain if he does not want to explain. Any explanation made by the accused under section 313 (1) can be used against the accused himself as an admission or as a confession. Accused has a right to explain but the prosecution has no right to compel the accused to explain. The court cannot also direct the accused to explain if he does not want to explain. Any explanation made by the accused under section 313 (1) can be used against the accused himself as an admission or as a confession. It is for the accused whether to make explanation or not and he should be aware that if any explanation is made in the statement under section 313 Cr. P.C. it can be considered against him Section 313 (J) is very specific and it does not provide any explanation by the accused, can be used as evidence or considered against the co-accused. 34. Section 313 (4) further provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against him in any other enquiry into or trial for any other offence which such answers may tend to show he has committed. There is no direct mention in clause (4) of Section 313 Cr. P.C. that the answers given by one accused under section 313 Cr. P.C. could be considered against the co-accused. Mr. Tejwani submits that clause (4 ) is silent on this point. It provides that any statement made under section 313 can be taken into consideration by the Court during the trial. He wants to enlarge the scope of Section 313 by implication that it does not prohibit the consideration against the co-accused. 35. It will not be out of place here to mention that in criminal law ordinarily, the co-accused cannot be punished on the basis of the statements made by the other co-accused as he is not getting opportunity to cross examine the other co-accused who is making the statement. It will not be out of place here to mention that the word "evidence" cannot be equated with the word "consideration'. Evidence is led to prove a particular fact and it cannot be equated with consideration. In the matter of consideration something is there on record and the Court is having the power to consider or not in the facts and circumstances of the case. I am of the view that ordinarily the statements given by an accused in his examination under section 313 Cr. P.C. cannot be used against the co-accused. In the matter of consideration something is there on record and the Court is having the power to consider or not in the facts and circumstances of the case. I am of the view that ordinarily the statements given by an accused in his examination under section 313 Cr. P.C. cannot be used against the co-accused. Section 30 of the Evidence Act only provides that when more persons than one are being tried jointly for the same offence and a confession is made by one of such person affecting himself and some other of such person is proved, the Court array take into consideration such confession as against such other person as well as against the person who makes such confession". This section also enables the Court to take into consideration only the confession made by the other accused and does not enable the Court to take into consideration the statement which does not fall within the purview of confession. Thus, I am fortified in taking the view even after reading Section 30 of the Evidence Act that ordinarily statement recorded under section 313 Cr. P.C. cannot be used or considered against a co-accused. However, it can be considered against the person making it. 36. This is a general law, but there is an exception to the general law. This exception is provided under section 10 of the Evidence Act Section-10 provides that where there is a reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong. Anything said, done or written by any one of such person in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact against each of the person believed lo be so conspiring as well as for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it. This section further provides evidence and statement of co-conspirator in pursuance to the conspiracy can be taken into account. It is recognised on well established authorities that the principle underlying the acceptance of evidence under sec 10 of the Evidence Act, all the statements acts or writings of one co-conspirator as against the other is on the theory of instrumentality or agency. It is recognised on well established authorities that the principle underlying the acceptance of evidence under sec 10 of the Evidence Act, all the statements acts or writings of one co-conspirator as against the other is on the theory of instrumentality or agency. Conditions of section-10 of the Evidence Act are fulfilled where there are reasonably grounds to believe (i) that two or more persons have conspired together to commit an offence, (11) anything said, done or written by any of such persons in reference to their common intention (iii) anything said. do or written in reference to their common intention can be used after the time when such intention was entertained by any of them (iv) is a relevant fact against such persons believed to be so conspiring as well as for the purpose of proving for the existence of conspiracy as for the purpose of showing that any such person was a party to it In the instant case, there is an allegation of conspiracy and Bal Shankar has been convicted with the aid of Section 120-B. Thus, the provisions of Section 10 come into play in the case of conspiracy and the statement of Bal hankar who is alleged to have conspired can be taken into consideration under section 10 of the Evidence Act for all purposes. This exception is only available when there is a case of conspiracy otherwise, section 10 will not apply and, ordinarily Section 313 Cr. P.C. read with section 30 of the Evidence Act. statement of the co-accused cannot be taken into consideration against the other co-accused.Evidence Against Birdhi Chand : 37. Oral as well as written statement of Bal Shankar admits the position that Birdhi Chand and the raiding party reached Krishi Upaj Mandi, Malakhera 5 P.M. and started Checking of the firm M/s Shiv dayal suraj Bhan and M/s Shiv Dayal Pam Niwas. There is a further answer of question No. of the oral statement recorded under section 313 in which Bal Shankar has admitted that the record was seized and the same was kept by the D.S.O. in his custody on 1st May 1981 and it was taken away to Alwar in the jeep. There is a further answer of question No. of the oral statement recorded under section 313 in which Bal Shankar has admitted that the record was seized and the same was kept by the D.S.O. in his custody on 1st May 1981 and it was taken away to Alwar in the jeep. He further admits that the shops were sealed and seal was removed on the instructions of the D.S.O. This is the first part of the admission made by him relating to the first part of the offence. In his statement he also admits that the D.S.O. direction them to put the seal on the shops and godowns as the work of checking cannot be continued on account of darkness. He further admits that the record of both the firms was taken by the D.S.O. and he (D.S.O.) directed the peon to put it in the jeep and further told that he will come in the morning of the next day. He further admits in his written statement that the District Supply Officer directed to seal other shops as the shopkeepers were not ready of getting their shops ready for inspection He further admits in his written statement that the District Supply Officer directed the raiding party to remove the seals on the basis of the request made by the traders. He further admits that the District Supply Officer or traders were having talks separately and he is not in a position to say what was going on in between them. Thus, this is the first part of the admission relating to the occurrence on 1st and 2nd May 1981 and this part of the statement of Bal Shankar can be taken into consideration as the case relates to an offence committed regarding commission of conspiracy to commit the offence under section 161 as well as under the Prevention of Corruption Act. In a simple case when the conspiracy is not alleged this part cannot be used, but in this case there is an allegation of conspiracy. This court will have to find out whether the allegation is correct or not or if this Court believes that there is a probability of conspiracy then the statement of Bal Shankar as referred above can be r-ad against Birdhi Chand co-accused. 