FAROOQ HASAN, J.—This criminal appeal is directed against the judgment dated July 16/24, 1985, passed by the learned Special Judge (A.C.D. cases) Jaipur, whereby the appellant was found guilty for the offences and sentenced as under:- U/Sec. 161, IPC - One years R.I. U/Sec. 5 (1)(d)(2), read with Section 5 (2), Prevention of Corruption Act, 1947 - One years R.I. with a fine of Rs. 500/-in default, 3 months R.I. 2. Brief facts giving rise to this appeal are that on the report of Ramchandra (PW2) a case was registered at police station Kishan garh Bas & a cross case was also registered against Ramchandra (PW 2) and others at the same police station. In both the cross-cases, the appellant, who was Station House Officer, Police. Station Kishangarh-Bas was conducting the investigation. It is alleged that when Ramchandra (PW 2) went to the police station and contacted the appellant, he demanded Rs. 500/- from him saying that he would go to the site for inspection only after, the complainant (PW 2) would pay him Rs. 500/- as gratification. Upon this, Ramchandra (PW 2) alleged to have agreed to pay Rs. 300/- and the same is said to have been paid to the appellant and then, the appellant alongwith certain other constables went to his village and investigated the cases and made inquiry from the witnesses in those cases; and thereafter, on return to the police station, the appellant is alleged to have sent Ramchandra (PW 2), his mother and brother for medical examination, with a police constable. After medical examination having got conducted, the appellant alleged to have asked Ramchandra and his brother to go back to the village because the injuries sustained by his mother was to be x-rayed but, Ramchandra (PW 2) desired, to accompany with his mother thereafter, his mothers injuries were x-rayed and then they returned to their village. 3. It is alleged that Ramchandra (PW 2) again went to the police station on 10. 10. 1982 and contacted the appellant and enquired about the progress of their cases, to which the appellant replied the complainant (PW 2) that cross case has also been registered against the complainant and others so, he (appellant) would give final report in cross-case only when Rs. 1000/- would be paid to him, and on persuasion by Ramchandra (PW 2), the appellant is alleged to have agreed to accept Rs. 700/. 1000/- would be paid to him, and on persuasion by Ramchandra (PW 2), the appellant is alleged to have agreed to accept Rs. 700/. It is also alleged that Ramchandra (Pw 2) did not go to pay bribe to the appellant and made up his mind to get the appellant trapped by anti-corruption department and for this purpose, he went to the Deputy Superintendent of Police, Anti-corruption Department (Dy. S.P.-ACD) and made a statement before him as contained in Ex.P. 2. After receiving the report,Dy. S.P. (Pw 9) sent for Balkishan (Pw 3) and Kailash Chand (Pw 4) and then the contents of Ex P. 2 were alleged to have been read to Ramchandra (Pw 2) in the presence of Balkishan (Pw 3) and Kailash Chand (Pw 4). 4. Thereafter, Ramchandra (Pw 2) is alleged to have produced currency notes of the value of Rs. 700/- numbers of which were noted and were treated with phenolphthalein powder. After usual instructions were given to the decoy, Ramchandra (Pw 2), and Punch witnesses, namely Bal Kishan (Pw 3) and Kailash Chand (Pw 4), the raiding party proceeded towards police station Kishangarh Bas alongwith Ramveer Singh Banwarilal, Sharwan, Devi Sahai, Bishan Swarup (Pw 7) and Pannalal (Pw 8). 5. Ramchandra (Pw 2) is alleged to have been sent inside police station while other witnesses stayed outside police station; and the money was alleged to have been handed over to the appellant who is alleged to have taken it and put it inside his pocket of pent. Ramchandra (Pw 2) is alleged to have then come out and given a signal to Sardarilal (PW 9), whereupon Sardarilal (PW9) alongwith Balkishan(PW3)and Kailash Chand (PW4) in addition to other persons, are alleged to have gone inside police station where the appellant is said to have been there. It is further alleged that as soon as the appellant saw the raiding party laid by Sardarilal (PW 9), he took out the currency notes from the pocket of his pent and threw them in the room; thereupon Sardarilal instructed some of the police officials accompanying him to catch hold of the appellant who was alleged to have tried to run away from the place where he threw the currency notes. Sardarilal (PW 9) introduced himself to the appellant and took him to the adjoining room. Sardarilal (PW 9) introduced himself to the appellant and took him to the adjoining room. The notes were collected in the presence of the witnesses and their numbers were compared with those which were noted before the raiding party proceeded to trap the appellant. The numbers are alleged to have tallied. The appellant is said to have been questioned by Sardarilal (PW 9) as to why he demanded any bribe and accepted it. Both the hands of the appellant are alleged to have been dipped in sodium carbonate solution and the solution which was previously colourless turned pink. The same process was repeated with the pocket of the pent which results in the bicarbonate solution turning pink. After completion of the investigation, a charge sheet was presented against the accused-appellant for the offences under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act and 161 of the Indian Penal Code, 6. All that has been mentioned in the earlier paras was what the prosecution set out to prove before the trial Court. The learned Special Judge framed charges against the appellant for the offences for which he was challanged and to which the appellant denied and claimed to be tried. The prosecution in all produced nine witnesses in support of the charges framed against the appellant. 