JUDGMENT 1. - In this criminal appeal, the judgment dated 3rd March, 1979 of the Special Judge (Anti-Corruption cases) Rajasthan, Jaipur convicting the appellant, Mohd. Yasin Khan, under Sec. 5(1) (d) r/w Sec-5 (2) of the Prevention of Corruption Act, 1947, (`Act' for short), and Sec. 161, IPC, and sentencing him - u/s 161, IPC - one year's R.I., u/s 5(l)(d) r/w S. 5(2) of the Act - one year's R. I. with a fine of Rs. 200/- (in default, one month's R.I.); is sought to be set aside.Factual matrix- 2. Mohd. Yasin Khan, the appellant was a Patwari, Circle Malsisar (district Jhunjhunu) against whom in his written complaint to the Deputy Superintendent of Police (Anti-Corruption Department), Jhunjhunu. ('Dy. S. P.' for short) made on 4.11.1974, Santosh Kumar Hakim (PW 6), the decoy alleged that the Patwari (appellant) entered the names of the labourers working on the land bearing khasras No. 52, 57, 121 and 122 (which are alleged to have been in the name of Daluram & Rameshwar Lal - his grand fathers, and cultivated by his father Jwala Prasad from the beginning in the Girdawari for that year, and for correcting such entries, he (appellant) demanded Rs. 200/- when contacted by him - to which he (decoy) pleaded not to pay or fulfil the demand of Rs. 200/-. Upon the said complaint, a trap was arranged - where first of all, the decoy was directed by the Dy. S. P. to meet him on 5th November, 1974 near Malsisar Hospital with the amount of gratification demanded by the accused; then the Dy. S. P. alongwith his staff proceeded in a Jeep from Jhunjhunu on 5.11.1974 and reached Malsisar hospital where found the decoy, and called for two motbir witnesses (Jagdish & Murarilal) in whose presence, the said decoy's complaint was read over and further necessary proceedings were conducted; and thereupon, the decoy produced nine Government currency notes amounting to Rs. 200/- which were initialled by the Dy. S. P. and then after being treated with phenolphthalein powder, returned to the decoy with a direction to give them to the Patwari (accused) on his demand. After usual instructions were given to the decoy & the motbir witnesses, the trap party proceeded towards the Dharamshala where the Patwari is alleged to have been living and keeping his record. S. P. and then after being treated with phenolphthalein powder, returned to the decoy with a direction to give them to the Patwari (accused) on his demand. After usual instructions were given to the decoy & the motbir witnesses, the trap party proceeded towards the Dharamshala where the Patwari is alleged to have been living and keeping his record. It is pertinent to mention here that the decoy was instructed to give signal by rubbing his head with hands after acceptance of the bribe money by the accused, and the motbir witnesses were instructed to remain present nearby the decoy so as to peep see and hear the talks in between the decoy & the accused. Thereafter the decoy went, while the Dy. S. P. stayed at a tea-stall, and entered into the Dharmshala alongwith Jai Singh (Head Constable) where the money is alleged to have been paid to the accused and thereafter when the accused was coming out alongwith Jai Singh and motbirs, he was intercepted by the Dy. S. P. who introduced himself and then asked him (accused) to produce currency notes said to have been taken by him from the decoy but to which he (appellant) denied. Thereafter, a search was made on the persons of the appellant and few notes of Rs. 270/- were recovered from his pocket but, when their numbers were got compared with the tainted numbered notes it found untallied. Upon dipping the hands of the accused in sodium carbonate solution, the colour of the water turned pink. Thereafter Jai Singh (Head Constable) was directed to search room (Patwarghar) where Jai Singh is alleged to have found a shirt hanging at the spikelet, containing therein currency notes of Rs. 310/-. After usual formalities of preparing various documents were observed, the accused was arrested, and certain documents were got recovered from the Patwarghar. Twice the accused was directed to be released on bail by the Court but still he was not released on bail by the Court but still he was not released forthwith and was illegally detained for which the accused moved a contempt petition against the investigating Officer. 3. After usual investigation, a charge-sheet was submitted against the appellant. The prosecution in all examined ten witnesses in support of its case. The accused was examined under Sec. 313, Cr. 3. After usual investigation, a charge-sheet was submitted against the appellant. The prosecution in all examined ten witnesses in support of its case. The accused was examined under Sec. 313, Cr. P. C. wherein he denied the prosecution allegations and stated that there was no question of his demanding any bribe because, he had no authority in law to make corrections in the alleged entries of the revenue record; that, while he was sitting in the verandah the decoy came to enquire about some entries; and that he did not know as to how a sum of Rs. 310/- including tainted notes reached in that shirt. The appellant further stated in his statement under Section 313, Cr.P.C. that the decoy and the motbirs being Members of the Pragatisheel Yuvak Sangh were prejudicial to him because they wanted to get a report submitted against the Sarpanch to which he had refuted them. Certain other circumstances have also been dispelled in the statement so as to infer that the decoy bore animosity with the accused. 