38. Now I will take the evidence of the Govt servants who were members of the raiding party PW 2. 38. Now I will take the evidence of the Govt servants who were members of the raiding party PW 2. Hari Saran Sharma was the Enforcement Officer posted at Alwar and he was one of the members of the raiding party He has stated that on 1st May 1981 they reached Alwar at about 4 PM and on the instructions of accused appellant Birdhi Chand he started checking of the shop M/s Shit Dayal Ram Niwas He further states that at the relevant time Rajendra was present at the shop. He further states that the inspection could not be completed as, such, on the directions of the accused Birdhi Chand, shops and godowns were sealed He admits that account books and the record of the firm was seized but the memo was not prepared He further submits that at the time of the departure when he told Birdhi Chand accused appellant that be has returned the Accounts Books and record to Rajendra he was directed by the accused that it should be re-seized Om the instructions of the accused appellant Birdhi Chand Rajendra again submitted the records and accounts books of the firm and they were taken away to Alwar by the accused Birdhi Chand. He admits that no seizure memo was prepared about the seizure of the accounts Books and other articles He further admits that on 2nd May i.e on the next day they again reached Malakhera. He further states that all other shops were not functioning, all the traders closed the shops so, on the directions of the accused all other shops were sealed He further states that he advised the accused not to get all the shops sealed but his advice was not accepted by the accused. He further states that accused Birdhi Chand had a talk with the traders for about 11/2 or 2 hours He admits that he was not present when the talks were going on between the traders and the accused Birdhi Chand, as such, he is not in a position to say what transpired between them. This part of the statement is indicative of one fact that during the talks the presence of Bal Shankar has not been stated by this witness. This witness has only stated that Birdhi Chand and the traders were only having the talks. He does not admit the presence of Bal Shankar during the talks. This part of the statement is indicative of one fact that during the talks the presence of Bal Shankar has not been stated by this witness. This witness has only stated that Birdhi Chand and the traders were only having the talks. He does not admit the presence of Bal Shankar during the talks. This witness further states that after the takes he was instructed by the accused Birdhi Chan to have a simple checking He further states that the record of both the firms was returned. He admits that the complaint was made at the time of departure that one Bahi of one firm has not been returned. He further admits that on 4-5-81 at about 12 in the noon Rameshwar came in the office and told them that the matter was settled for Rs 8,500/- and out of that Rs. 7,200/- have already been paid to the S.D.O. He further states that Birdhi Chand made a complaint to them that the remaining amount of Rs 1300/-has not been paid and, as such the accused is not returning the Bahi which is in his possession. This witness has further stated in the cross-examination that on 2nd May 1981 accused has not personally inspected or checked any shop. He has only supervised the working or had the talk with the traders. This witness further states that the shops were checked by him. Mr. Joshi and the other accused Bal Shankar and the checking memos were prepared as per the instructions. D.W. 3, Vimal Kumar is also the Enforcement Officer who has participated in the raid on 1st and 2nd May 1981. He was cited as a prosecution witness but was left by the prosecution. Defence has produced this witness as a defence witness. He has stated that on 1st they reached Malakhera but could not complete the checking as the time was snort and the facilities were not available He further stated that he was on the day inspecting and Hari Sharan and Bai Shankar were inspecting the other shop. He further states that dealers of other shops were called, bat they did not turn up, as such their shops were sealed He does not support the case of the prosecution. He further states that dealers of other shops were called, bat they did not turn up, as such their shops were sealed He does not support the case of the prosecution. He was confronted with Ex P 36 Stock Register and he has stated that it beats the signatures of Bal Shankar He also stated that Article 31 bears his signatures a as well that of Hari Sharan. He states that on the checking memo of the firm of a Banwars Lal he and accused Birdhi Chand have signed Number of documents I were confronted to him by the prosecution, but he failed to show that there is any I firm or stock register which bears the signatures of both the accused. 39. I have deceased the evidence of Hari Sharan and Vimal Kumar who were the members of the raiding party. Hari Sharan was subordinate to Birdhi Chand and there was no enmity between the two. Hari Sharan has partly supported the case of the prosecution by saying that accused Birdhi Chand had the talks with the traders separately This witness has further stated that the seals were placed on all shops and were removed on the instructions of the accused without completion of checking This witness has further stated that the accounts books and the Bahis were seized without seizure memo Accused took away all of them to Alwar and on the next day he directed that the Accounts Books and other records be returned. Thus the statement of this witness is only indicating the conduct of the accused Birdhi Chand what was the necessity of having separate talks with the traders and what was the necessity of seizing the accounts books and records of the firms without preparation of seizure memo. What was the necessity of returning the accounts books and other documents of the firms except one Bahi without obtaining the receipt Bahi from the traders. All these facts are relevant facts for consideration of the conduct of the accused Birdhi Chand to find out the truth about the allegations made against him. I am of the view that the statements of P.W. 3 Hari Sharan has rightly been relied upon by the court below and he is a trustworthy witness P.W. 3 Vimal Kumar does not support the case of the prosecution even then in some matters relating to the seizure etc. I am of the view that the statements of P.W. 3 Hari Sharan has rightly been relied upon by the court below and he is a trustworthy witness P.W. 3 Vimal Kumar does not support the case of the prosecution even then in