7. The challan against the appellant was filed after obtaining a proper sanction which was given by Phool Singh (Pw 1), D.I.G., Range Ramchandra (Pw 2) is the decoy witness though appeared in the witness box but turned hostile and, completely denied the alleged prosecution version against the appellant. Bal Kishan (Pw 3) and Kailash Chand (Pw 4) were the panch witnesses who in their statements before the Special Judge though admitted that they were called by Sardarilal (Pw 9) Dy. S.P. (ACD), and further admitted preliminary part of the prosecution story but they also denied that any money was given to the appellant as a gratification by Ramchandra (Pw 2) and that any money was recovered from the appellant by Sardarilal (Pw 9). Mohanlal (Pw 5) is brother of Ramchandra (Pw 2) and he was produced by the prosecution in order to prove that before the trap, Rs. Mohanlal (Pw 5) is brother of Ramchandra (Pw 2) and he was produced by the prosecution in order to prove that before the trap, Rs. 800/- were given to the appellant as bribe, but this witness, also turned hostile and deposed that no amount was given to the appellant as bribe, as was the version of Ramchandra (Pw 2). Darshan Singh (Pw 6) is a Sub-Inspector and it has been admitted by the prosecution that on the relevant date, Darshan Singh was holding a meeting at the crucial police station Kishangarh bas, and the money paid as gratification to the appellant was alleged to have been recovered before him. But, Darshansingh (Pw 6) admitted that he was holding meeting on the crucial date; however, he did not at all support the prosecution with regard to the recovery of the currency notes and on other salient features of the prosecution story. 8. Bishanswarup (Pw 7) is the Inspector in the Anti-corruption Department, and he deposed that he accompanied with the raiding party; and further that, at the time when the money was given to the appellant Ramchandra (Pw 2) and the search was being made by Sardarilal (Pw 9), he was outside the boundaries of the police station Kishangarh bas though he was subsequently called and when he reached there, the appellant was trying to ran away. Bishanswarup (Pw 7) further deposed that the currency notes which were lying inside the room were lifted by Sardarilal and the same were handed over to Sardarilal (Pw 9). 9. Pannalal (Pw 8) has deposed that he was present at the time when the raid was made and further that Ramchandra (Pw 2) went inside the police station and came back and told Sardarilal (Pw 9) that the appellant was sitting in the meeting and was not in a position to pay the amount of gratification to the appellant. Pannalal also stated that Ramchandra (Pw 2) again went inside the police station at the time when it was 5 oclock and at that time, he also went inside the police station and seated himself in a barrack and he saw the appellant in the company of Ramchandra (Pw 2) having conversation in the room which is near the barrack where the witness (Pw 8) was sitting. Pannalal then narrated the story of search by Sardarilal (Pw 9) and the recovery of currency notes. Pannalal then narrated the story of search by Sardarilal (Pw 9) and the recovery of currency notes. Sardarilal (Pw 9) is the person who has also narrated the story made by the prosecution. 10. I have heard the learned counsel for the parties and have gone through the entire record. 11. Shri Biri Singh, the learned counsel for the appellant, at the very threshold of his arguments, argued, that the prosecution witnesses in the case are highly interested, discrepant, and unreliable, and as such no conviction can be passed on the basis of such evidence, in as much as according to him, the learned trial court has misread the evidence and thus failed in error in not discussing the point with regard to the demand of bribe. In this regard, the prosecution examined the decoy and his brother, Mohanlal but both of them were declared hostile they did not support the prosecution case, at all rather, they have given negative statement. 12. As a next limb of his arguments, Shri Biri Singh wrangled that the presumption can only be drawn under Section 4 of the Act when, the prosecution proves that accused has accepted or obtained or agreed to accept the bribe for himself or for other person. And, without that, the accused cannot be convicted, Shri Singh added. Shri Singh vehemently urged that the principles laid down by their Lordships of the Supreme Court in Hazarilal vs. State (Delhi Admn) (1) have been wrongly interpreted by the learned trial Court. 13. According to Shri Singh, the learned trial Court has given undue importance to the statement of Sardarilal (Pw 9), Investigating Officer. Shri Singh then submitted that his evidence (Sardarilal Pw 9s) is contradictory, unreliable and uncorroborated by any other witnesses. 14. Learned Public Prosecutor, on the other hand submitted that the learned trial Court was justified in convicting the accused-appellant because the prosecution has successfully proved its case against the appellant and, has adduced reliable evidence in support of its case. 15. I have considered the points raised by both the learned counsel and gone through the judgment of the trial Court. The learned trial Court while convicting the appellant placed reliance on Section 4 of the Prevention of the Corruption Act, 1947 ( the Act, in short) and on the basis of presumption found the appellant guilty. 16. 15. I have considered the points raised by both the learned counsel and gone through the judgment of the trial Court. The learned trial Court while convicting the appellant placed reliance on Section 4 of the Prevention of the Corruption Act, 1947 ( the Act, in short) and on the basis of presumption found the appellant guilty. 16. Firstly, 1 would like to discuss the proposition of law in respect of the presumption as is envisaged in Section 4 of the Act. 17. Before a presumption under Sec. 4(1) of the Act is raised, the prosecution must establish that an accused willingly took the money or thing offered to him knowing fully well that the gratification was meant for his benefit or for the use of somebody else. Where a person is charged under Sec. 6(a) of the Act and the prosecution relies upon the presumption against the accused, the burden is on the prosecution to prove that, the gratification was paid or given and received by the accused; that, at that time he was a government employee and that the giver has or seeks to have dealings with the government or its department It is therefore, upon the prosecution to prove not only the passing of the money to the accused, but also that he took it with a consenting mind. This would necessitate proof of either an agreement to accept prior to the actual acceptance or of his consent to accept the same as gratification at the time when the money was offered. 