4. After due trial, and hearing the parties, the learned trial Court passed the impugned judgment. Hence this appeal. 5. I have heard the learned counsel for the parties and perused the entire record. 6. Initially Shri Biri Singh argued on behalf of the appellant and Shri N. L. Pareek, arguing Public Prosecutor was to reply the arguments advanced by Shri Biri Singh, but, before conclusion of the arguments of the parties, the appellant changed his counsel and engaged Shri R. N. Khandelwal, Advocate. Shri R. N. Khandelwal, learned counsel for the appellant after hearing the final arguments, presented an application on behalf of the appellant praying therein to recall the decoy, Santosh Kumar (PW 5) in the witness box. Therefore, before conclusion of the arguments on the appeal, the application, referred to above, was heard and allowed on 13.3.1989, and the decoy was summoned. On 4.4.1989 the evidence of the decoy was further recorded before this Court. Thereafter twice adjournment was sought to file reply to the written arguments of the appellant by the learned arguing Public Prosecutors. But, ultimately the oral arguments were concluded. 7. On 4.4.1989 the evidence of the decoy was further recorded before this Court. Thereafter twice adjournment was sought to file reply to the written arguments of the appellant by the learned arguing Public Prosecutors. But, ultimately the oral arguments were concluded. 7. First and foremost contention on behalf of the appellant was that in the instant case, the land bearing khasra numbers mentioned in the complaint of the decoy has not been proved to be in the khatedari of the decoy of his predecessors-ancestors, therefore, there was no occasion arisen for the appellant to have demanded any illegal gratification. According to the learned counsel, when the decoy alleged that certain false entries have been made in favour of the labourers of the decoy by the Patwari and the same was required to be corrected, but, the prosecution completely failed to prove that any false entry in the revenue record was made by the Patwari. So, taking the aid of the above state of circumstance, Shri Khandelwal contended that in the absence of such a proof, very foundation of the prosecution story goes away to the very root of the matter. 8. Secondly, Shri Khandelwal for the appellant urged that it has not been proved by the prosecution that the appellant had made any demand or accepted the bribe with a consenting mind inasmuch as the tainted notes were not recovered from the possession of the appellant so, no inference or presumption of guilt can be drawn against the appellant. In this connection, Shri Khandelwal submitted that the tainted notes were found in a shirt hanging at the spikelet which was not claimed by the appellant and at the earliest time, the appellant had stated before the Dy. S. P. that the shirt wherein the tainted notes were found belonged to his predecessor. 9. The prosecution story unfolded at the trial was that the tainted notes were taken by the accused and after taking it, the appellant went inside Patwarghar and put the notes in the shirt recovered by the raiding party from the Patwarghar. S. P. that the shirt wherein the tainted notes were found belonged to his predecessor. 9. The prosecution story unfolded at the trial was that the tainted notes were taken by the accused and after taking it, the appellant went inside Patwarghar and put the notes in the shirt recovered by the raiding party from the Patwarghar. But, learned Advocate on behalf of the appellant herein wrangled that such an important fact (ut supra) dispelled during trial, has neither been mentioned in the first information report nor in the police statement of the decoy which was earlier version of the decoy, and thus, according to him, the omission of such an significant thing certainly amounts to contradiction-benefit of which must go to the accused-appellant and this feature casts a speck on the prosecution case which is totally false. 10. Learned Public Prosecutor, on the other hand, supporting the findings arrived at by the learned trial court, contended that the prosecution has proved that the appellant demanded bribe in order to make corrections in the revenue record and the bribe was accepted by the appellant with consenting mind. 11. I have considered carefully the points raised by both the learned counsel. 12. The case against the appellant, according to the prosecution, arose when certain false entries were said to have been made by the appellant in Khasra Girdawari by showing names of the labourers of the recorded tenant. As per the F. I. R. version, Khasra Nos. 52, 57, 121 & 122 were in the name of Daluram & Rameshwarlal (grand-fathers of the decoy) having been cultivated by his father, Jwala Prasad, whereas the decoy in his sworn testimony before the Court stated that in the revenue record, the appellant entered the name of his labourers who were named as Kimmu, Sultan etc, but, examination in chief, it has nowhere been stated as to against which Khasra numbers, the disputed entries were made by the appellant. In this connection, the prosecution has examined Narendra Singh (P W 5) Girdawar and asked him about Khasra Nos. 121 and 122 but it has not put even a question