some matters relating to the seizure etc. he supports the case of the prosecution. The testimony of D.W. 3 Vimal Kumar has rightly been rejected by the court below. The testimony of P.W. 3, Hari Sharan further gets corroboration if we consider the statement of Bal Shankar recorded under section 313 Cr. P.C. 40. Now I will have to deal with the evidence of traders who have appeal red in the witness box. 41. On behalf of trading community, P.W. 2, Rameshwar Lal Gupta has appeared in the witness box He has stated that on 1st May 1981 at about 5 P.M. accused Birdni Chand with the raiding party came to the Krishi Upaj Mandi. He further states that he was present at the relevant time at the firm of Shiv Dayal Suiaj Bhan. Shiv Dayal happens to be his elder brother. He further states that on demand Rajendra son of Shiv Dayal handed over the Bahi and the other relevant record to the checking party He further states that after that accused Bal Shankar and accused DSO. left the firm of M/s Shiv Dayal Suraj Bhan and 1 went to the shop of Shiv Dayal Ram Niwas. He further states that the record of that firm was also seized He further states that the shops and godowns were also sealed He further states that the raiding party including Bal Shankar and Birdhi Chand left for Alwar. This witness further states that at the lime of departure, Bal Shankar told him that come to Alwar, he will arrange his talk with the D.S.O. He further states that the advice given by Bal Shankar was not complied with and none of the traders went to Alwar This witness further states that on the next day, the checking party again came and there was terror and the dealers closed their shops and left the Mandi. This witness further states that the D.S.O. Birdhichand accused told him that under the new law without assigning any reason they ali can be placed behind the bar for a period oi six months. This witness further states that the D.S.O. Birdhichand accused told him that under the new law without assigning any reason they ali can be placed behind the bar for a period oi six months. This threat was given by Birdhi Chand before number of persons referred to in his statement. Again this witness implicates Bal Shankar by saying that Bal Soankar told at the time " D S. O Sahib ko khusta karo". This witness further states that he, Shiv Dayal and the accused Birdhi Chand left for some secret place to have a talk Thus, this witness admits that at the time of the talks, two traders, namely Rameshwar. Sbiv Dayal and D. S. O. were present. Bal Shankar was not Present. This witness further states that Birdhi Chand demanded Rs. 10.000/-. When they did not accept the demand Birdhi Chand directed that ail the shops of the market/Mandi be sealed Now, he further states that all the traders assembled and there was another talk between Birdhi Chand and the traders and Birdhi Chand demanded Rs. 10,000/-and said no case will be made out against you if you pay Rs. 10,000/- " He also assured that seals of shops and godowns will be opened He further states that bargaining took place and the matter was settled for Rs. 8.500/-. This witness further states that they intimated all the dealers about the settlement However, he admits that there was no talk between Bal Shankar and the traders about the settlement arrived at He admits that it was decided to collect Rs 500/- from each trader. He admits that the major part of the amount was collected from 15 dealers and out of that Rs. 7200/- were paid to the accused Birdhi Chand. He stated that all the documents including the Bahis and records were returned and all the shops and godowns were unsealed. However, one Bahi was retained by the accused Birdhi Chand in view of payment of remaining part of the amount. This witness further states that the raiding party left. This is the statement of this witness relating to the first part of the incident which is said to have taken place on 1st and 2nd May 1981. In cross-examination be has stated that the shops of Babu Ram, Bhagwan Sahai and brothers, Ram Chand Badi Lal were not checked but. they were sealed. This is the statement of this witness relating to the first part of the incident which is said to have taken place on 1st and 2nd May 1981. In cross-examination be has stated that the shops of Babu Ram, Bhagwan Sahai and brothers, Ram Chand Badi Lal were not checked but. they were sealed. He states that the settlement was made with the D.S.O. at the shop of Jawahar Lal Manna Lal and the amount of Rs. 7200/- was also paid at the same shop in his presence. He further states that upto 3 to 4 P.M. seals of all the shops were removed- He admits that the traders and he himself had the double intention on 2nd May 1981. He states that before giving Rs. 7200/- they had in their minds that in one way or the other the trap should be arranged so that the corrupt officers can be punished. At the same time they had in their minds according to this witness, that any how they should get sad of the checking. Any minor mistake can be there and there may be harassment. Keeping this fact in mind part payment of Rs. 7200/- was made and the remaining payment was deferred. 42. Mr. Tibrewal appearing on behalf of the appellant Birdhi Chand has invited my attention to the fact that in Ex. D. 2, the written statement there is no reference about one Bahi taken by the accused. He has also invited my attention to some contradictions in the statements of other witnesses. I will discuss the contradictions referred by Mr. Tibrewal with the statement of other witnesses while summing up the arguments of the parties. 43. P.W 4. Shri Ram Chandra, the other trader, corroborates the statement of Rameshwar Dayal in material particulars P.W. 4 Shri Ram has narrated the story of 1st May 1981 and. thereafter, he has narrated the story of 2nd May 1981. He has stated that all the shops of the Mandi were sealed by the raiding party under the instructions of the accused Birdhi Chand. He further states that Pal Shankar suggested to Shiv Dayal and Rameshwar to have a talk with the accused He further states that the matter was settled by Rameshwar Dayal and Birdhi Chand at Rs. 8500/-. He further states that the sum of Rs. 7200/ - was paid to the present appellant Birdhi Chand. He further states that Pal Shankar suggested to Shiv Dayal and Rameshwar to have a talk with the accused He further states that the matter was settled by Rameshwar Dayal and Birdhi Chand at Rs. 8500/-. He further states that the sum of Rs. 7200/ - was paid to the present appellant Birdhi Chand. After the payment of Rs. 7200/-the seals were removed and he allowed the seals open of all the godowns and the record of the godown which was seized one day earlier was also returned- Bahi of the firm Sita Ram Mangi Lal was retained by the accused Birdhi Chand. He further states that after the settlement, the raiding party took the lunch at his residence and left Malakhera at about 3-4 P.M. He further states that Birdhi Chand told in his presence to Shiv Dayal and Rameshwar that the Bahi retained by him will be returned as soon as the payment of Rs 1300/- is made. He further slates that discussions were held to arrange for the trap and, in view of the decision taken, he Rameshwar. Gauri Shankar and Om Prakash went to Jaipur and reported the matter to the Inspector General of Police vide Ex. P. 2. This is the first part of the story. He further stated in his cross-examination that Article 18, Bahi was not returned on 2nd May 1981, remaining Bahis were returned It will not be out of place hereto mention that Article 18 is a Bahi not