18. In view of the aforesaid observations, it is thus clear that unless it is proved that the accused did receive gratification, there will not be any presumption that gratification was received as a motive or reward. Before relying upon presumption in this Section, the prosecution must prove that the accused accepted or obtained any gratification other than legal remuneration. Generally the burden to prove the ingredient of the offence of Section 161, IPC, lies on the prosecution. 19. Section 4 of the Prevention of Corruption Act does hot dispense with the necessity to prove on the part of the prosecution that gratification or some valuable thing proceeded from the complainant to the accused. Generally the burden to prove the ingredient of the offence of Section 161, IPC, lies on the prosecution. 19. Section 4 of the Prevention of Corruption Act does hot dispense with the necessity to prove on the part of the prosecution that gratification or some valuable thing proceeded from the complainant to the accused. The moment, however, when the prosecution proves that the accused accepted or agreed to accept any gratification the presumption will be raised against him that he received it as a motive or reward for exercising any official favour or disfavour. 20. If the evidence of the prosecution is examined in the light of the aforesaid principles I am of the view that the prosecution failed to prove the charges against the appellant. 21. I may observe that the presumption however, is not absolute. It is, rebuttable. The accused can prove the contrary. The quantam and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused or it may consist of circumstances appearing in the prosecution evidence, itself, as a result of cross-examination or otherwise. The accused may-rebut the presumption by showing a mere preponderance of probability in his favour; and it is not necessary for him to establish his case beyond a reasonable doubt. 22. The sole purpose of the presumption under Section 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under Section 5(1)(2) of the Act and Section 161, IPC. The presumption can, therefore, be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still-born. 23. The aforesaid proposition of law is fully fortified by the decision of the Apex Court in Hazarilal Vs. 23. The aforesaid proposition of law is fully fortified by the decision of the Apex Court in Hazarilal Vs. State (Delhi Admn.) (supra) wherein it has been laid down that there can be no quarrel with that proposition but where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the court would certainly be entitled to drew the presumption under Section 4(1) of the Act! As has been laid down in Man Singh Vs. Delhi Admn. (2), it is well settled that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable and once this is done, the presumption under Section 4 stands rebutted. It is thus clear that the presumption can only be drawn only when the prosecution proves material aspect of the case and that presumption is rebutted. 24. As stated earlier, the appellant has been convicted for the offence under Section 161, IPC, also. Before I discuss the salient features of the case, I would like to mention first as to in what circumstances it can be held that the offence under Section 161, IPC is made out, and in this regard, I would refer to the decision in Chaturdas vs. State of Gujarat (3) wherein it has been observed as under :— "To constitute an offence under Section 161 it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to giver "with any other public servant" and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing." . "When a public servant, being a police officer, is charged under Section 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal, gratification, the requirement of the law is satisfied. It is not necessary in such a case for the court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour." From the above proposition of law, it is precisely clear that in order to constitute an offence under Section 161, IPC, it must be proved that the public servant who accepted the gratification, took it by inducing a belief or by holding out that he would render assistance to give with any other public servant and the giver had given the gratification under that belief. 25. Let me now consider the present case in the light of the principles laid down by their Lordships of the Apex Court which have been enunciated above. 26. Many of the prosecution witnesses, in the present case, turned volte face. Ramchandra (Pw 2), the decoy, has not at all supported the prosecution story and has completely denied having any talk with the appellant and further denied that he had ever given Rs. 300/- and Rs. 500/- to the appellant as gratification in order to get undue favour in cross cases registered in their favour, inasmuch as he has given out a different story in his statement stating that at the instance of Azad Sarpanch he went to the Dy. S.P. (ACD) alongwith a written report which was shown to the Dy. S.P. who in turn told that the report was not in a proper form and that report was torn, thereupon a second report was got written at the instance of one Azad Sarpanch which has been m irked Ex. P.2 and which bears his signatures for which the witness has given explanation to the effect that the contents of the report (Ex. P. 2) were not at all read over to him, and he never knew the contents when it was got signed. 27. Ramchandra (Pw2) even went to the extent saying that he never made any efforts to meet or contact the appellant nor he had any discussion with the appellant in connection with the cross cases. Denying the version that he ever paid Rs. 700/ to Sardarilal (Pw 9) Dy. S.P. in order to get the appellant trapped, Ramchandra (Pw 2) deposed that an amount of Rs. Denying the version that he ever paid Rs. 700/ to Sardarilal (Pw 9) Dy. S.P. in order to get the appellant trapped, Ramchandra (Pw 2) deposed that an amount of Rs. 700/- was given by Azad Sarpanch to the Dy. S.P. (ACD) and that amount was given to him by the Dy. S.P. with the directions, that this amount would be intruded in the pent pocket of the appelant; and at their instance, he went to the police station Kishan-garh-bas alongwith other persons where he thrusted the currency notes in the pocket of the appellant who refused to receive the money and jerked his hand as a result of which, the notes came to be touched the appellant and the notes came to be flung across the ground inside room. Ramchandra (Pw 2) further deposed that before the notes were intruded, the Dy. S.P. and other police officials of Alwar has threaten him telling that in case the currency notes would not be intruded in the pocket of the appellant he would be falsely implicated in criminal cases : and because of this fear, he intruded the currency notes in the pocket of the appellant. Then Ramchandra (Pw 2) has been declared hostile and he disowned his version given out before police in his police statement (Ex. P.5). Ramchandra (Pw 2) was cross-examined by the public prosecutor but in that cross examination also, nothing has been stated by him in support of the prosecution. 