with regard to the Khasra Nos. 52 & 57. In this connection, the prosecution has examined Narendra Singh (P W 5) Girdawar and asked him about Khasra Nos. 121 and 122 but it has not put even a question with regard to the Khasra Nos. 52 & 57. As regards Khasra No. 121 and 122, Narendra Singh (P W 5) has stated that in Column No. 7, the name of Gharsi appeared as sub-tenant ; and in Khasra Girdawari register (Art. 15), the entries (Ex. P. 10 & P. 11) of Smt. year 2031 with regard to Khasra Nos. 121 and 122 were made by the appellant. According to Narendra Singh (P W 5), in his cross-examination, the corrections in Khasra Girdawari in the matter of sub-tenant could not be done by the Patwari. According to the decoy (P W 6), Kimmu Khan, Sultan were the labourers who were cultivating the land on his behalf, but, I may state that none of these labourers have been examined by the prosecution. So far as Gharsi is concerned, he has been examined as Prosecution witness but he stated that only once, he cultivated the land of Jwala Prasad and he never asked revenue authorities to enter his name in the revenue record. 13. In order to critically examine the facts (ut supra), I perused the relevant revenue record. Article 18 is the Jamabandi of Smt. year 2020 to 2023 (annual register) where Khasra Nos. 121 and 122 are shown at Khatauni No. 32 which says as under:- Kaluram, Madan, Shri Lal, sons of Rameshwarlal by caste Mahajan, resident of village Gram - Khatedar (tenant) Gharsi s/o Chimma by caste Regar r/o Gram Up - Krishak (sub-tenant) - Seven years. It is thus clear that the prosecution in no circumstance disputed the entries made in this Jamabandi (annual register) and these entries show that the name of Gharsi has been entered as sub-tenant and that this entry was not only for the year Smt. 2020-23 but it shows Gharsi recorded sub-tenant earlier to Smt. year 2020 for seven years prior to it. Moreso, from this entry, only inference which can be drawn is that Gharsi was sub-tenant of this land atleast since Smt. year 2013. 14. Section 140 of the Rajasthan Land Revenue Act provides that all the entries made in the record of rights shall be presumed to be true until the contrary is proved. Moreso, from this entry, only inference which can be drawn is that Gharsi was sub-tenant of this land atleast since Smt. year 2013. 14. Section 140 of the Rajasthan Land Revenue Act provides that all the entries made in the record of rights shall be presumed to be true until the contrary is proved. In the present case, undisputedly Khasra Girdawari is not covered by the definition of Record of rights and annual register (Jamabandi) is covered by Record of rights. So, in view of the provisions of Section 140 of the aforesaid Act, a presumption is there with regard to the entries in the annual register and the entries shall be presumed to be true until the contrary is proved. The case set up by the prosecution is that even the name of Gharsi has wrongly been mentioned in the annual register but, merely because, the entries are disputed and Gharsi appeared in the witness box, such an entry in the annual register could not be held or presumed to be incorrect, inasmuch as admittedly this entry pertained to the year 2013 (Samvat) which continued for years together but, neither Gharsi nor the decoy or his predecessor never made any objection or filed any revenue suit for the correction of the entries. In these circumstance, merely by producing Gharsi as a witness the burden as is provided under Section 140 of the aforesaid Act cannot be said to have been shifted and, so, there is no option before this Court except to observe that of course, Gharsi was sub-tenant of the land bearing Khasra No. 121 and 122-the said entry was undoubtedly made by a person other than the appellant because he had been posted as Patwari of Malsisar circle only a few months before the trap ; and these facts induce me to hold that the appellant cannot be held to have made false or any fictitious entry in the annual register pertaining to the land bearing Khasra Nos. 121 and 122, upon which, no adverse inference or presumption can be drawn against the appellant. 15. Next document seized by the police is Art. - Register of Khasra Girdawari under the Caption Khasra Girdawari of Samvat year 2029 to 2031 - the entries made therein pertaining to Khasra Nos. 121 and 122 have been marked as Ex. P. 10 & P 11. A look at these entries (Ex. 15. Next document seized by the police is Art. - Register of Khasra Girdawari under the Caption Khasra Girdawari of Samvat year 2029 to 2031 - the entries made therein pertaining to Khasra Nos. 121 and 122 have been marked as Ex. P. 10 & P 11. A look at these entries (Ex. P. 10 & P. 11) shows that in columns 16, 24, & 40 which are meant to mention the name of actual cultivator there is nothing mentioned and these columns are blanks, but in column 6, same names are repeated as are mentioned in annual register, which I have discussed earlier. I may state that in case where columns 16, 24 & 40 are kept blank then under the revenue law, only inference which can be drawn is that the land is cultivated personally by the recorded tenant whose name has been mentioned in column 6 of Khasra girdawari. Thus, in view of the entries made in khasra girdawari for Samvat years, 2029, 2030 & 31, it cannot be inferred that any incorrect entry has been made in Article 15 at Ex. P. 10 & P. 11, inasmuch as it can also be said that the decoy was not in a position to make any protest against these entries. 