relating to the business of the traders, but is the Bahi relating to the money lending business. In cross-examination he has rightly stated in Ex D. 4 that after the departure of the raiding party on 2nd May 1981 it was decided not to give further bribe and do something. He has further stated that most of the dealers arranged Rs. 500/-each and made the payment to Rameshwar and Shiv Dayal. Rameshwar and Shiv Dayal who were sitting with the D SO handed over the money to Birdhi Chand accused He has also stated that the entry has been made in the accounts books. He has further stated that most of the dealers arranged Rs. 500/-each and made the payment to Rameshwar and Shiv Dayal. Rameshwar and Shiv Dayal who were sitting with the D SO handed over the money to Birdhi Chand accused He has also stated that the entry has been made in the accounts books. P.W. 19 Shiv Dayal who is also a star witness of the prosecution has narrated the same story that on 1st May at about 5 P.M., the raiding pray reached Malakhera and started the inspection of the two shoos, He has further stated that while returning Bal Shankar told that they should ww. 1 to Alwar and contact the D.S.O. He further stated that he was a party to the settlement Rs. 10,000/-were demanded and Rs 8,500/-were settled He also narrates about the collection of the fund and the payment of Rs 7200/- to the accused Birdhi Chand He further narrates that the seals which were placed in the morning on other shops were removed after the settlement. He further states if about the fact that one Bahi was retained in lieu of the remaining payment which was to be made The important factor in the statement of this witness is about the advice given by Bal Shankar which is as under:- 44. He further states that the settlement was made at the shop of Jawahar Lal Panna Lel Thus this witness in material particulars corroborates the statement of other two witnesses referred to above This witness has also proved Ex. P. 40, Bahi in which there is an allegation of payment of Rs. 500/- as if contribution towards the payment of bribe to the accused. 45. P.W. 5, Ghanshyam is also trader. He has also corroborated the statements of other traders and has proved Article 20, the entry relating to the contribution towards the payment of bribe. P.W. 6, Jagdish is also a trader and he has proved Article 21 the entry regarding the payment of contribution of Rs 500/-towards payment of bribe Similarly. P.W. 7, Keshav Dev, P.W. 8 Babu Lal son of Ram Dhan, P.W. 9 Puran Chand, P.W. 10 Ganri Shankar have also narrated the same story and have proved Articles 22, 25, 28 and 29 respectively. In ail these articles there is an entry about the payment of Rs. 500/- towards the contribution for the payment of bribe to Birdhi Chand. In ail these articles there is an entry about the payment of Rs. 500/- towards the contribution for the payment of bribe to Birdhi Chand. 46. P.W. 12 Om Prakash, P.W, 13 Girraj Prasad. P.W. 14. Bhagwan Sahai, P.W. 16 Babu Lal son of Ram Kishore. P.W. 18 Rajendra, P.W. 2u Bahi Lal have also appeared in the witness box and they have proved Ex. F. 19, Ex P. 20. Ex. P. 2i, Ex P 33, Ex. P 37 and Ex P. 42 All the exhibits are the entries of the Bahi regarding payment of the contribution which was to be paid as a bribe to Birdhi Chand accused. 47. PW 16, Babu Lal has proved Ex D. 15 which is an Exercise Book of Vyapar Sangh. This entry is having relevance of the second parts and not for the first of the case. 48. Mr. Tibrewal submitted that none of the traders made any complaint to any higher officer or lodged any report from 2-5-81 till 11-5-81. He submits that remaining silent for such a long period creates a doubt about the truthfulness of the traders. He further submits that it was decided by the traders themselves that accused Birdhi Chand should not be paid bribe and necessary action should be taken in the matter. He submits that what was the reason for keeping silence for 10 days, has not been explained by the prosecution, and it is fatal to the case of the prosecution. He further submits that all the traders have formed a class in themselves. Their common object was that their shops should not be checked and they were avoiding the checking He submits that PW 2 Rameshwar asked the traders on 2nd May 1981 in the presence of other traders `to please D.S.O. Sahib. There is a further case that initially a demand of Rs. 10,000/- was not accepted by the traders and, as such further talks took place and the amount was settled for Rs 8.500/-. He further submits that the amount of Rs 7,500/- was collected by the prosecution then what was the cause of not making the payment of total amount and why Rs. 300/- were retained He submits that the theory of collection of Rs. 7200/-, making the entries in the account book is not trust worty. He also submitted that the theory of Rs. 300/- were retained He submits that the theory of collection of Rs. 7200/-, making the entries in the account book is not trust worty. He also submitted that the theory of Rs. 1000/- has not been mentioned in Ex. P. 2, and it only has been mentioned that the matter was settled for Rs. 8,500/-. According to Mr Khem Chand, it was not necessary that the details of the negotiations which took place should be mentioned. Mr. Tibrewal has invited my attention to Ex D. 2, statement of Rameshwar Lal recorded by the police under section 161 Cr.P.C. I do not find any material contradiction in Part A to D of the statement. He submits that the list was not prepared; generally when the contradictions for that purpose are raised, the lists are not prep ired and everything remains on record. He has also submitted that there is a contradiction in the statement of Bhagwan Sahai and this witness about the collection of contribution. According to this witness Bhagwan Sahai has participated in the collection from 2 to 4 witnesses, but Bhagwan Sahai has denied this fact and has stated that the whole amount was collected by Rameshwar Lal and Shiv Dayal and he was only a contributor and not a collector. This part of the statement cannot be said to be material contradiction. He has also referred the statement of PW 4 Shri Ram and has invited my attention the statement Ex. D. 4 recorded by the police. In this statement there is missing factor about Bal Shankar that Bal Shankar told them to go to Alwar or 10 negotiate with Birdhi Chand. This omission in Ex. D. 4 may help Bal Shankar to some extent, but may not be of any help as far as this accused is concerned. the statements were recorded after a pretty long time in the Court and minute details are not given by the parties witnesses and, there is every likelihood of some discrepancies in the statement of the witnesses recorded under section 161 Cr.P.C. and the statement recorded before the Court. Sometimes the discrepancies may occur because of the fact that some questions are not put to the witnesses by the investigating agency and the witnesses do not consider it necessary to disclose every fact which may be considered necessary by one party or the other. Sometimes the discrepancies may occur because of the fact that some questions are not put to the witnesses by the investigating agency and the witnesses do not consider it necessary to disclose every fact which may be considered necessary by one party or the other. He has also invited my attention to Ex D. 2 and Ex. D. 4 to show that there is contradiction in these two documents As far as Ex P. 2 and Ex D. 4 are concerned, there is no contradiction in these two documents. Omission to state a fact in the facts and circumstances of the case, will not amount to a contradiction. One is the statement recorded under section 161 Cr.P C. and the other is the F.I.R. which has been lodged on 11-5-81. It is very difficult to remember how many persons were present and there is likely to be some discrepancy in the number of persons who were present on the spot There may be 5. 