28. Balkishan (Pw 3) in his statement though supported earlier part of the prosecution story but in his statement he has deposed that he alongwith raiding party reached Kishangarh bas at about 2 p.m. the decoy went inside police station but they all remained outside compound of the police station. Bal Kishan (Pw 3) further deposed that the decoy (Pw2) came outside police station and had talked with Dy. S.P. and in between 2-2.30 p.m. Dy. S.P. went inside police station he also followed him there were many police officers inside police station after some time there was noise in the police station one of the police officer called him inside and he alongwith him went inside. Then he was asked to identify the appellant. But, the witness stated that he did not know the appellant. S.P. went inside police station he also followed him there were many police officers inside police station after some time there was noise in the police station one of the police officer called him inside and he alongwith him went inside. Then he was asked to identify the appellant. But, the witness stated that he did not know the appellant. Bal Kishan (Pw 3) further stated that at the police station, he saw a tall-man but then he did not recognise the man by face and, stated further that he also did not know as to who took out the currency notes from the pocket of the shirt of that tall-man and that Dy. S. P. asked about the notes from that tall-man who in turn had replied that the notes are of his pay. The witness was put question as to how much money was taken out from the pocket, he answered that he did not know. Though the witness has corroborated subsequent happenings but no responsibility has been casted by the witness on the appellant. The witness admitted his signatures on Ex. P.. 4. The witness was declared hostile and cross-examined by the Public Prosecutor and in cross-examination he has stated the facts as mentioned in Ex. P. 4 having not written in his presence and he explained that at the time when Ex.P. 4 was prepared he was outside room. The witness disowned the various parts of his police statement (Ex.P. 8). Kailash Chand (Pw 4) has also given out similar prosecution story and he has been declared hostile and he did not at all support the prosecution version with regard to the raid, recovery of currency notes and the payment of gratification by Ramchandra (Pw 2). 29. Mohanlal (Pw 5) was produced in order to prove that the amount of Rs. 300/- and Rs. 500/- as gratification were given to the appellant, but the witness totally denied these facts, in as much as he also denied that Rs. 700/-Were demanded by the appellant or that the amount of Rs. 700/- was given by him to Ramchandra (Pw 2) so as to make payment of it to the appellant as gratification). 300/- and Rs. 500/- as gratification were given to the appellant, but the witness totally denied these facts, in as much as he also denied that Rs. 700/-Were demanded by the appellant or that the amount of Rs. 700/- was given by him to Ramchandra (Pw 2) so as to make payment of it to the appellant as gratification). This witness (Pw 5) has been declared hostile but, Darshan Singh (Pw 6) who is a Police Officer in the rank of Inspector in Computer Department, has deposed that on 12.2.1982 he was posted at Alwar and on that date he called a meeting of police officials and held it at Police Station Kishangarh-bas premises, where the appellant was stated to be an incharge. According to him, the meeting started at 10 a.m. and at about 5 p.m. when the meeting was about to disperse, Sardarilal (Pw 9) Dy. S.P. came incide the room from the left gate and asked that, who is Lallukhan, The witness further stated that he pointed out Lallukhan (appellant) on this, Sardarilal (Pw 9) introduced himself to the appellant and asked him as to what for he has accepted gratification of Rs. 500/-to which in turn the appellant had replied that he had not taken any gratification, the witness (Pw 6) deposed. 30. Darshan Singh (Pw 6) also deposed that when Sardarilal (Pw 9) was about to catch hold of the appellant he alongwith other staff came out side room, and at that time the appellant was saying that he had not accepted the bribe or gratification. After that what happened in the room, the witness admitted that he did not know, and further gave out that no proceedings were drawn in his presence. However, Darshansingh (Pw 6) admitted signatures on Ex. P. 11. The witness was cross-examined by the Public Prosecutor and he put only one question before the witness with regard to Ex. P. 11 (police statement) and the witness replied for the same in the same form as is deposed by him before the trial Court, quoted above. 31. Bishanswarup Gupta (Pw 7) who in his statement stated that on the crucial day, 12.10.82, he was Police Inspector (ACD) at out-post Alwar, has deposed that he was sent there by Sardarilal. The witness corroborating first part of the prosecution story deposed that at about 2.30 or 3 p.m. he alongwith Dy. 31. Bishanswarup Gupta (Pw 7) who in his statement stated that on the crucial day, 12.10.82, he was Police Inspector (ACD) at out-post Alwar, has deposed that he was sent there by Sardarilal. The witness corroborating first part of the prosecution story deposed that at about 2.30 or 3 p.m. he alongwith Dy. S.P. and other witness proceeded for Kishangarh bas and reached at about 4 p.m. and that Dy. S.P. left jeep and directed the witness to remain present in the jeep alongwith driver. Bishanswarup (Pw 7) further deposed that at about 5 p.m. Pannalal came to him and stated that the appellant has accepted bribe and he has been called by the Dy. S.P. alongwith jeep driver in police station premises where he reached and saw that at that time Dy. S.P. and other members of his staff were inside and there the meeting was going on and he also saw that there was struggle in between the appellant