16. Looking to the statement of the decoy either before the Court or the police, it can also be said that the decoy is not familiar to his own land rather the land is not at all known to him because, the decoy in his statement before this Court, has stated that all the lands for which trap dispute arose, are situated in village Manruppura but Khasra Nos. 121 & 122 situate in village Malsisar. So, even if the statement of the decoy, for the sake of arguments, is admitted to be correct then it can be said that the entries (Ex. P. 10 & P. 11) are not pertaining to the land claimed by the decoy as he claimed the land in question to have been situated in village Manruppura. 17. So, even if the statement of the decoy, for the sake of arguments, is admitted to be correct then it can be said that the entries (Ex. P. 10 & P. 11) are not pertaining to the land claimed by the decoy as he claimed the land in question to have been situated in village Manruppura. 17. The Investigating Officer seized Article 16 Khasra Girdawari of Samvat year 2028-31 of village Manruppura wherein Khasra No. 121 is not in Khatedari either of the decoy or his predecessor but it is in Khatedari of Maliya Dhobi whereas Khasra No. 122 did not at all exist in village Manruppura and Khatauni entry No. 23/122 is recorded as Gair Mumkin Rasta thereby a land used for thorough fare & not available for cultivation. In this state of situation, so, if the statement of the decoy is admitted then it can be said that he has given false statement with regard to Khasra Nos. 121 and 122 of village Manruppura. 18. The decoy in his complaint has mentioned two more Khasra numbers i.e. 52 & 55 situated in village Manruppura. Vide Ex.P. 12, Khasra No. 52 is shown in the Khatedari of Jwala Prasad. Similar is the situation of this Khasra Number with regard to entry in columns 16, 24, & 40 which are left blanks. So, for this, an inference can be drawn that this land has been cultivated by the tenants whose names are mentioned in col. 6, and in the presence of this entry, it cannot be alleged by the decoy that the Patwari has made entries in favour of the labourers for their lands-numbers of which have been mentioned in the report. Khasra No. 55 situated in village Manruppura is also recorded as Gair mumkin Rasta meaning thereby this land is not available for cultivation and the same was being used for a public way. It is this clear that the decoy claimed Government land or public land used but the so-called claim is not supported by the revenue record. 19. Learned trial Court placed reliance on the entries (Ex. P. 14) in Article 17. To my knowledge, the Register (Art. 17) titled as Register `Tabdil Kasht' has no meaning in the revenue laws. It is this clear that the decoy claimed Government land or public land used but the so-called claim is not supported by the revenue record. 19. Learned trial Court placed reliance on the entries (Ex. P. 14) in Article 17. To my knowledge, the Register (Art. 17) titled as Register `Tabdil Kasht' has no meaning in the revenue laws. This view finds support from the testimony of Narendra Singh (PW5) who has stated that the entry in the Article 17 can/could be introduced in Khasra girdawari only when the same is verified by the S.D.O. who is statutory authority to have a round during girdawari operation so as to check entries and correct if the same is found to be incorrect. 20. After having gone through the entire prosecution evidence. I do not at all find that any of the prosecution witnesses has given any statement with regard to the entry pertaining to Khasra No. 52 in Article 17. It is surprised as to how and why the trial Court marked Ex. P. 14 for the entry of Khasra No. 65 which shows to be in the khatedari of one Kesri widow of Puran Dhobi. 21. Whatever has been discussed above induces me to hold that the decoy made a false and fictitious claim with regard to the agricultural lands, and that the trial Court not only fell in error in placing reliance on Ex. P. 14 while basing conviction upon the appellant; and tout aucontraire apparently, the trial Court did not make any attempt to consider salient legal features of the case but also shows that it eschewed all these features (ut supra) as irrelevant for, while convicting the appellant on the basis of document (Ex. P. 14) which verily was not at all relevant in the present case. 22. Santosh Kumar (PW 6), the decoy was summoned by this Court so as to clarify the infirmity pointed out above in respect of the entries in the revenue record pertaining to the land claimed by him; and his statement was recorded on 4.4.1989 wherein he has clearly admitted that all his land in dispute situate in village Manruppura, and as said earlier, this piece of evidence is absolutely false. The decoy (PW6) was asked to show as to from which entry he was aggrieved - correction of which was being sought from the Patwari; but to most questions the decoy did not give prompt & straight forward answers, inasmuch as he failed to specifically reply and gave a vague evidence indulging himself in equivocation so as evade, parry and hide something. It would be advantageous to quote such a piece of evidence from his statement: " eq>s irk ugha fd dkSu ls lky ds lEcU/k esa og bUnzkt FksA etnwjksa