7 or 10 persons at the time of payment to Birdhi Chand. The number is immaterial but the question of payment is material. 49. Mr. Tibrewal has also pointed out that there is contradiction in the statement of PW 5, Ghanshyam. As far as Ghanshyam is concerned he has stated that the amount was paid and he has also produced his accounts book to show that the contribution towards payment of the bribe was made by him also. The Accounts Books in which there entry is Article 20. It was also pointed out that there are some contradictions in the statement of PW 6 Jagdish Prasad, PW 7 Keshav Dev and other witnesses. I have gone through the record of the case and 1 do not find any material contradiction in the statements of the trading community which may be fatal to the case of the prosecution They have come with the consistent theory and which is further corroborated by the second part of the incident as well as by the statement of PW 3 Ram Sharan. the statement of Bal Shankar recorded under section 313 Cr.P C- can be considered in the case of conspiracy if the court comes to the conclusion that the allegations of conspiracy may be prima facie correct. I have already held that ordinarily the statement recorded under section 313 Cr.P.C. cannot be taken into consideration against the co-accused. the statement of Bal Shankar recorded under section 313 Cr.P C- can be considered in the case of conspiracy if the court comes to the conclusion that the allegations of conspiracy may be prima facie correct. I have already held that ordinarily the statement recorded under section 313 Cr.P.C. cannot be taken into consideration against the co-accused. However, the exception has been carved out under sect on 10 of the Evidence Act that in case of the conspiracy the statement of the co-accused even recorded under section 313 Cr P.C. can be taken into consideration against the other accused. 50. The second contention of Mr. Tibrewal is that the B.D.O., Shri P.N. Mathur was present but he has not been examined. He further submits that the peon and the driver who were with the D.S.O. have also not been examined. B.D.O. was not present on 2nd is an admitted position and the settlement was made on 2nd May 1981 and. as such, he was not necessary witness and it was not necessary to examine him. Everyone knows about the duty of the drivers who are attending the officers of the State. Driver remains with the vehicle and does not move from place to place with the officer, so the presence of the driver even in village Malakhera was not at all relevant or in any case, connecting. Non examination of the driver of the Jeep of the D.S.O. does not affect the merits of the case of the prosecution. As far as the peon is concerned it is not the case of any party that the peon remained throughout with Birdhi Chand and no question has been asked to any of the traders or any of the persons including he Government Officials that the peon was present throughout the checking with Birdhi Chand or Bal Shankar In such circumstances, non-production of those witnesses, namely, Shri P.N. Mathur, B.D.O. the driver of the Jeep and the peon who was attached with the D.S.O. is not fatal to the prosecution case and no adverse inference can be drawn against the prosecution. 51. Now, I will take the second part of the incident in which it is alleged that Birdhi Chand, D.S.O., was trapped at his residence and the police party arrested him and recovered Rs. 51. Now, I will take the second part of the incident in which it is alleged that Birdhi Chand, D.S.O., was trapped at his residence and the police party arrested him and recovered Rs. 1300/- from his pocket which is said to have been given by Rameshwar P.W. 2 and Shri Ram P W 4. As far as the question of payment by Rameshwar to Birdhi Chand on 12th May 1981 at the residence of Birdhi Chand, accused, is concerned it is not in dispute at all Accused himself has admitted in his statement recorded under section 313 Cr. P.C. as well as in Ex P 4 that the amount was recovered from him by the investigating agency. P.W. 27, Ummed Singh and other police officers have also stated about the fact of the recovery. The only question which remains for consideration is about the explanation given by the accused Birdhi Chand. Ex P. 4 is the memo which was prepared by the investigating agency at the time of recovery of Rs. 1300/- from the person of the accused-appellant Birdhi Chand, In this memo at the initial stage it has been mentioned that Birdhi Chand felt annoyed and said that he has not taken any bribe and he is having no money with him which is said to have been paid on account of bribe. According to Ex. P. 4. there is an explanation that Rameshwar Dayal handed over Rs. 1300/- which was given to Rameshwar by one Hari Prasad. The explanation is that Birdhi Chand gave Rs. 1300/- to Hari Prasad for the purchase of wheat and Ghee etc. from Malakhera. According to this accused the amount of Rs 1300/- was paid before a fortnight. He further states that when he asked Hari Prasad about wheat and Ghee Hari Prasad told him that good quality of wheat is not available and he will arrange return of the amount. This witness further states that this amount was paid by Hari Prasad to Rameshwar and Rameshwar returned this amount to Birdhi Chand accused. Mr. Tibrewal submits that P.W. 23 Jagdish Prasad Meena who was Assistant Collector on probation has been examined by the prosecution. He has stated that when he reached he found the police officers on the spot. He states that the accused handed over Rs. Mr. Tibrewal submits that P.W. 23 Jagdish Prasad Meena who was Assistant Collector on probation has been examined by the prosecution. He has stated that when he reached he found the police officers on the spot. He states that the accused handed over Rs. 1300/- to the Police Officer giving explanation that this amount is not a bribe amount but it is the amount which was returned by Hari Prasad. Similar statements have been given by other witnesses. 52. The case of the prosecution witnesses including the Police Officers and the decoy is that some persons were sitting in the drawing room and, as such, the accused took Rameshwar and Shri Ram towards the back side of his house and he took money there. 