and Dy. S.P. who was asking the appellant as to what for, he had demanded the amount of Rs. 500/- from the decoy to which the appellant had denied to have accepted any bribe; the currency notes were produced by Shrawanlal saying that the currency notes were lying on the ground in the room the notes which were collected got tallied with the numbers which have been mentioned in Ex, P. 3 Ex. P. 4 was also prepared in his presence and it bears his signatures. The witness also deposed that the pent of the appellant was seized and the pocket of the pent of the appellant was also dipped which resulted in biacarbonate solution turning in pink. 32. Bishanwarup (Pw 7) confronted with the Police statement (Ex. D. 2) wherein it was not stated that "Pannalal came to him and told that the appellant has accepted the bribe". The witness was asked to explain about this omission to which he has shown his inability. In Ex. D.2 it has also not been stated that at the time of recovery the appellant expressed his apology and asked Dy. S.P. to pardon. 33. As stated earlier, Pannalal (Pw 8) has also not corroborated version of Sardarilal (Pw 9). The witness was asked to explain about this omission to which he has shown his inability. In Ex. D.2 it has also not been stated that at the time of recovery the appellant expressed his apology and asked Dy. S.P. to pardon. 33. As stated earlier, Pannalal (Pw 8) has also not corroborated version of Sardarilal (Pw 9). Pannalal in his statement before the trial Court mentioned that when the decoy went inside police station Kishangarh-bas for the second time he also followed him and he stayed in the barrack from where he saw the appellant in the company of the complainant, in the adjacent room to barrack. This part of his statement was not there in his earlier police statement. Sardarilal (Pw 9) is the witness who has narrated the prosecution story and the trap was conducted by him. 34. The aforesaid discussions of the entire evidence adduced by the prosecution makes it precisely clear that the prosecution version has been linked by three of the prosecution witnesses i.e. Pw 7, Pw 8, & PW9 who are police officials. 35. Now it is to be seen as to whether the evidence of these three prosecution witnesses is sufficient to convict the appellant for the offences charged. The only thing which has been stated by these three prosecution witnesses is that the decoy went to Dy. S.P. and there he submitted Ex. P. 2 and handed over the currency notes to the Dy. S.P. (Pw 9); Balkishan (Pw 3) and Kailash Chand (Pw 4) were called, trap was arranged; raiding party reached at Kishangarh Bas, the currency notes were recovered which were handed over to Sardarilal (Pw 9). Bishanswarup (Pw 7) has deposed that the notes were lifted by Sarwanlal from the ground of the room. 36. As stated earlier, it was the case of the prosecution that the appellant demanded illegal gratification from Ramchandra (Pw 2) and that before this demand, the appellant had already accepted Rs. 800/- in two instalments from Ramchandra (Pw 2). This part of the prosecution story has not at all been proved because Ramchandra (Pw 2) and Mohanlal brother of Ramchandra both have turned hostile. 37. Next question then which arises for consideration is as to whether the currency notes of the value of Rs. 700/- were given by Ramchandra (Pw 2) for trap purpose. This part of the prosecution story has not at all been proved because Ramchandra (Pw 2) and Mohanlal brother of Ramchandra both have turned hostile. 37. Next question then which arises for consideration is as to whether the currency notes of the value of Rs. 700/- were given by Ramchandra (Pw 2) for trap purpose. In this regard, the testimony of Ramchandra (Pw 2) as come out in his statement is very much significant and important but, unfortunately, Ramchandra (Pw 2) has not fortified the prosecution case on this point. Ramchandra (Pw 2) has deposed that the currency notes of the value of Rs. 700/-were given to the Dy. S.P. (Pw 9) by Azad Sarpanch who was jealously angry to the appellant and the trap was obviously arranged by Sardarilal (Pw 9) at the initiative of Azad Sarpanch, inasmuch as Bishanswarup (Pw 7), Pannalal (Pw 8) and Sardarilal (Pw 9) have given out different version and have stated what the prosecution set out to prove its case. 38. The appellant in his statement under Section 313, Cr.P.C. has also given out that the trap was arranged at the initiative of Azad Sarpanch who is inimical to him and at that time. when the currency notes said to have been recovered, he had denied before* the Dy. S.P. (Which has been corroborated and brought in the evidence of the prosecution, witnesses as discussed above) that he had not accepted any gratification from Ramchandra. In these circumstances the case of the prosecution becomes doubtful on this point as to whether the currency, notes of the value of Rs. 700/- were given by Ramchandra (Pw 2) to Sardarilal (Pw 9). It may be observed that the accused may rebut the presumption by showing a mere preponderance of probability in his favour and it is not necessary for him to establish his case beyond a reasonable doubt because such proof may partake the shape of defence evidence led by the accused. Thus, the aforesaid narration of facts came out in the evidence of the prosecution, as well as of the accused, the appellant proved the contrary. Thus, the aforesaid narration of facts came out in the evidence of the prosecution, as well as of the accused, the appellant proved the contrary. Further more, it is precisely clear from what has been set out above that the circumstantial and documentary evidence creates room for doubt that the defence Version was probably true and the statement of the decoy who has turned hostile, cannot be accepted without corroboration; and the story of demand of gratification by the appellant from the decoy is not at all proved. 