ds uke lqYrku vkSj fdew [kka gSA bDth ih&12 esa fdlh Hkh etnwj dk bUnzkt ugha gSA ,Dth ih&13 esa [kljk uEcj 55 ds fy, [kkuk uEcj 52 esa esjs firkth dk uke gdnkjh dk bUnzkt gSA vkSj [kkus dk'r esa [kqn dk'r esa [kqn dk'r fy[kk gqvk gSA ,Dth ih&10 ,oa ih&11 Hkh fdlh etnwj ds uke bUnzkt ugha gSaA " 23. From the above version given out by the decoy (PW 6), it is abundantly clear that as is admitted by the decoy, in the record seized by the investigating officer, nothing wrong was entered. Admissions wrung out from the witness in his statement makes it precisely clear that there was no occasion for the decoy to have gone to the appellant in order to seek any correction in the revenue record which was not at all, as discussed above, incorrect. It is thus explicit that the origin of the case is washed and there was no occasion for the decoy to have gone to the Patwari and also that the appellant was not at all in a position to make any demand from the decoy or to receive any tainted notes with a consenting mind. In the light of what has been discussed (ut supra) in addition to the entries in the relevant documents referred to and discussed above, the bonafide of the appellants has amply been proved by the prosecution, itself. 24. In the light of what has been discussed (ut supra) in addition to the entries in the relevant documents referred to and discussed above, the bonafide of the appellants has amply been proved by the prosecution, itself. 24. In the absence of any convincing evidence about the giving of the currency notes as illegal gratification and their acceptance by the appellant, the conviction of the appellant cannot be maintained and in the background of such evidence, the absence of any evidence about the earlier part of the story also becomes significant that there is nothing to suggest that there were incorrect entries in the revenue record or that there was anything for which the appellant could have helped the decoy. This view (ibid) finds place in the decision of the Madhya Pradesh High Court (Per G. L. Oza, J. as he then was) in Chakradhar Singh v. State of M.P., 1984 (1) Crimes p. 122 . 25. According to the decision of the Delhi High Court in State v. Satish Chand Sharma, 1986 (2) Crimes p. 102 , it is absolutely necessary for the prosecution to show that the accused was in a position to do the alleged favour. In view of what has been held by other High Courts, referred to above, the circumstances should have been there so as to show favour to a particular person; but there is great deal to be said against the prosecution which I have discussed in earlier part of my this judgment, and in the present case, there was no occasion for the appellant to have shown any favour to the decoy because there is nothing to suggest that there were incorrect entries in the revenue record which could only have been corrected by the appellant under his statutory authority. 26. According to the decision of the Apex Court in Madan Mohan v. State of Uttar Pradesh, AIR 1954 SC 637 , when a public officer who no doubt has no right to demand any bribe, is hauled up before a criminal court to answer a charge of having taken illegal gratification, the question whether any motive for payment or acceptance of bribe at all existed is certainly a relevant and a material fact for consideration. 27. 27. Thus, adopting from what has been laid down by their Lordships in cited decision (supra) in my view, the motive in the instant case as discussed above for payment or acceptance of bribe is completely lacking and the prosecution has utterly failed to establish and prove such an important & significant essential feature so as to base the conviction upon the appellant. Contrarily, it has made probable to infer that the decoy was under the influence of the Dy. S. P. against whom the appellant has levelled allegation in his statement so also in Ghatna Bahi (Art. 22) dated 19.10.1974, 20.10.1974 & 30.10.1974. 28. The Panch witnesses cannot also be held to be independent one because the decoy and the Panch witnesses, Jagdish & Murarilal were admittedly the member of Adarsh Yuvak Mandal Malsisar and thus being interested in the decoy could not be independent witnesses, and upon their evidence no reliance can be placed while basing the conviction upon the appellant, as has been observed in 1981 Cr. L. J. 653. Moreso, the facts and circumstances dispelled from the prosecution evidence induce me to hold that the Dy. S. P. in connivance with the decoy and motbirs foisted a false case against the appellant in order to give a vent to his annoyance and hatred feelings as the appellant had evidently refuted to foist a case against the Sarpanch on the complaint of the decoy. In these circumstances, the prosecution cannot take a plea that the evidence of the Government officials cannot be disbelieved. For this, reliance can be placed on the decision of the Supreme Court in Ramjanam Singh v. State of Bihar, AIR 1956 SC 643 . 