53. Now, it is necessary for me to consider the probability of the explanation give 1 by the accused. Section 4 has been inserted by Act No. 40 of 19o4. The object of the amendment and insertion of Section 4 (new) was to put a check on the corruption prevalent in the society and particularly amongst the Government Officers and public officers- About 24 years have elapsed the object for which section 4 was inserted could not be achieved by the Legislature Every one talks of corruption and admits that the corruption is rampant in the society. It is very difficult to say that the Anti Corruption Department has succeeded in checking the corruption. On the contrary, the position is that the Corruption has increased by leaps and bounds and increasing day today. Any organ of the State is not immune from the disease or the germs generated by the philosophy of corruption We have inherited the doctrine of benefit of doubt and we have stressed to that extent that it is impossible for the investigating agency to prove the corruption. the morale of the society is also so weak that no one has a courage to deal with the problem. Most of us feel that we are the subjects and not the citizen of the country. We are not looking to our duties and one who does not look to his duty cannot say that he is the true citizen of the country. It is the duty of every one of us including the counsel to find cut the truth and assist the Court in arriving at the truth. We are not looking to our duties and one who does not look to his duty cannot say that he is the true citizen of the country. It is the duty of every one of us including the counsel to find cut the truth and assist the Court in arriving at the truth. In (he matter of corruption the burden of proof lies on the accused to explain how he got the money which has been recovered from him. In the case of Mohani v. State of Rajasthan (1987 Crimes Vol. III) . This court has held that the evidence has to be scaled and weighed thoroughly and, in doing so, the documents prepared on the spot play an important part and all such documents must be placed before the Court. If no documents are prepared the cogent and convincing explanation must be furnished. 54. In the case of State of U.P. v. Dr. G.K. Ghosh, 1985 Cr. LJ 904 . Their Lordships of the Supreme Court held as under:- "In case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the Police Officers even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case." 55. Now, I will have to examine the statement of D.W. 1, Hari Prasad. He is a head Clerk in Central School. At the relevant time he was posted at Alwar and he used to do business of cement in the name of his wife. He has stated in the cross-examination that he daily comes to Alwar during school hours and, thereafter he leaves for Malakhera. He has stated that on 6.5.81 he handed over Rs 1300/- to Rameshwar with the request that he should return this money to Birdhichand appellant. The District Supply Officer is having a commanding position on the traders dealing in food grains and sales in other essential commodities. He has stated that on 6.5.81 he handed over Rs 1300/- to Rameshwar with the request that he should return this money to Birdhichand appellant. The District Supply Officer is having a commanding position on the traders dealing in food grains and sales in other essential commodities. This part of the statement of Birdhi Chand and Hari Prasad that Birdhi Chand gave Rs 1300/- to Hari Prasad before a fortnight or so of the occurrence is not at all probable and appellant to conscience of the Court. Hari Prasad is a dealer in the cement and is a Clerk in the Central Seboot at Alwar. He is not a dealer in food grains, what, was the necessity of giving money to Hari Prasad. Even if it is assumed that Birdhi Chand had confidence in Hari Prasad, and he might have handed over money to Hari Prasad even then it is further unacceptable that the wheat was not available in Mandi of Malakbera of the quality required by the present appellant and, as such, it become necessary for Hari Prasad to return the amount. I he explanation further does not find favour because everyday Hari Prasad is coming to Alwer to attend his school duties and the residence of the appellant is just a Kilometer or two Kilometers away from the school where Hari Prasad was serving Hari Prasad should have returned the money personally to accused appellant Apart from that even if it is assumed that Hari Prasad wanted to return the money through Rameshwar then also the question arises that why Rameshwar has not been asked between 6th and 12th May 1981 whether he has returned the amount to the accused or not. It was also natural that Hari Prasad will at least ring up and ask the accused that he has sent the money through Rameshwar and who there he has received the money or not All these facts are missing and 'his leads me to consider that the explanation given by the accused Birdhi Chand is not probable. Apart from that if we rely upon the citations by the learned counsel for the accused referred to above, one thing is clear that the documents which have been prepared on the spot should be given due weight age because everything is recorded on the spot immediately with on any consideration. In that document Ex. Apart from that if we rely upon the citations by the learned counsel for the accused referred to above, one thing is clear that the documents which have been prepared on the spot should be given due weight age because everything is recorded on the spot immediately with on any consideration. In that document Ex. P. 4 it has been mentioned that after considering for some time the accused gave the explanation that the amount which was given by him to Hari Prasad has been returned to him through Rameshwar and this is the amount which has been recovered by the Police. This explanation has been given by the accused after some consideration knowing that Hari Prasad is one of the dealers dealing in cement, dealing in articles other than food grains. He had also the knowledge that Hari Prasad is in fact a Clerk working in the Central School and he is doing the business in the name of his wife and, there is a probability that he might have selected the name of Hari Prasad as a defence witness after considering that be may be use to him for the purpose of defence and this probability cannot be ruled oui. 56. By and large most of the traders are somewhat reluctant rather than anxious to complain to the vigilance Department and to have a trap arranged, even if illegal gratification demanded by the Government Servant. General feeling amongst the traders is that if they will make a complaint or they will arrange a trap their conduct will always be seen by suspicious eyes by the Department. There is also general feeling that there is every possibility that the successor may be of the same type. Apart from that there are numerous reasons for the reluctance. They have to visit number of times to the Vigilant Department and to wait in number of times. Currency notes are not provided by the Department. They have to arrange their own currency notes. It amounts to blocking of its own capital for getting justice One can understand how much loss is suffered if the capital is blocked, may be on account of interest or may be on account of limitations for resources available for the trade. He has to accompany the officers and participants of the raiding party and play the main role. It amounts to blocking of its own capital for getting justice One can understand how much loss is suffered if the capital is blocked, may be on account of interest or may be on account of limitations for resources available for the trade. He has to accompany the officers and participants of the raiding party and play the main role. All the while he has to remain away from his job or business He ha-; to sacrifice his time and effort while doing so. Thereafter he has to attend the Court at the time of trial day today till bis statement is completed. There is no guarantee that on the date of the first appearance, the statement of the witnesses will be recorded. These are the few reasons why the witnesses are reluctant to assist the police in investigation and also in the matter of appearance in the Court The system which we have inherited needs a revolutionary change to repose the confidence amongst the people and. to my mind, the trouble, harassment of the persons who really want to perform their duties faithfully and sincerely. 