39. The only slight evidence which is said to be of Bishanswarup (Pw 7), Pannalal (Pw 8) and Sardarilal (Pw 9), itself, is not sufficient to hold the appellant guilty for the offences charged because if it is assumed that the currency notes of the value of Rs. 700/- were handed over to the Dy. S.P. by Ramchandra (Pw2) then definitely the question would arise as to whether these currency notes were in fact given by Ramchandra (Pw 2) to the appellant and the same were accepted by him as illegal gratification or not. But, on this point, the evidence of prosecution is too shaky and no reliance can be placed on such evidence. This fact appears to be absolutely false because Sardarilal (Pw 9) in his statement has admitted that all what had happened during the trap and raid, were recorded by him in Ex. P. 3. But, the presence of Pannalal in the boundaries of police station at the time when the appellant was said to have been seen in the company of the decoy, has not been mentioned in Ex. P. 3. P. 3. But, the presence of Pannalal in the boundaries of police station at the time when the appellant was said to have been seen in the company of the decoy, has not been mentioned in Ex. P. 3. The witness has been cross-examined on this point and a specific question was put to the witness (Pw 9) in the following form; ^^iz- vkt vkius vius c;ku esa fy[kk;k gS fd iUuk yky Fkkus ds ck;sa rjQ okys cSjd ds vUnj Fkk vkSj tc vki bkkjk feyus ij Fkkus ds vUnj ?kqesa rks og cSjd ls vkrk gqvk fn[kkbZ fn;k tcfd blds f[kykQ iznkZ ih@2 ds fgLlk ds ^d* ls ^[k* ds vuqlkj iUuk ykyk xokgku~ o vU; deZpkfj;ksa ds lkFk vkius lkFk vUnj ?kqlkA bu nksuksa ckrksa esa ls dkSulh ckr lgh gS\ m- iznkZ ih@2 esa ^d* ls ^[k* Hkkx esa iUuk yky dk lcds lkFk vUnj tkuk tks fy[kk gqvk gS mldk vFkZ Fkkusnkj ds dejs esa vkus ls gS u fd Fkkus dh bekjr ds vUnjA I am of the opinion that the explanation given by the witness (Pw 9) is not plausible because same position is there in Ex. P. 4 for which the witness has also confronted. This much is correct that Ex. P. 3 and P. 4 have nowhere men tioned that Pannalal was sitting inside barrack when the appellant was said to have been seen in the company of the decoy. This is an important omission and lack on the part of the prosecution and in my opinion, it amounts to contradictions muchless discrepancy making the prosecution case very doubtful because, Sardarilal (PW 9) has claimed in his statement that every minutes with minor details of the raid was prepared and noted by him and nothing was left to be mentioned in Ex. P. 3. and P. 4. However, by the aforesaid statement of Pannalal (Pw 8) the prosecution, intends to draw an inference that at the time when the appellant was seen in the company of the decoy outside his office, illegal gratification was given to him. But, this important factor has not come in Ex. P. 3. and P. 4. However, by the aforesaid statement of Pannalal (Pw 8) the prosecution, intends to draw an inference that at the time when the appellant was seen in the company of the decoy outside his office, illegal gratification was given to him. But, this important factor has not come in Ex. P. 3 and P.4 and this improvement has been made in order to hide and conceal the weakness of the prosecution because, it is an admitted case of the prosecution that at the time when the raiding party reached at Kishangarh bas at about 3 or 4 p.m. the decoy went inside the police station and came back without paying the amount to be given to the appellant and it was stated by him that the meeting was going on. In these circumstances, there should have been second entry of the decoy at the police station Kishan-garhbas and in that entry, the appellant should have been shown in the company of the decoy and for this purpose/the evidence has been planted and that has been deposed by Pannalal otherwise there was no reason for not disclosing this fact in the documents prepared by Sardarilal (Pw 9) which have been marked as. Ex: P. 3 and P.4. 40. The most significant question on which the prosecution case itself hinges and further the fate of the appellant depends upon and is. to come out,-is whether any amount was given, accepted or agreed to-be accepted by the appellant as is the case, of the prosecution side. I am of the view that this crucial and fateful point has not been specifically proved by the prosecution side because it is admitted fact that at the time when the decoy went inside the police station, a meeting was going on and as per the prosecution itself as has come in its evidence, the decoy was unable to give money to the appellant. But, at the same time, it has also been admitted that at about 4 or 5p.m. when the money was alleged to have been handed over by the decoy, the meeting was continuing. I fail to understand as to how the decoy managed to hand over the money to the appellant at about 4 or 5 p.m. when the meeting was still continuing. I fail to understand as to how the decoy managed to hand over the money to the appellant at about 4 or 5 p.m. when the meeting was still continuing. In these facts and circumstances of the case, the prosecution story to the effect that at the time at the first entry of the decoy the money was not handed over to the appellant, due to the reason that the meeting was going on, is not believable. Moreover, the statement of Darshan Singh who is a responsible police officer having declared hostile, disproved the prosecution story but, merely because he has been declared hostile his testimony as a whole cannot be thrown out and if after careful scrutiny, the statement of the hostile witness appears to be trustworthy then definitely reliance can be placed on his testimony. However, the prosecution has failed to explain as to why Darshansingh turned hostile. It is not disputed that at the relevant time, he was Inspector in the Computer Department and he had no link with the appellant. Darshansingh (Pw6) in his statement has nowhere stated that the appellant had ever left the place of meeting. It is also an admitted fact that upto the time when the raid was laid, the meeting was going on. Thus, the case of the prosecution that during the course of the meeting the appellant came outside the meeting room and went in some other room and there, the appellant was seen in the company of the decoy, is not acceptable and believable. If the appellant could have left the meeting, in between, then this fact could have come in the evidence of Darshan Singh who was holding a responsible post at that time. But, looking to the entire statement of Darshansingh it appears and is evident that throughout the tenure of the meeting, the appellant was there and at about 4 or 5 p.m. Sardarilal (PW 9) had entered in the meeting room and there he asked about identity of the appellant to which Darshansingh has stated to have pointed out the appellant. In these circumstances, if the statement of Darshan Singh (PW 6) is relied upon it cannot be assumed that any amount of illegal gratification was handed over to the appellant and that too, in a normal circumstances. In these circumstances, if the statement of Darshan Singh (PW 6) is relied upon it cannot be assumed that any amount of illegal gratification was handed over to the appellant and that too, in a normal circumstances. Thus, in view of the evidence of Darshan Singh (PW 6) the testimony of Ramchandra (PW 2) and the appellant appears to be correct because, as per the testimony of Darshan Singh (PW 6), a sudden raid was laid on the appellant and the currency notes were intruded in the pocket of the appellant who must have refused to receive the money and jerked his hand as a result of which the notes came to be touched the appellant and further came to be flung across the ground inside room-which were collected by one Shrawanlal who has also not been produced by the prosecution. The aforesaid circumstances were probable. 