29. I must reiterate that in the instant case, there was no occasion for making any of bribe by the appellant but, the appellant has been convicted by the trial Court on the ground that the demand is proved against him. Assuming that bribe was demanded, though that is not my finding, there is great deal to be said against the prosecution. In my view, after considering the entire material I am of the opinion that the learned trial Court has not taken a view of evidence which can be dubbed as un-reasonable or perverse. To my kind, otherwise also, on the facts of this case, that appears to be the only possible view. In my view, after considering the entire material I am of the opinion that the learned trial Court has not taken a view of evidence which can be dubbed as un-reasonable or perverse. To my kind, otherwise also, on the facts of this case, that appears to be the only possible view. But, if for some reason these observations on my part are not considered enough to dispose of this appeal, I would like to add that in my view neither the prosecution story nor the prosecution witnesses are inspiring, but it is too shaky. 30. On the point of demand of bribe, there is solitary statement of the decoy (PW6) who is not of sterling worth. In the F. I. R. he has not mentioned as to on what date and day such a bribe was demanded. In court statement, the decoy (PW 6) deposed that on 3rd November, 1974 the appellant demanded the bribe. In the F. I. R. and examination-in-chief before the Court, the decoy has stated that he met the accused only once but in cross-examination he admitted that the accused demanded bribe from him thrice or 3-4 times and the first demand was made on 3.11.74. Further, as per his statement, the decoy approached the Dy. S. P. on 4.11.1974. Thus, such a testimony of the decoy cannot be regarded as a trivial or insignificant discrepancy having no relevance to the veracity of the prosecution case. It is a significant departure made by the decoy in his evidence. I do not think that his evidence can be regarded as reliable or trustworthy. It leaves an indelible infirmity on the evidence led on behalf of the prosecution so far as the demand for bribe alleged to have been made by the appellant is concerned. 31. My view is fortified by the decisions in Shantilal v. State of Rajasthan, 1975 Cr.A.R. (SC) p. 431 and in Hari Dev v. State, 1976 Cr.L.J. 1176 SC . Thus, in the light of what has been laid down by the Apex Court in the cited cases (supra), in the instant case the demand for bribe is not proved. 31. My view is fortified by the decisions in Shantilal v. State of Rajasthan, 1975 Cr.A.R. (SC) p. 431 and in Hari Dev v. State, 1976 Cr.L.J. 1176 SC . Thus, in the light of what has been laid down by the Apex Court in the cited cases (supra), in the instant case the demand for bribe is not proved. The Apex Court has observed that the demand for bribe is the genesis of the case in such cases and if that part is not established and found proved the accused cannot be convicted on the remaining part i. e. merely on the recovery of amount. 32. This takes me to deal with another aspect and limb of the point under consideration, i. e. whether the prosecution has been able to prove that the accused-appellant accepted tainted notes from the decoy. In this connection, the prosecution case rests on the evidence of Murarilal (PW3), Santosh Kumar (PW6) Jagdish (PW 7) & Jai Singh (PW 8). 33. The prosecution case as unfolded during trial is that the decoy was sent to make payment of bribe to the accused in the Dharamshala and other witnesses were asked to follow the decoy so as to see passing of the notes and hear the conversation in between the decoy & the accused but, Murarilal (PW 3) has not support the version of the decoy, and according to him (PW 3) he has not seen passing of the notes nor saw the recovery of notes as they reached later when the amount was found laying on the ground outside Patwarghar. As per the evidence of the decoy (PW 6) he was the only person who went inside Patwarghar and handed over the tainted notes. But, surprisingly enough, he nowhere in his statement deposed that Jai Singh also accompanied him but Jai Singh (PW 8) not only became eye witness of the trap but also posed himself to be the main witness by saying that on his giving signal the trap party reached at the site. His evidence (PW 8's) is belied by the decoy's evidence which gives out that the signal was giving by him. His statement is further belied by the evidence of Jagdish (PW 7) who did not name Jai Singh (PW 8) but stated that one of the police employee who accompanied the docoy gave signal. 34. His evidence (PW 8's) is belied by the decoy's evidence which gives out that the signal was giving by him. His statement is further belied by the evidence of Jagdish (PW 7) who did not name Jai Singh (PW 8) but stated that one of the police employee who accompanied the docoy gave signal. 34. In the present case, PW 6 to PW 9 are the material witnesses and they have given out different version with regard to their position taken at the time of trap and raid. In view of this contradictory version, their evidence cannot be believed and in this view of the matter, the trial Court fell in error in placing reliance on the testimony of these false and partial witnesses. There is hardly any need for me to detail different part of the prosecution evidence being contradictory in nature in addition to full of infirmity. The decoy excluded the presence of Jai Singh inside Dharamshala; Murarilal also does not state about his entrance alongwith Jai Singh apart from other motbirs, inside Dharamshala. When Jagdish could not state the passing of the notes, surprisingly how could Jai Singh see the passing of the notes. According to the decoy, in verandah after accepting money the accused made some correction in the record but, this piece of his evidence is not at all supported or corroborated by other witnesses. And, as said earlier, the prosecution completely failed to produce those documents which are alleged in the statement of the witnesses so as to establish that the accused made certain corrections in certain registers after receiving the bribe. 