57. A drawing map/chart has been prepared by the Hon'ble Chief Justice for the consumption of the litigants. Advocates and Judges. The chart map shows that since 1951 every year the arrear is increasing There is only the year in the history of this High Court, i.e. 1986 in which the arrears have come down. Thus, out of 36 years 35 years are the years of increase and this shows that the system which we have inherited and the system which we are applying needs a revolutionary change. It is the need of the time that every one who is interested or associated in the matter of administration of Justice should rise to the occasion and should see that the justice is done. Justice delayed is justice denied. It is the duty of all of us to sacrifice some of our time, may be our recreational time to meet the demands of justice. It is a matter of regret that some systems which are prevalent in our Courts are the impediments in the matter of disposal of the work. Justice delayed is justice denied. It is the duty of all of us to sacrifice some of our time, may be our recreational time to meet the demands of justice. It is a matter of regret that some systems which are prevalent in our Courts are the impediments in the matter of disposal of the work. We can pay the homage to our departed leaders who are guiding us throughout our life by doing more work instead of enjoying the holidays Judges, Advocates and others all are associated with the judicial work It will be a good homage if we 'o more work in honour of the departed soul instead of enjoying holidays. I am dictating this part of the judgment in the presence of two Advocates who had been the President of the Rajasthan High Court, Advocates Association namely, Mr. N.L. Tibrewal and Mr. Jagdeep Dhankhar, who are also representing Advocate community in the Bar council. My personal feeling may be made known to them have already conveyed my feeling to the Honble Chief Justice that we should try to do more work and that will be a good homage to the departed soul, departed Advocate, departed Judge and the departed leader of the country. Jayanti celebrations may be done by doing more work. 58. People are not getting justice everywhere and they are compelled to do something, may be by paying of money for getting the work done through the Governmental agency, instrumentality or any one else. I will refrain from expressing anything about this Court, but I cannot say in affirmative that this Court is immune from such conditions. 59. Under Section 4, there is a presumption that an accused person has accepted for himself or for any other person in gratification or any valuable thing from any person. However, this presumption is rebuttable. It is true that before a presumption under section 4(1) is raised the prosecution must establish that an accused willingly took the money offered to him. There is a further presumption that the accused knowingly accepted the money as bride or illegal gratification. However, this presumption is rebuttable. It is true that before a presumption under section 4(1) is raised the prosecution must establish that an accused willingly took the money offered to him. There is a further presumption that the accused knowingly accepted the money as bride or illegal gratification. The burden of proof is discharged by the accused if he shows that there is a probability that he has accepted money not for the purpose of illegal gratification but for any other purpose Thus, the burden of proving that the money was accepted for other purpose other than illegal gratification is on the accused. However, one cannot say that the burden on the accused is of the same nature which is necessary for the purpose of conviction. The burden is only for (hi purpose of showing the probability. Taking the conspectus picture of the case, I am not inclined to disturb the finding of conviction passed against Birdhi Chand. 60. Now, I will take the case of Bal Shankar. There is an allegation against Bal Shankar that he conspired and persuaded the traders to pay illegal gratification to Birdhi Chand. P.W. 2, Rameshwar Lal Gupta who is one of the star witnesses has been produced in the witness box. He has stated in his statement that the D.S.O. terrorised them by giving a reference of the new enactment passed by the Legislature. He has further stated that Bal Shankar told that "please D.S.O. Sahib by giving him something. He further stated Bal Shankar has not participated in the talks. He, Shiv Dayal and accused Birdhi Chand went away from the spots for talks and during the talks Birdhi Chand demanded Rs. 10,000/. Thus, in the talks which were initially held, Bal Shankar was not present according to this witness. This witness further stated that the settlement of Rs. 8,500/- arrived at between them and Birdhi Chand alone. He further states that " jkf'k ds fo"k; esa cky 'kadj ls ckr ugha gqbZA " This witness also does not say that at the lime of payment to Birdhi Chand Bal Shankar was present or not on 2nd May 1981. 61. As far as the occurrence of 12th May is concerned, this witness states that Bal Shankar and one Assistant Collector, Jagdish Prasad were sitting in the drawing room of the accused Birdhi Chand. 61. As far as the occurrence of 12th May is concerned, this witness states that Bal Shankar and one Assistant Collector, Jagdish Prasad were sitting in the drawing room of the accused Birdhi Chand. This witness further states that Bal Shankar told him that you can give the money to him also and DSO will come within two minutes. But, these witnesses declined to make payment to him but waited for Birdhi Chand. This witness further states that thereafter Bal Shankar left and they were waiting the arrival of accused Birdhi Chand. Thus, at the time of payment of Rs. 1300/-this witness states that Bal Shankar was not present on the spot. 62. Dr. Tiwari, learned counsel for Bal Shankar has also pointed out the contradiction part C to D of Ex. P. 2. The statement given by the witness in the Court is inconsistent as far as this part is concerned. Even in the First Information Report it has not been mentioned that during the talks of settlement Bal Shankar was present. In Ex. P. 2 it has been mentioned that the amount of Rs. 7200/- was paid to Birdhi Chand. Even in this document it has been mentioned that the amount was paid in the present of traders but, there is no reference about the Enforcement Staff including Bal Shankar. 63. PW. 3 Hari Sharan Sharma who has been relied upon by this Court as a trustworthy witness, has also not said a single word against Bal Shankar. On the contrary, he states that Bal Shankar was with him. He further states that Bal Shankar has said nothing to Budhi Chand. 64. PW. 4, Shri Ram has stated in bis statement that on 1st while leaving Malakhera Bal Shankar d posed them to contact Birdhi Chand This witness has further stated that DSO bad a talk with Shiv Dayal and Rameshwar separately and during the talks neither he nor Bal Shankar was present. This witness further states that on 1, the they had been at the residence of the D.S.O. Bal Shankar and one man were sitting there. Bal Shankar told them, whether yon have brought the money, then Rameshwar and Shri Kam said that they have brought the money return the accounts books. On this Bal Shankar said, have the talk with Birdhi Chand. Bal Shankar told them, whether yon have brought the money, then Rameshwar and Shri Kam said that they have brought the money return the accounts books. On this Bal Shankar said, have the talk with Birdhi Chand. He further states that before the arrival of Birdni Chand Bal Shankar left the spot and be came subsequently. In cross-examination this witness was confronted with Ex. P I and Ex- D 4. This witness states that he is not in a position to say why this is missing. Even this witness does not say when the amount of Rs. 7200/- was paid to Birdhi Chand Bal Shankar was present. 