41. Further more, looking to the contents of Ex.P. 3 and P; 4 it appears that Ramveersingh, Banwarilal, Shrawanlal, Devi Sahay, Pannalal (Pw8) Bal-kishan (Pw 3) and Kailash Chand (Pw4) were directed by Sardarilal (Pw9) that they would immediately enter in the police station just after receiving the signal by the decoy. As said earlier, Balkishan (Pw3) and Kailash Chand (Pw4) turned hostile and they were not supporting the prosecution. Apart from this, the testimony of Pannalal (Pw8) appears to be false and concocted one because he has not corroborated in respect of some important feature and bedrock of the prosecution story much less his testimony is self contradictory as discussed above. At one time, Pannalal (Pw.8) has claimed that he was present throughout at the time when the search was made by Sardarilal (Pw 9) on the person of the appellant whereas at the very same time, he has deposed that at the time of search he was sent by Sardarilal (Pw9) to call Bishanswarup (Pw7), Further, he has deposed that he put his signatures on Ex.P. 2 without going through its contents and it was not read over to him. I fail to understand that the witness who is in the police department employed how would he put his signatures on document without knowing its contents. 42. I fail to understand that the witness who is in the police department employed how would he put his signatures on document without knowing its contents. 42. Pannalal (PW 8) further gave out version that at the time when he alongwith the decoy went inside the police station, the panch witnesses also went inside it and they were standing in courtyard at that time the appellant was seen in the company of the complaint-decoy. This part of his statement has come to be contradicted by the evidence of Balkishan and Kailash Chand (PWs 3 & 4) who are panch witnesses, and is not corroborated either by the evidence of Bishanswarup (PW 7) and or Sardarilal (Pw 9). 43. It has also been stated by Pannalal (Pw 8) that the struggle in between the appellant and Sardarilal (Pw 9) and other police employees continued about 10-15 minutes but this fact has not been corroborated by any other witnesses. The witness admitted that the appellant was caught hold by the police constable but surprisingly and unfortunately none of them has come in the witness box. Pannalal (Pw 8) also deposed that for the first time he had seen the currency notes at the time when the same were lifted; but surprisingly, the witness nowhere stated as to who lifted the currency notes when Bishanswarup (Pw 7) has stated that the notes were lifted by Shrawanlal. Bishanswarup (Pw 7) is the witness who reached at the spot when Pannalal went to him while Bishanswarup (Pw 7) was staying in the jeep which was standing far away from the police station. As per the statement of Bishanswarup (Pw 7) the currency notes were lifted by Shrawanlal after he reached at the police station. In the aforesaid situation, in my opinion the statements of Bishanswarup (Pw 7) and Pannalal (Pw 8) are contradictory and thus, the testimony of Pannalal (Pw 8) is not worth to be relied upon. When the statement of Pannalal (Pw8) is disbelieved and held to be worthless then it was necessary for the prosecution to have adduced the evidence of some other persons in support of the prosecution cases and as per the contents of Ex. P.3 and P.4 the witness, as aforesaid, were available. However, I fail to understand as to why Ramveer Singh, Banwarilal, Shrawanlal and Devi Sahay etc. were not produced. P.3 and P.4 the witness, as aforesaid, were available. However, I fail to understand as to why Ramveer Singh, Banwarilal, Shrawanlal and Devi Sahay etc. were not produced. And they were the persons who as per the statement of the prosecution witnesses caught hold of the appellant at the time when the search was being made by Sardarilal (Pw 9). Where Pannalal was sitting inside the barrack of the police station is further disbelieved by the contents of the site plan (Ex. P. 13) because it is silent in this regard. 44. Sardarilal (Pw 9) is not an impartial witness who is the person arranged the trap and in these circumstances, he would obviously try to implicate the appellant by hook and crook in order to establish his case and for that purpose he could speak lie as is apparent from his statement recorded before the trial court. In this statement the witness (Pw 9) has deposed that the complainant and Panch witnesses were first to depart from him and he alongwith other police employees were to follow him. But, this witness has stated that Pannalal was also sent inside the police station alongwith the decoy who had gone inside the police station and told him (Pw 9) that he had met the appellant who had asked the decoy whether he has brought the money or not, to which the decoy had replied in affirmative and the appellant then told the decoy that the meeting is going on and the appellant had called him(decoy)after two hours. This part of the statement has not at all been corroborated by any other witnesses. This shows that the witness tried to make improvement in his statement in order to falsely implicate the appellant, because he has been lastly examined. 