35. Another curious feature which casts a speck on their evidence is that in the site plan (Ex. P. 7) the place where both the motbirs & Jai Singh are alleged to have been standing, has not been shown- which was necessary for the investigating Officer in order to ascertain as to whether the witnesses were in a position to peep, see & watch over the passing of the tainted notes. This leads me to infer that none of them including Jai Singh was the eye witness of the passing of tainted notes. 36. Next crucial question is of recovery of tainted notes. Admittedly, the tainted notes were not recovered from the possession of the accused, and were recovered from a pocket of a shirt inside Patwarghar. This leads me to infer that none of them including Jai Singh was the eye witness of the passing of tainted notes. 36. Next crucial question is of recovery of tainted notes. Admittedly, the tainted notes were not recovered from the possession of the accused, and were recovered from a pocket of a shirt inside Patwarghar. It is significant to note that the appellant at the spot had denied that the shirt belonged to him. Therefore, it was the duty of the prosecution to prove that the shirt belonged to the accused. But, in this connection, no efforts have been made by the prosecution. Murarilal (PW 3) does not support the fact that the shirt was taken out and the money was recovered from its pocket. The prosecution case was that at the time when the appellant was coming out of the Dharamshala after receiving bribe, he was intercepted by the Dy. S. P. and the appellant was asked to hand over the amount of bribe alleged to have been taken by him and at that time, the appellant refused for the same; thereupon search was made. It has nowhere been stated that at the time when the search was made, the decoy was not present. I fail to understand that when search was going on in the presence of the decoy then why the decoy did not state that the amount of bribe was left by the appellant in the pocket of the shirt hanged at the spikelet inside room. This conduct on the part of the decoy creates aspersion raising reasonable doubt on the prosecution story - benefit of which must go to the appellant. 37. The recovery further becomes doubtful on the testimony of the decoy when he deposed that the Dy. This conduct on the part of the decoy creates aspersion raising reasonable doubt on the prosecution story - benefit of which must go to the appellant. 37. The recovery further becomes doubtful on the testimony of the decoy when he deposed that the Dy. S. P. and one constable went inside Patwarghar and brought a shirt whereas the prosecution case as unfolded in the decoy's evidence is that after receiving the bribe, the appellant put tainted notes in the shirt which was hanging at the spikelet but this fact has not been disclosed by the decoy in his police statement which was earlier in time, and because of this reason also, the decoy was re-called by this Court and he was cross-examined on the point and was asked to give any explanation upon which he deposed that he did see that the tainted notes accepted were put by the appellant in a shirt hanged at the spikelet but he showed in his inability to say as to why this fact was not stated in his police statement. In view of the said laches in the police statement it becomes highly doubtful that the shirt found in Patwarghar having tainted notes was of the accused-appellant or that the tainted notes were put in the pocket of the shirt by the appellant. As said earlier, it has come on record that the decoy was to first enter into the room (Patwarghar) to see the revenue record and at that time, the appellant was sitting in verandah i.e. outside the room. It is also the testimony of the decoy that Dy. S. P. went inside Patwarghar alongwith one police employee and brought a shirt in question when the accused was outside Patwarghar. 38. Jagdish (PW 7) has given out different version on the above context by saying that the Dy. S. P. directed his own subordinate to search Patwarghar and on his direction, one of the employee went inside Patwarghar and brought Article 14 - torn shirt. The witness (PW 7) further stated that an amount of Rs. 200/- was found in that shirt whereas other witnesses stated that an amount of Rs. 310/- were recovered from the pocket of the shirt. It is thus clear that the evidence of prosecution witnesses is not consistent. 39. The witness (PW 7) further stated that an amount of Rs. 200/- was found in that shirt whereas other witnesses stated that an amount of Rs. 310/- were recovered from the pocket of the shirt. It is thus clear that the evidence of prosecution witnesses is not consistent. 