65. PW. 5, Ghanshyam docs not say a single word against Bal Shankar. PW. 6. Jagdish Prasad and PW. 7 Keshav also do not say a single word against Bal Shankar. Thus, the three traders, namely, Ghaushyam, PW. 5, Jagdish Prasad PW. 6 and Keshav Dev PW. 7, do not say against Bal Shankar. PW. 8 Babulal son of Kam Dhan has staud that Bal Shankar only advised on 1st May that they should go to Alwar and contact the D.S.O. and he will get the matter settled. 66. PW. 9, Pooran Chand has also stated the same fact that on 1st May Bal Shankar said that go to Alwar and contact D.S.O. PW. 10, Gauri Shankar has stated that Bal Shankar told the traders that each of the dealer should pay Rs. 1,000/- to the D.S.O., as he is very angry. This part of the statement is inconsistent with the theory of the prosecution because, none of the prosecution witnesses have stated that Bal Shankar had said that every trader should pay Rs 1000/- each. This witness further aggravates the case by saying that the Bal Shankar came twice and thrice to Alwar and said that you have paid money to D.S.O. and he has not been paid anything The statement of this witness is inconsistent with the statements and stand taken by the witnesses. 67. PW. 11, Damodar does not say anything against Bal ibankar. P.W. 12, Om Prakash, innovates new theory and said that Bal Shankar told that every dealer should pay Rs. 2000/-. He further states that thereafter Shiv Dayal came and he told that you have a direct talk with the accused. Thus, this new innovation is inconsistent with the prosecution theory. 68. PW. P.W. 12, Om Prakash, innovates new theory and said that Bal Shankar told that every dealer should pay Rs. 2000/-. He further states that thereafter Shiv Dayal came and he told that you have a direct talk with the accused. Thus, this new innovation is inconsistent with the prosecution theory. 68. PW. 13, Girraj Prasad also states that Bal Shankar threatened them and said that if they will not satisfy the D.S.O., the new Act has come into force and they can be placed behind the bair for six months. This theory is an innovation and is inconsistent with the statements of the other witnesses as well as Ex. P. 2. 69. PW. 14, Bhagwan Sahai states that Bal Shankar advised that every one should pay Rs. 1,000/- to D.S.O. He admits that during the settlement of the transaction Bal Shankar was not present. 70. PW. 16, Babu Lal states that Bal Shankar and Birdhi Chand threatened them about the new enactment on the next day i.e. on 2nd May 1981. He does not say anything more than this against Bal Shankar. 71. PW. 17, Mahavir Prasad has given a new theory that on 2nd May while leaving D S.O. and Bal Shankar said that Bahi will be returned to you when Rs 1300/-will be paid. There is no case of the prosecution that Bal Shankar said this on 2nd May 1981. The allegation is that Bal Shankar advised on 1st May 1981. Thus, this part of the statement is inconsistent with the other witnesses. 72. I have also perused the statements of the other witnesses, namely P.W. 18, Rajendra Prasad, P.W. 19, Shiv Dayal and P.W. 20 Bihari La). P.W.18 Rajendra Prasad has stated that Bal Shankar had told the traders that D.S.O. Sahib is demanding Rs 1000/-from each dealer. This is a different version. P.W. 19 Shiv Dayal has stated that Bal Shankar told that "D.S.O. " dks dqN ys nsdj fiaM NqMkvksa " 73. PW. 30, Bihari Lal does not say anything against Bal Shankar. Thus, taking the evidence as discussed above, I am of the view that it is not safe to maintain the conviction of Bal Shankar for the following reasons:- 1. No money has been received by Bal Shankar, 2. There is inconsistency in the statements of the witnesses about the part played by Bal Shankar. 3. Thus, taking the evidence as discussed above, I am of the view that it is not safe to maintain the conviction of Bal Shankar for the following reasons:- 1. No money has been received by Bal Shankar, 2. There is inconsistency in the statements of the witnesses about the part played by Bal Shankar. 3. Number of traders have not said anything against Bal Shankar and their silence shows that Bal Shankar has not played any part and he has just participated with other raiding party. 74. PW. 3, Hari Sharan who is an Enforcement Officer to whom I have relied as trustworthy, does not say anything. On the contrary, he supports the case of Bal Shankar that he has not participated in negotiations and also there is inconsistency in the statements of the witnesses and traders. For this reason I extend the benefit of doubt to Bal Shankar. 75. In the result, I set aside, the conviction passed against the accused Bal Shankar and acquit him of all the charges levelled against him. 76. After dictation of this part Mr. Tibrewal, learned counsel for the accused Birdhi Chand I as argued that Assistant Collector, Jagdish Prasad has not said the Bahi was in possession of Shri Ram and Rameshwar. No question has been asked about the Bahi to any of the witnesses and it was necessary to ask the question. It is an admitted position that Rameshwar and Shri Ram remained there upto 11.50 and, in such circumstances, the recovery of Bahi is itself negative of the fact that Bahi was returned to them as stated by them and this is also a piece of evidence against Birdhi Chand. 77. In the result, the appeal of accused Birdhi Chand is partly accepted and he is acquitted of the charge under section 120-B I.P.C. However, his conviction under section 161 I.P.C. and Section 5(1 )(d) read with Section 5(2) of the prevention of Corruption Act is maintained. 78. On the point of sentence, I have also heard Mr. Tibrewal, learned counsel for the accused Birdhi Chand. Mr. Tibrewal has submitted that the matter relates to the year 1981 and the appellant Birdhi Chand has lost service and he is facing hard days, as such, lenient view should be taken and the sentence should be reduced to the sentence already undergone. 79. On the contrary, Mr. Tibrewal, learned counsel for the accused Birdhi Chand. Mr. Tibrewal has submitted that the matter relates to the year 1981 and the appellant Birdhi Chand has lost service and he is facing hard days, as such, lenient view should be taken and the sentence should be reduced to the sentence already undergone. 79. On the contrary, Mr. Khem Chand, learned counsel for the complainants, submits that Birdhi Chand was a Senior Officer of the State Government and exemplary punishment should be awarded to him. He further submits that even the sentence awarded is not sufficient The State has not preferred any appeal and he has no right to make such submission. 80. Taking note of all the facts and circumstances of the case and also the disease of corruption prevalent in the society, I consider it proper that the sentence awarded by the court below under section 161 I.P.C. as well as under section 5 (1) (d) read with section 5(2) of the Prevention of Corruption Act should be maintained. The accused-appellant is a Senior Officer of the State as such, no lenient view should be taken against him. 81. Non-bailable warrants be issued for the arrest of the accused Birdhi Chand to undergo the remaining part of the sentence. 82. A copy of (his judgment be made available to the accused appellant as per the law.Appeal No. 466 of 1986 of Birdhi Chand Partly allowed. *******