45. Sardarilal (Pw 9) further stated that after receiving signal of the decoy he alongwith police, party went inside police station and, there he saw that the appellant was coming out of room of the head mohrir and was entering into his office. This part of his testimony has also not been corroborated. The witness admitted that at the time when he went inside the room the meeting was going on and Darshan Singh was conducting the meeting. This part of his testimony has also not been corroborated. The witness admitted that at the time when he went inside the room the meeting was going on and Darshan Singh was conducting the meeting. Sardarilal (Pw 9) in his statement admitted that at the time when the appellant was about to run he was caught hold of by Shrawanlal, Devi Sahay, Ram Veer Singh on his (witness) direction. None of these persons have been produced by the prosecution and so, on this point, the statement of the witness is not corroborated. The witness in his statement further deposed that at the time when the appellant was continued trying to run away and at that time Darshan singh and other police officials who were in the meeting room came outside but neither Darshan singh nor any other person who were said to be in the meeting supported this part of the prosecution story. 46. With, regard to throwing of currency notes by the appellant as is stated by the witness (Pw 9), no corroboration is available. Sardarilal (Pw 9) in his statement deposed that Jaswant Singh Head Constable lifted the currency notes whereas Bishanswarup (Pw.7) has stated otherwise and according to him it was Shrawanlal who lifted the currency notes. Jaswant Singh has not been produced by the prosecution. On this fact also, the statement of Sardarilal (Pw 9) is not corroborative. The witness also deposed that in order to maintain law and order. Manoharlal Circle Officer was called because mob was there at the police station. It is again unfortunate on the part of the prosecution as to why a responsible Officer like a Circle Officer who could have been an important witness for this incident, has not been produced. In these circumstances, adverse inference can be drawn against the prosecution in not producing the important witness like Ramveer Singh, Shrawanlal, Devi Sahay and Manoharlal etc. 47. Sardarilal (Pw 9) in his statement has admitted that the signatures of the decoy on Ex-P.2 are by different inks and this is also a circumstances to create doubt on the prosecution story and testimony of this witness as to why different ink was used in obtaining signature of the decoy on the same document. 48. 47. Sardarilal (Pw 9) in his statement has admitted that the signatures of the decoy on Ex-P.2 are by different inks and this is also a circumstances to create doubt on the prosecution story and testimony of this witness as to why different ink was used in obtaining signature of the decoy on the same document. 48. The above narration and discussion of the evidence-in a very comprehensive manner fortifies the contention of the learned counsel for the appellant that the prosecution witnesses are highly interested, discrepent, and cannot be claimed be trustworthy one inasmuch as no reliance can be placed on their testimony, further the appellant cannot be convicted on such evidence being full of infirmities and contradictions. As such the learned trial court has committed illegality in convicting and sentencing the accused-appellant, basing its judgement on mere surmises and conjectures which itself makes the convic-tion illegal. 49. In my opinion, on the above analysis of the entire evidence, it can very, well be held that in the present case, the prosecution has utterly failed to prove not only passing of the money to the accused but also that he took it with a consenting mind as this is necessary proof of either an agreement to accept prior to the actual acceptance, or of his consent to accept the same as gratification at the time when the money was offered that, the story set up by the prosecution inherently militated against and is inconsistent with the fact presumed and as such the presumption will be rendered sterile from its very inception. 50. In view of the categorical position taken by the prosecution in evidence, it does not now lie in their mouth to say that the appellant must have received the money muchless can it be said that the appellant has abused his official position or has used any illegal means in acting as such. Thus, paradoxical as it may seem, the very story propounded by the decoy (Pw 2) and Sardarilal (Pw 9) negates the presumption, nipping it as it were in the bud. 51. Be that as it may, the rule of presumption engrafted in Section 4 (1) being antithetical to the prosecution story could not be availed of by the prosecution. Thus, paradoxical as it may seem, the very story propounded by the decoy (Pw 2) and Sardarilal (Pw 9) negates the presumption, nipping it as it were in the bud. 51. Be that as it may, the rule of presumption engrafted in Section 4 (1) being antithetical to the prosecution story could not be availed of by the prosecution. This being the position, the appellant could not be held guilty of the charge levelled against him with the aid of Section 4 (!) of the Act. And, the presumption engrafted under Section 4(1) of the Act on account of recovery deserves to be dismissed out of hand forthwith. In my view, the presumption raised against the appellant stood completely rebutted: In the instant case, in my view, it cannot be said that the defence version is improbable." Thus, the appellant cannot be saddled to rebut the presumption sought to be drawn against him. 52. In these circumstances, the essential ingredient of the offence under Section 5 (1) (d) read with Section (2) of the Act was Jacking in this case and so also of the offence under Section 161, IPC. So that as it may, from the oral and circumstantial evidence discussed heretofore, it cannot be said that the prosecution has brought a formidable case against the appellant and that his plea is bogus and an afterthought. And on the facts of this case, the prosecution has failed to bring home the charges against the appellant. Accordingly, I allow this appeal. 53. In the result, this criminal appeal filed by the appellant, Lallu Khan, is allowed; the judgment dated 16th and 24th July, 1985 passed by the learned special Judge, ACD, Rajasthan, Jaipur whereby the appellant had been convicted and sentenced under Section 161, IPC read with Section 5 (1) (d) (2) alongwith Section 5 (2) of the Prevention of Corruption Act, 1947 is hereby set aside, and the appellant is honourably acquitted of the charges levelled against him under the aforesaid sections. The appellant is on bail and need not surrender. The bail bonds are cancelled.