39. Jail Singh (PW 8) deposed that he went inside Patwarghar for search and brought the shirt from there but, in cross-examination, he admitted that the money kept in the shirt pocket were taken out by the Dy. S. P. who has given out different version on this point. It is thus clear that the prosecution evidence on the point of recovery of the shirt containing the tainted notes is not consistent. Though, Jai Singh and Fateh Chand Soni (Dy. S. P.) in their statement before the Court that the search was made on the person of Jai Singh before he was directed to go inside Patwarghar for search. Probably this fact has been stated by this witness apprehending that the Court should not draw adverse inference against the prosecution by holding that the shirt was planted in Patwarghar. It is significant to note that in the recovery memo (Ex. P. 3) it has not been mentioned that Jai Singh was sent before, inside room. In view of the aforesaid prosecution evidence, it cannot be over-ruled that the shirt was planted there in Patwarghar by the decoy or by the investigating officer or by Jai Singh. 40. As said earlier, the evidence of the star witnesses for the prosecution are not consistent and the statement of the police inspector is contradictory to the evidence of other prosecution witnesses and in that situation, the statement of the police inspector cannot be held to be reliable. For the above observation, reliance can be placed on the decision in Bahadur Singh v. State, (1988 (1) Crimes 282) . 41. It is settled principle of law that mere recovery of money divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement under S.313, Cr.P.C. has denied the recovery of the money and has stated that he has falsely been implicated. Moreover, the appellant in his statement under S.313, Cr.P.C. has denied the recovery of the money and has stated that he has falsely been implicated. Similarly, it is settled law that where witnesses make two inconsistent evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in this state of thing, no conviction can be based on the evidence of such witnesses. The aforesaid view is fortified by the decision in Surajmal v. Delhi Administration, (1981) Cr.A.R. p 30 . Thus, mere recovery by itself cannot prove the charge of the prosecution against the appellant in the absence of any bribe or to show that the appellant voluntarily accepted the money. 42. In view of the flaws pointed out above, the appellant cannot be convicted merely on the ground that the colour of the water solution turned pink when the hands of the appellant were got washed out but, looking to the consequences of the circumstances discussed (ut supra), it cannot be ruled out that the hands of the appellant might have licked with the hands of the decoy because he was first person to contact the appellant at Patwarghar as is admitted by him in his statement before the trial Court as well as this Court. A suggestion was given to the decoy (PW 6) that had he shaken hand with the appellant, but the witness had shown his ignorance. In this state of thing, it is probable that the decoy might have shaken hands with the appellant and at that time, anthracene powder might have licked with the hands of the appellant. 43. An analysis of the evidence adduced by the prosecution does not in my opinion lead to an unerring certainty that the appellant had acted with any dishonest or corrupt motive or abused his position. 43. An analysis of the evidence adduced by the prosecution does not in my opinion lead to an unerring certainty that the appellant had acted with any dishonest or corrupt motive or abused his position. In view of what has been discussed elaborately (ut supra) it can very well be held that in the instant case the prosecution has utterly failed to prove not only motive behind the demand for bribe in addition to passing of the money to the accused but also that he took 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 apart further failed to establish the recovery of the tainted notes beyond any manner of reasonable doubt against the appellant connecting him with the culpability; that, the story set up by the prosecution inherently militated against and is inconsistent with the fact presumed. The Court below failed to assess the destructive effect of vital contradiction on circumstances narrated (ut supra). At any rate, the material contradictions referred to in preceding paras of this judgment should have put the court below on their guard, not to accept the prosecution story. Now, it is well established that the prosecution has not firmly established the guilty of the accused. 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 with any motive and any authority. Thus, paradoxical as it may seem, the story propounded by the decoy and the investigating officer negates the presumption, nipping it as it were in the bud. Over and above all this, there is no wonder that the decoy got the trap arranged to give a vent to his annoyance and hatred feelings as the appellant had refuted to foist a case against the Sarpanch. 44. For reasons stated above, the conviction of the appellant is bad and cannot be maintained. In the result, the appeal of the appellant, Mohd. Yasin Khan, is allowed. 44. For reasons stated above, the conviction of the appellant is bad and cannot be maintained. In the result, the appeal of the appellant, Mohd. Yasin Khan, is allowed. His conviction and sentence under both the counts (ut supra) are set aside and he is acquitted, holding that on a careful appraisal of the evidence of the parties, the irresistible impression is that the accused was more sinned than the sinner. He is on bail and need not surrender. His bail bonds stand cancelled.Appeal allowed. *******